A Case Study on Nullification: Marijuana Laws


I’ve written a few of posts mentioning nullification: Tom Woods on NPR, Tom Woods’ article on anti-nullifiers, and challenging the notion that the Supreme Court ought to have a monopoly on Constitutional interpretation.

Tom Woods wrote the book on this subject and has FAQ.

But the first thing I would like to ask in today’s post is: “How much does it matter that nullification has a Constitutional or historical basis?” The more I think about it, I find that my answer is: “It matters only to the extent that people will accept its use as a method for decentralizing power.” If it were to be shown, beyond a doubt, that nullification is, in fact, unconstitutional, that wouldn’t matter one bit to me in terms of its legitimacy. I took no oath to uphold the Constitution; I was forced under it at birth.

It seems ridiculous that the same people who accept no limits on federal power are often the same ones who declare nullification unconstitutional. But most of what is considered “constitutional law” has nothing to do with the Constitution, but with legal precedents. For example, judicial review is not in the Constitution. It was a precedent set by Marbury v. Madison (1803).  In the same way, why can’t states nullifying federal laws set a precedent? According to the anti-nullifiers’ own logic, nullification would have to be acceptable.

Photo of Mark ThorntonAnd we have several precedents of states doing just that. A recent example is of Washington and Colorado decriminalizing marijuana and Mark Thornton writes a fantastic article about it.

One particularly interesting point he makes is that, in doing this, Washington and Colorado are effectively nullifying a UN Law as well. He says,

In effect, the voters of Colorado and Washington have placed themselves and their states on equal legal footing with both national and international governments. This is important, because, if thanks to nullification, governments have to obtain acceptance, or at least acquiescence from subsidiary governments, rather than just imposing their dictates on them, they are more likely to act in a less threatening and harmful manner.

Of course, there is the possibility that the federal government will try to crack down on marijuana distributors and users in those two states, but I think any such effort would backfire in terms of the federal government’s legitimacy in the minds of Americans. So either way, whether the feds let this pass unabated or decide to punish these states for rebelling against them, I think nullification will become more acceptable.

Whether or not you believe the use of marijuana is moral and/or safe, if you advocate freedom then you should also think this is a good development for several reasons.

  1. States nullifying federal laws results in a devolution of power to a more local level. The more it is used, the more acceptable it will become as legitimate.
  2. The drug war has been a horrible thing for individual freedom. Going back to the subject of constitutional law, nothing besides the “War on Terror” has eroded civil liberties as much as the “War on Drugs.” The Court has allowed more latitude to police in conducting pat-downs, searches, seizures, etc. in pursuit of the drug war. I am a victim of this, even though I have never used illegal drugs. Don’t think that it doesn’t concern you just because you don’t use drugs.
  3.  It is prohibition that incentives almost all of the violence associated with illegal drugs. We can look to alcohol prohibition as an example.
  4. The drug war costs a lot of money. Just take incarceration alone. It costs at least $20,000 per year to house a typical male inmate. Over half of people in federal prison are there for drug-related charges. If people knew how much they were personally paying to finance the drug war, they would likely not support it.

There are other reasons I could list, but I’m sure you get the point. Nullification seems to be a real way to roll back the federal government, rather than all the efforts focused on national elections and politics. Please let me know if you disagree.

Thanks for reading.


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