JOHN C. CALHOUN IS BACK with a vengeance, warming the hearts of Old South romantics while chilling the blood of modern liberals. He conjures up images both appealing and appalling: old-fashioned patriotism, partisan demagoguery, genuine fears, love of liberty. The modern Tea Party movement owes much of its inspiration to the Ron Paul campaign, the only national effort in recent years to mention the Tenth Amendment. Yet inevitably talk of nullification evokes memories of Calhoun and the Lost Cause--even though the roots of the idea run much deeper.
The re-emergence of nullification--the repudiation or ignoring of a federal law by a state government--poses an interesting challenge to the power of the federal government and its monopoly on constitutional interpretation.
In recent decades, the first organized attempt came from the Left and libertarian Right's advocacy of medical marijuana. The movement achieved success in California in 1996 with passage of Proposition 215--a direct affront to federal anti-drug laws--and has since spread to 13 other states. But in 2005, the U.S. Supreme Court ruled in Gonzales v. Raich that the Constitution's commerce clause gives the federal government the right to criminalize marijuana. This trumping of states' rights was supported by George W. Bush, Dick Cheney, John Ashcroft, and Alberto Gonzales as plaintiffs, and was advanced by Justice Antonin Scalia. In addition to being joined by three of the court's Republican justices, Scalia allied with two liberals in declaring that Angel Raich, a woman with a brain tumor, substantially affected interstate commerce when she grew a plant in her backyard and used it to alleviate her own suffering.
To his credit, Clarence Thomas dissented, writing, "If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states. This makes a mockery of Madison's assurance to the people of New York that the 'powers delegated' to the Federal Government are 'few and defined,' while those of the States are 'numerous and indefinite.'" He was referencing Federalist 45. Thomas further invoked the principle of original intent by noting, "In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana."
Chief Justice William Rehnquist also dissented. Similarly, the attorneys general of Alabama, Mississippi, and Louisiana filed an amicus curiae brief supporting the defendant on states' rights grounds. The Deep South is not a hotbed of NORML members, but it does have a longstanding suspicion of federal usurpation of state prerogatives.
Although the Controlled Substances Act was deemed superior to the Tenth Amendment, the Obama administration has backed away from strict enforcement in clear cases of medical use in legalized states. De facto nullification has won a partial victory. But it is likely that the Justice Department's stance has more to do with politics than principle. Barack Obama is a former professor of constitutional law, but he is not known as a friend of states' rights.
Nullification has been gaining popularity in states North, South, and West. One week before Obama assumed office, Joel Boniek introduced the Montana Firearms Freedom Act into the state legislature. The freshman Republican legislator previously affiliated with the Constitution Party was a veteran of Paul's 2008 campaign. His legislation challenged ATF authority, declaring federal firearms laws within the state to be null and void on the basis of the Second, Ninth, and Tenth Amendments. It was written and advanced by two other Paul admirers between 2004 and 2007, while Bush was president, but was twice defeated by the state senate. It eventually passed both houses and was signed into law by Gov. Brian Schweitzer, a Democrat. Firearms Freedom Acts have since been adopted by Tennessee, Utah, Wyoming, Arizona, South Dakota, and Idaho, and are under consideration in 20 other states. …