Constitutionally, the federal government doesn’t have the authority to ban the production and sale of a plant. (learn more here)
States resisting federal “laws” banning marijuana (cannabis is the correct term, rather than the popular one), are affirming the proper view of Article I, Section 8, Clause 3 of the Constitution – the commerce clause.
As understood at the time of the founding, the regulation of commerce was meant to empower congress to regulate the buying and selling of products made by others (and sometimes land), associated finance and financial instruments, and navigation and other carriage, across state jurisdictional lines. This interstate regulation of “commerce” did not include agriculture, manufacturing, mining, malum in se crime, or land use. Nor did it include activities that merely “substantially affected” commerce.
On August 29, 2013, the DOJ issued a letter to Colorado and Washington State effectively giving up on their failed attempt to stop the states from legalizing cannabis. Learn more here
While this is an expected, but welcome, backing off by the Federal Government, it’s still just the beginning. In order to win this issue and fully nullify, states and localities must continue the pressure in new and even more effective ways. See the action steps to the right for more, and scroll down below these maps to see more info on the model legislation.
Legend: Blue – Introduced. Yellow – Passed one or more houses.
Green – Became Law. Black – Failed Vote or Stalled in Committee.
2013 Legislation (scroll down for previous session activity)
View State Marijuana Legislation: 2011 in a larger map
The Cannabis Freedom Act is a simple, yet powerful tool to nullify federal gun “laws,” rules, regulations, and the like. It can and should be introduced at both the state and local level.
It begins with the basis that the federal government doesn’t have authority to make them. From there, it’s a straightforward stand-down requirement for the entire state on the enforcement of any federal gun control measures.
Since a vast majority of federal enforcement actions require the leadership, help and/or assistance of state or local governments, agents and resources – widespread refusal to enforce or participate in enforcement will severely cripple federal efforts.
Judge Andrew Napolitano confirmed this by saying that such noncompliance over an entire state would make federal gun laws “nearly impossible to enforce.”
JAMES MADISON’S ADVICE
This process is under the direct advice of James Madison, who wrote about it in Federalist #46:
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.
Let’s break down Madison’s prescription.
“Should an unwarrantable measure…” What does Madison mean by “unwarrantable?” The word literally means “unjustifiable.” Madison was clearly talking about federal acts with no constitutional justification. In other words, unconstitutional.
But notice something interesting, Madison implies that state governments can even resist a “warrantable” or justifiable federal act.
So what does Madison suggest states do when the feds overstep their authority?
“…the means of opposition to it are powerful and at hand.” Madison anticipated the possibility of federal usurpation and clearly believed the states would serve as a check on federal power. He believed the states should and would resist unconstitutional acts.
So, what are the “means of opposition?”
1. Disquietude of the people – This would include protests and petitions generated at the grassroots level. Madison expected the people would throw a fit when the feds usurped power – even using the word “repugnance” to describe their displeasure. That’s a pretty strong word. And inevitably, disquietude leads to action – first at the local level, then bubbling up to the state level. That leads to the next step.
2. Refusal to co-operate with the officers of the Union - Noncompliance. We preach it every day at the Tenth Amendment Center. Madison apparently knew what we know today. The feds rely on cooperation from state and local governments, as well as individuals. When enough people refuse to comply, they simply can’t enforce their so-called laws.
Noncompliance works. And it should be happening at both the state and local level.
3, The frowns of the executive magistracy of the State - Here Madison envisions governors formally protesting federal actions. This not only raises public awareness; executive leadership will also lead to the next step – legislative action. Prior to passage of the Kentucky Resolutions of 1798, Gov. Garrard delivered a powerful message condemning the Alien and Sedition Acts and calling on legislative action.
4. Legislative devices, which would often be added on such occasions -What exactly does Madison mean by “legislative devices?” He doesn’t make that clear. But we know they include resolutions, because he and Thomas Jefferson penned the Kentucky and Virginia Resolutions in response to the draconian and unconstitutional Alien and Sedition Acts of 1798. Together, these Principles of ’98 formalize the doctrine of nullification.
But do legislative devices stop at non-binding resolutions? Clearly not, because Madison said these measures would create “difficulties” and “impediments.” 18th-century dictionaries list “obstruction” as a synonym for impediment. In other words, these legislative devices could serve to block the operation of unconstitutional power. This infers actions including formal, binding prohibitions of state or local cooperation, and outright interposition: “to intervene or place an agency between two positions.”
The personal liberty laws passed by northern states to thwart the Fugitive Slave Act of 1850 serve as the best historical example of “legislative devices.”
The Fugitive Slave Act of 1850 made a farce of due process, allowing for the arrest of a suspected runaway slave based on the word of the “property owner.” He simply had to swear an affidavit attesting to his “ownership” of the person in question, and he was allowed to drag that man or woman back South into slavery. The accused wasn’t even allowed to present evidence in his own defense. The act was meant to protect the “property” of slave holders, but many free blacks found themselves accused of escaping slavery and faced the prospect of living out their life on a plantation. And northerners understood that even an accused runaway should remain innocent until proven guilty, and enjoy basic due process rights.
Instead of simply submitting to federal authority and quietly participating in constitutionally dubious and morally repugnant fugitive-slave roundups, northern lawmakers aggressively resisted the fugitive slave acts. Officials in these states did everything within their power to thwart enforcement, including denying federal agents the use of jails, and even impeaching state officials who lent support to fugitive-slave claimants. The Michigan legislature passed a law guaranteeing habeas corpus rights and a jury trial to any accused runaway, all in defiance of federal “law.” Some states went as far as to subject anybody attempting to remove a accused fugitives from the state without following the prescribed state procedure to kidnapping charges. And there were documented cases of arrests of federal agents.
Madison said these actions would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.
Was he right? Well, northern resistance to the Fugitive Slave Act of 1850 was so effective, South Carolina listed “nullification” of the fugitive slave laws in its declaration of causes for secession.
Madison clearly expected the states to serve as a check on federal power. He laid out the blueprint. And when the people of states have followed it, they’ve found success.
As Madison said, the means are “powerful and at hand.”
Some opponents of these efforts claim that the U.S. Constitution’s “supremacy clause” prevents your local community from taking action. But this is a complete misunderstanding, not only of the supremacy clause, but of the local legislation as well. There is absolutely ZERO serious dispute about the fact that the federal government cannot “commandeer” the states (or their political subdivisions, local governments) to carry out its laws. None. Even the Supreme Court has affirmed this multiple times.
In the 1992 case, New York v. United States, the Supreme Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.
In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.
In the 2012 case, National Federation of Independent Business v. Sebelius, the Supreme Court ruled that a significant expansion of Medicaid was not a valid exercise of Congress’s spending power, as it would coerce states to either accept the expansion or risk losing existing Medicaid funding.
In each case, the Supreme Court made it quite clear that, in their opinion, the federal government cannot require the states to act, or even coerce them to act through a threat to cut funding. Their opinion is correct. If the feds pass a law, they can sure try to enforce it if they want. But the states, and your local communities, absolutely do not have to help them in any way.