The movement to legalize marijuana at the state level is often described as “nullification.” Strictly speaking, however, this is not nullification. Genuine nullification is where a state declares a federal act (law, ruling, etc.) to be unconstitutional and then obstructs that act’s enforcement within the state.1 This state veto of a federal act has its roots in the Virginia and Kentucky Resolutions of 1798 and 1799 and was put into practice by South Carolina during the Nullification Crisis of 1832–33.
What is happening today with marijuana is that a state refuses to enforce a federal law within its territory. This is better termed “neo-nullification,” as the practice lacks the declaration of unconstitutionality and the obstruction of federal enforcement of the law.
Neo-nullification has been enabled by the Supreme Court’s anti-commandeering rulings in New York v. United States (1992) and Printz v. United States (1997), where the Court held that the federal government cannot commandeer state officials (New York) or state legislatures (Printz) to enforce federal law. This leaves a loophole for states to ignore federal law with the hopes that the federal government will not enforce its laws within the states.
The Virginia and Kentucky Resolutions of 1798 and 1799
Contrast this with the Virginia and Kentucky Resolutions of 1798 and 1799, which were written by James Madison and Thomas Jefferson respectively. The Resolutions were drafted in response to the Alien and Sedition Acts of 1798 passed by the Federalist-majority Congress. The most controversial of these was the Sedition Act, which was aimed at quieting criticism of the Federalist Congress and President John Adams.
Both the Virginia and Kentucky Resolutions of 1798 put forth the “compact theory” of the Union — that the States by the Constitution’s compact created the federal government, delegating limited powers to it and reserving all others to the states. The Kentucky Resolutions of 1798 asserted that “the several States ... are not united on the principle of unlimited submission to their general government” but “by a compact ... delegated to that government certain definite powers.” Violations by the federal government of the Constitution’s limits were therefore “unauthoritative, void, and of no force.”
The Kentucky Resolves argued that the states, as parties to the Union, have the right to interpret the Constitution and judge the extent of the powers of the federal government — “the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.” The Kentucky Resolutions made the case that a monopoly on constitutional interpretation by the federal government results in the people of the states being governed by the “discretion” of their rulers rather than the Constitution. Thus the need for nullification, a state veto of an unconstitutional federal act.
The Resolutions were not well received by the other states, who either denounced them or ignored them. In response to this criticism, Kentucky issued its Resolutions of 1799, and Madison drafted the Virginia Report of 1800, stating that Virginia was not persuaded to amend its Resolutions. While the Virginia and Kentucky Resolutions were ineffective in bringing about the repeal of the Alien and Sedition Acts, Jefferson’s party came to power in 1800 by running on a platform in opposition to the Federalist agenda.
Interposition and Nullification in the Resolutions
There is some debate about the intention of the Resolutions, much of which arises from Madison’s statements in the 1830s that he never promoted nullification in the Virginia Resolutions of 1798. However, this may have been a political move by Madison, as it was no longer expedient for him to support nullification.
In regard to the language, neither the Virginia Resolutions nor the Kentucky Resolutions of 1798 used the term “nullification.” The Virginia Resolutions of 1798 instead spoke of “interposition” (which is essentially interchangeable with nullification and was preferred by John C. Calhoun). The Virginia Resolves stated that in the case that the federal government assumes powers “not granted by the said compact,” then “the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of evil.”
Jefferson had included the term “nullification” in his draft of the Kentucky Resolutions of 1798, but the legislature removed it. It was not until the following year when the word “nullification” was used in the Kentucky Resolutions of 1799, which stated that when the federal government commits infractions of the Constitution, then “nullification ... is the rightful remedy.”
At minimum the Resolutions were protesting the Alien and Sedition Acts and calling on other states to join them. However, the use of the terms “interposition” and “nullification,” along with the declaration that the Alien and Sedition Acts were not “valid” (Virginia) and “void, and of no force” (Kentucky), suggests that the Resolutions intended obstruction of the laws, possibly through a future state convention.
Jefferson’s Draft and the Carolina Doctrine
Regardless, Jefferson’s draft of the Kentucky Resolutions of 1798 was explicit in its goal of obstructing unconstitutional acts. By “nullification” Jefferson meant that the states should “concur in declaring these acts void, and of no force” but also “take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.”
Jefferson’s doctrine was carried out by South Carolina in the Nullification Crisis of 1832–1833. The federal government had instituted a tariff policy that particularly harmed the South, culminating in the 1828 “Tariff of Abominations” (slightly reduced in 1832). In response, John C. Calhoun anonymously drafted the South Carolina Exposition and Protest in 1828. The longer Exposition criticized the tariff and defended the option of nullification, while the shorter Protest declared the tariff unconstitutional and was adopted by the South Carolina legislature. Calhoun had been vice president under Andrew Jackson, but he resigned in 1832 and became a senator for South Carolina.
South Carolina formed a popular convention that nullified the tariffs of 1828 and 1832, which was to take effect on February 1, 1833. This was genuine nullification, as South Carolina not only declared the tariff unconstitutional but also obstructed the federal government’s collection of the tariff. South Carolina also used the proper means for nullification, a state convention, which was the same process used to ratify the Constitution.
President Jackson countered with his Proclamation of December 10, 1832, in which he denounced both nullification and secession as “incompatible” with the Union and called South Carolina to cease its nullification efforts. South Carolina refused, but then Congress offered a lower tariff, along with passing the Force Bill in 1833 (which authorized the federal government to use force against South Carolina for failure to comply with federal law). South Carolina accepted the lower tariff and rescinded its nullification, but for good show the convention also nullified the Force Bill.
South Carolina’s nullification efforts did not end the tariff completely, but they successfully forced the federal government to reduce its tariff. This shows that genuine nullification — and not just neo-nullification — can work. One is much more difficult to pull off than the other, but they are both strategies that states can implement in resisting the federal government’s abuse of power.
- 1“For a state to declare that it considers an act unconstitutional is not by itself nullification; nullification begins when the federal act is blocked in practice.” James H. Read & Neal Allen, “Living, Dead, and Undead: Nullification Past and Present,” Nullification and Secession in Modern Constitutional Thought (Sanford Levinson ed., 2016), p. 101.
