Marijuana and nullification

Old City Hall, 2134 Martin Luther King Jr Way, Berkeley, CA
Sanfranman 59 via Wikimedia Commons

couple weeks ago the Berkeley, California city council unanimously voted to declare Berkeley a sanctuary city for licensed marijuana businesses and users. Now other cities and some states that have legalized pot are considering doing the same thing.

Sanctuary cities up until now have been cities that have declared they will not cooperate with the federal government in enforcing federal immigration laws. What Berkeley did was extend the concept to federal anti-marijuana laws.

According to an Associated Press story, bills are pending in the Alaska, California and Massachusetts legislatures to declare them marijuana sanctuary states. (California is already a sanctuary state for illegal immigration.) Whether or not they will pass remains to be seen, but the fact that they have been introduced at all is radical. Really radical.

That’s because the sanctuary city concept, whether applied to federal immigration or marijuana laws, is both an assertion of states’ rights and arguably a form of nullification.

And the federal government thinks “nullification” is a very bad word. Almost as bad as “treason.”

It’s been that way since 1832.

That was the year that the State of South Carolina amended its constitution to declare a federal tariff, affectionately known as the “tariff of abominations” in the South, as null and void in the state.

The tariff, which had been adopted in 1828, imposed duties as high as 45 percent on some imports and duties averaging 38 percent on most others. It was intended to protect American manufacturers, most of whom were in the North, from dumping by foreign producers, but it screwed the southern states, which had little indigenous manufacturing and relied heavily on imports.

(The 1828 tariff also imposed a stunningly high duty on hemp, which was intended to protect Kentucky hemp producers. The tariff on “unmanufactured” imported hemp was $60 a ton, which (depending on which inflation calculator you use) works out to $1,360 or $2,725 in 2017 dollars.)

The states of the Deep South — and South Carolina in particular — were beside themselves, and in November 1832, South Carolina “nullified” the tariff. It also threatened to secede if the federal government didn’t accept the nullification, and started raising military forces — 1,000 mounted minutemen and 24,000 militiamen — in case the feds decided to make something of it.

The president at the time was Andrew Jackson. He decided to make something of it.

He started mobilizing troops and ordered the navy to prepare to sail into Charleston Harbor and hang the nullifiers.

South Carolina caved. The Civil War was delayed for 28 years.

So are cities and states engaging in latter-day nullification when they declare themselves sanctuaries for illegal aliens and marijuana businesses and users?

No, but they’re pushing the envelope.

The big difference between what South Carolina did in 1832 and what Berkeley has done in 2018 is that South Carolina unilaterally attempted to void a federal law it didn’t like. Berkeley isn’t trying to nullify federal laws; it’s just refusing to help the feds enforce them.

The ordinances declaring Berkeley a sanctuary city also bar city staffers and cops from cooperating with the feds.

That’s the part that’s pushing the envelope.

Since the Civil War, most states have added a clause to their state constitutions acknowledging that the U.S. Constitution and federal law trumps state law. Moreover, everyone in the criminal justice system swears an oath to support the U.S. Constitution and the laws of the United States as well as their state constitutions and laws.

Strictly speaking, a cop could arrest you for lighting up in Boulder, because it’s a federal crime and he has sworn to uphold federal law.

If he did, you would be tried and sentenced in a federal court and would be sent to a federal prison. The reason it isn’t done is because the federal criminal justice system doesn’t have the resources, not because it doesn’t have the authority.

That and the fact that federal authorities don’t need a weatherman to tell them what way the wind is blowing on marijuana legalization. They have the Gallup organization.