California Considers Historic "Weed Sanctuary" Status

04/19/2017 09:49 pm ET Updated Apr 20, 2017

A bill has been introduced in California's state legislature which would prevent the state's law enforcement officers (and any other state resources) from being used to: "investigate, detain, detect, report, or arrest a person for marijuana activity that is authorized by law in the State of California." The bill is based on a similar bill which would declare California a "sanctuary state" for undocumented immigrants. Either one would be the first of its kind on a statewide level. The marijuana sanctuary bill (AB 1578) would send a clear signal to both Donald Trump and Attorney General Jeff Sessions that the state is not going to take part in any new federal War On Weed. It just passed the Assembly Public Safety Committee by a vote of 5 to 2.

If enacted, the bill would be a new battle in the ongoing centuries-long American power struggle between states and the federal government. In modern times, such battles are being waged over divisive issues such as immigration law (the "sanctuary cities" idea), abortion, the Second Amendment, religious freedom (versus civil rights for all), to name but a few.

What I find interesting is that the newest arguments are being made from the left. Because up until recently, the "states' rights" argument was largely made by right-wingers, mostly on the subject of civil rights and racial integration. Southern states fought tooth and nail against federal laws which integrated schools and guaranteed full civil rights for African-Americans, and they leaned heavily on the "states' rights" argument in doing so. They'd point to the Tenth Amendment to the Constitution (the last one in the Bill of Rights), which reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Most Americans are unaware that this amendment even exists, at least these days. But splitting the hairs of what the federal government can and cannot do and how states can react to federal laws they don't like is not very clearly defined in the Constitution's text at all.

I said this was a centuries-long battle because the arguments started almost before the ink was dry on the Constitution. The first of these fights happened under President John Adams, America's second president. Politicians (and judges) didn't have to argue "the original intent" of the framers of the Constitution back then -- because they were still alive. And even they couldn't agree what the document actually meant in this regard.

As schoolchildren, we were taught a simplistic rule: federal law always trumps state law. Period. We were also taught the prime example of what could go wrong if this rule wasn't adhered to: the Civil War. But before there was talk of "secession," the root of the argument revolved around the concept of "nullification." Could a state, if it strongly disagreed with a federal law, "nullify" the law by voting in the state government to ignore the law altogether, or even block its implementation within that state? This is pretty close to what California is proposing to do on both marijuana law and immigration law.

The subject of nullification first came up in the aftermath of the Alien and Sedition Acts, which were passed so John Adams and his Federalists could jail or even expel aliens they didn't like (which included a whole bunch of newspaper editors who were their political opponents, but hadn't been born in this country). It was a purely political act of vengeance, and the Anti-Federalists protested loudly. Two state governments even passed resolutions which encouraged all the other states to join in protest and nullify the new laws (see the Kentucky and Virginia Resolutions of 1798 and 1799 for more details). Both walked right up to the edge of nullification, but didn't fully take the plunge. But when originally drafted, Kentucky proposed setting out the argument for doing so. In a clause that didn't make it to the final draft, the author proposed:

...where [federal] powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every state has a natural right in cases not within the compact (casus non foederis) to nullify of their own authority all assumptions of power by others within their limits: that, without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them....

In other words, they'd be fighting tyranny. The tyranny of the federal government over the state's. This clause didn't make it into the final draft the Kentucky legislature passed, but it is noteworthy for who penned it -- none other than Thomas Jefferson. The Virginia Resolution was drafted by James Madison, known as the "Father of the Constitution." At the time, the drafts were anonymous, because if the authors had been known, they might have faced charges of treason (or at the very least, sedition charges under the new acts). So two men who were intimately involved in setting up America's constitutional government were arguing that nullification was a viable remedy for states to take when they disagreed strongly enough with federal laws. How's that for "original intent"?

The concept of nullification didn't make it very far in the 1790s, but the argument would reappear roughly every 10 or 15 years or so, right up to the start of the Civil War itself. Even the Civil War didn't settle the issue, which lived on through the infamous Jim Crow period. School integration and the civil rights battles of the 1950s and 1960s brought it back into focus in the mid-20th century. The longstanding legislative efforts (at the state level) to chip away at Roe v. Wade are also essentially nullification arguments. Most recently, we've just emerged from a fierce period of state-versus-federal battles over gay rights and marriage equality.

