Does nullification work?
Some argue that it does not. Sometimes they call it ineffective political posturing. Sometimes they claim we simply can’t overcome a powerful government through nullification strategies. Sometimes they don’t even have a reason; they just swear it won’t work.
But here’s the thing…it has!
First we need to understand the goal of nullification. Ultimately, we simply want to render a law unenforceable and irrelevant. It doesn’t matter if the law remains on the books. If the authorities can’t or simply won’t enforce it any more, we can claim success.
But does it really work?
We can see its effectiveness as federal marijuana laws gradually become nothing more than paper statutes. We can point to the federal government’s failure to fully implement the 2005 Real ID act as evidence of nullification success. We can point back to the effectiveness of personal liberty laws in nullifying the Fugitive Slave Act of 1850. But even with these examples, naysayers will point the sporadic federal raids on medical marijuana dispensaries, partial compliance with Real ID, and the fact that some blacks were still sent south back into slavery in the 1850s to argue nullification doesn’t really work. After all, we can’t boast of complete nullification of these federal acts.
But plenty of examples of completely nullified laws actually do exist, especially at the state level.
Consider this current law on the books in South Carolina.
SECTION 63-19-2430. Playing pinball machines.
It is unlawful for a minor under the age of eighteen to play a pinball machine.
Can you imagine the scene? A cop walks up to a 17-year-old pumping quarters into a pinball machine.
“Young man, I need to see some identification; you appear to be an underage pinball player!”
Then, the takedown!
Obviously, this is absurd. Police in South Carolina don’t spend time doing ID checks at the pinball machine in the local Pizza Hut. You won’t find South Carolina court dockets overflowing with youthful pinball offenders. This law remains on the books, but has absolutely no effect.
It is nullified.
It didn’t even take any specific action to nullify this ridiculous statute. The fact that it’s ridiculous was enough to render it unenforceable. No cop would risk the embarrassment. No judge would waste her time. No jury would ever convict.
Hundreds of nullified laws remain on the books across the United States. You can find a whole list of them HERE.
Granted, these count as small examples. But it illustrates a bigger point. Just because some legislative body passes an act does not guarantee its enforcement. It must have the will of the people and the cooperation of officials at every level to actually remain in effect. Nullification pulls that support out from underneath an unconstitutional federal act. The process of nullification educates the people and erodes popular support, and state and local refusal to cooperate, and legislative devices added by the state legislature, create impediments to enforcement.
James Madison gave us the blueprint. And the blueprint works. With diligence and persistence, action at the state and local level can render an unconstitutional federal act as irrelevant as South Carolina’s pinball law.
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