by Michael Maharrey

State nullification, as Thomas Jefferson put it, “The rightful remedy.” Simply defined, any action taken by a state that renders an unconstitutional act null and void.

Over the last several months, the mainstream media suddenly sat up and took notice, primarily due to state efforts to nullify the federal health care act.

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But long before the uproar over Obamacare, states were already exercising their sovereign right and duty to defy unconstitutional federal acts.  And while the mainstream media and political pundits may not recognize it as nullification per se, the movement to legalize medicinal marijuana across the nation serves as the most powerful and successful example of state nullification to date.


Currently, 15 states and Washington D.C. have laws on the books making the possession and use of cannabis for qualified medical conditions legal.

The effectiveness and dangers of using marijuana remain a matter of debate. But a 1999 report by the Institute of Medicine did find that cannabis helped some people deal with certain illnesses.

“The IOM report, Marijuana and Medicine: Assessing the Science Base, released in March 1999, found that marijuana’s active components are potentially effective in treating pain, nausea and vomiting, AIDS-related loss of appetite, and other symptoms and should be tested rigorously in clinical trials. The therapeutic effects of smoked marijuana are typically modest, and in most cases there are more effective medicines. But a subpopulation of patients do not respond well to other medications and have no effective alternative to smoking marijuana.”

But according to federal law, Americans cannot grow or possesses marijuana, even for medicinal use. Even if their doctor prescribes it. Even if the state says it’s OK.  And the Supreme Court agreed, ruling in Gonzales v. Raich that state-level medical marijuana laws were, in essence, illegal.

“…the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”

But that didn’t stop California. Or Colorado. Or even Michigan. These states, along with 12 others, stood their ground and passed laws allowing medicinal use of marijuana within their borders. The lawmakers and citizens of those states deemed it beneficial to allow the use of cannabis for medical purposes and to this day, continue the practice, in direct defiance of federal “law.”

“After the supremes told the country that such laws were a big no-no, how many were repealed? Zero,” Tenth Amendment Center executive Michael Boldin said.

In fact, the movement continues to grow. Since the beginning of the year, 19 states have introduced legislation to legalize cannabis for medicinal use, including some traditionally socially conservative states such as Tennessee, Florida and West Virginia. And a few states, including Texas, Illinois and Maryland have pending legislation that would take it a step further, completely decriminalizing marijuana possession in small amounts.

What’s the fed to do?

Apparently, nothing.

And that’s the beauty of nullification. When enough states get together and defy unconstitutional federal overreach the fed ultimately has little choice but to back down. This is exactly what James Madison envisioned – a state check on federal power.

“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 cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

The movement to legalize marijuana for medicinal use at the state level represents the republican system at its best. The citizens of each state decide for themselves, through their elected representatives, if they want medicinal marijuana, and if so, how to best implement their wishes based on the circumstances, beliefs, values and political system in that particular state.

Instead of a one-size-fits all dictate passed down from Washington D.C., each state experiments and finds its own solutions. It’s difficult to understand how anybody could oppose this concept.

The media may continue to decry nullification as a dusty relic used to subjugate slaves, but the growing resistance to federal marijuana laws proves nullification a viable and effective option.

Or, as Jefferson said, “The rightful remedy.”

Mike Maharrey