But the Tenth Amendment position -- arguing for the right of the states to nullify federal laws they don't like -- is not actually an ideological one. The history might suggest it is, but the historical positions are now shifting on the political scale. Because now it is liberals -- out of power in Washington, clinging to their hold on deep-blue states -- who are making what is essentially the same argument. Federal law is quite clear on immigration. It is also quite clear on the illegality of marijuana for any and all purposes. "Sanctuary" is a modern way of saying "nullification," to put it slightly differently.

Passing sanctuary laws has both tangible and symbolic value. The tangible value is that the cops simply aren't allowed to do certain things to help the feds. Thus they're not actually breaking federal laws on the books, they're just refusing to enforce them -- some legalistic wiggle room, if you will. But all the state laws allowing marijuana use (including both recreational legalization and medicinal use) -- all of them -- are nothing short of an effort at nullification. States have said "we don't agree marijuana should be illegal" and they've openly defied the federal government by allowing use of a substance that is still highly illegal under federal law.

But in the War On Weed, weed is never going to fight back to the level of starting a new Civil War. States aren't going to attempt secession over marijuana legalization. Again, these laws are both symbolic and tangible. They're tangible to patients with medical marijuana prescriptions in roughly 6 out of 10 states, who can go to a dispensary and buy what they need without resorting to black-market drug deals on a street corner. But the symbolism is what will eventually change things for the better. Prohibition of alcohol ended in a similar fashion -- individual states got so fed up with things that they started taking matters into their own hands. When enough states had done so, the national politicians finally were forced to act to repeal Prohibition constitutionally.

That's precisely where the endgame of the War On Weed is right now. The number of states that don't even allow medicinal marijuana use is shrinking. Sooner or later the national politicians will realize that changing federal law is long overdue and is now politically safe to do. California is merely attempting to speed up that timeline, in reaction to a man being named to lead the Justice Department who wants to start waging the War On Weed II ("Bigger! Stronger! Even more pointless!").

California has almost 40 million people living in it. When recreational weed stores are fully legal (coming next year), thousands of them will spring up (like weeds, of course), throughout the state. They already exist in the states which legalized recreational weed earlier (like Colorado and Washington), although not in the numbers we'll soon see in California. If all those states passed similar "state sanctuary" laws which forbade their cops from helping enforce federal law, then the F.B.I. and the D.E.A. and all the rest of the federal police force is going to need a whole lot more cops if they even have a prayer of attempting to enforce this federal law, no matter what Jeff Sessions personally thinks.

The symbolism is clear: "We don't agree with this law, and we're not going to lift a finger to help you enforce it." But the tangible effect is cumulative. As more and more states see the reasonability of the idea of treating marijuana like alcohol (and reaping billions in new tax dollars, to boot), the federal forces are going to have more and more places to police on their own. So even if Sessions does ramp up the War On Weed, he is simply not going to have the number of troops necessary to effectively fight this war.

Sooner or later, the federal prohibition on weed will end. The trend is, at this point, almost irreversible. Sooner or later voters are going to treat this issue as a litmus test for those they elect to the national government. That's when congressmen will hastily reverse themselves in fear of losing their jobs. We're not quite at that point yet (at least, not in enough congressional districts or states). But we might be at the point where the largest state to legalize recreational marijuana yet stands up and says to the feds: "We are not going to help you enforce this outdated law."

Nullification does not stand up in federal court. If you're arrested and a federal case is brought against you, it does not matter what state law says. You can still be given a long prison sentence for taking part in an activity that is fully legal under your state's laws. Legalization (medical or recreational) never trumps federal law. But these attempts at nullification do send a strong political signal. Passing a weed sanctuary state law would merely amplify this message. Constitutionally, this is all fuzzy territory -- and has been ever since the 1790s. But if enough states join in such efforts, eventually Congress will react (when they start to fear for their own jobs). Prohibition ended, after all. The prohibition on marijuana use will too, and I'm betting that efforts like the proposed new law in California will a big part of the reason why, in the end.

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