The following post is excerpted from the script for Nullify: Season 1. Watch all the videos from this series at this link – and Become a member here to support the TAC.
Ignoring definitions of words like “nullify,” “nullification,” and “null” from dictionaries of both the 18th century and today, most lawyers claim the only definition of nullification is the legal one.
While a court might be able to nullify a law by striking it down, I can also nullify the positive effects of exercise by eating too much pie.
When it comes to state nullification of federal acts, legal experts seem to think only of courts, and never of pie. They believe that states are claiming, individually, the power to overturn a federal act in law, as if it were repealed, even when states aren’t trying to do such a thing.
In fact, this idea has never been more than a theory. It has never happened. Ever. And we should never expect it to happen either.
On the other hand, the other definition of nullification, that is, nullification in effect or in practice, has happened through state actions, is currently happening, and will likely continue happening, even though the legal experts would like you to call it something else.
In the 1850s, Northern states took various approaches – primarily withdrawing material support or resources – to the federal fugitive slave act. South Carolina, Mississippi, and Texas all considered these acts of nullification, even though they didn’t fit the lawyer definition of the word.
Today, nearly two dozen states and counting – have legalized marijuana for either limited medical or general recreational use. The Supreme Court didn’t favor them in a 2005 opinion. And all branches of the federal government still consider the plant illegal.
None of these state actions have overturned federal prohibition in law. And the federal government aggressively tries to stop them. But as more and more states and people do what they want without federal permission, Washington D.C. has had to back down, and they’ll continue to do so until they’ve totally lost.
This is nullification in effect.
In the end, if the states continue pushing back, and the feds back down, the lawyers can call it whatever they want, and we’ll call it what it is – nullification.
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