Would John Calhoun approve of states legalizing pot?

John Calhoun

John C. Calhoun is a slave-owning dead white guy whose big idea is suddenly all the rage again — and in no small part due to marijuana.

These days Calhoun isn’t as well-known as slave-owning dead white guys like George Washington, Thomas Jefferson and Andrew Jackson. Still, chances are you would have heard of him if you were paying attention in white-privilege class (or, as we used to call it, American history).

Between 1817 and his death in 1850, Calhoun served as secretary of war, vice president for two different presidents, secretary of state and U.S. senator from South Carolina.

But what he’s remembered for is his political thought, which laid the ideological foundation for secession and the Confederacy.

Calhoun’s biggest idea, and the one that is catching on again today, is nullification.

Nullification is the concept that state governments have the right to invalidate federal laws that they consider unconstitutional. Calhoun maintained that the federal government’s powers were restricted to those specifically granted to it by the Constitution, also called “the enumerated powers,” and that in the exercise of all other political power, the states were superior to the federal government. A state could nullify within its borders any federal law that went beyond the enumerated powers, he said, and secede if the feds objected.

Today’s flirtation with nullification has taken two forms — the sanctuary city movement and state-level legalization of marijuana.

There are currently about 300 so-called sanctuary cities, counties and states in the U.S. The governments in each has voted either to refrain from or ban local enforcement of federal immigration law within their boundaries — or more plainly to nullify it.

As for marijuana, eight states and the District of Columbia have voted to legalize and regulate it, and 28 states have voted to legalize it for medical purposes, notwithstanding the fact that possession, use, production and sale of pot are all federal felonies.

Which raises an obvious question: Is there any difference between nullification and rebellion? In 1832, President Andrew Jackson didn’t think so.

On Nov. 24, 1832, the legislature of Calhoun’s home state of South Carolina voted to formally nullify a high protective tariff that Congress had passed in 1828. Southerners considered the tariff, which they dubbed the “Tariff of Abominations,” particularly damaging to their economic and social interests.

Calhoun spent four years arguing that South Carolina had the right to nullify the tariff — and to secede from the union if the feds didn’t accept the tariff’s nullification.

President Jackson wasn’t amused. He promptly sent a naval squadron into Charleston Harbor and threatened to hang Calhoun or any man who worked to support nullification or secession. 

(The South Carolina legislature blinked, decided to quit being the resistance and embraced The Art of the Deal. The Deal, in this case, being the Compromise Tariff of 1833, which was put together by one of America’s all-time great deal-makers, Henry Clay.)

OK, there are major differences between 1832-style nullification and the 2017 versions.

For one thing, neither the sanctuary cities or the states with legalized pot are threatening to use force to prevent the enforcement of federal law within their jurisdictions, as South Carolina was. Sanctuary cities for the most part are practicing non-cooperation with federal law, which is a less brazen form of nullification than affirmatively preventing its enforcement.

In the case of marijuana, the states that have legalized did so by repealing state laws and saying nothing about the enforcement of federal ones. They said to the feds, in so many words, “you do your own thing and we’ll do ours.”

And the federal government has enforced federal anti-pot laws in states that have legalized, often with the help of local authorities when the feds asked for it. But the federal government has also been circumspect about enforcing federal pot law in states that have legalized; the guidelines in the Cole Memorandum have averted a head-on clash with the states. Marijuana legalization may be an example of latter-day nullification, but it’s nullification lite.

It’s still nullification, though, and that can be a ticking time bomb. That’s why there’s real urgency for Congress passing legislation that defers to the states on pot. South Carolina may have backed down in 1833, but things didn’t end as happily in 1861. You can only kick a can of dynamite down the road for so long before it blows.

And Trump has a portrait of Jackson hanging in the Oval Office. Just sayin’. 

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