Nullification Is Lawlessness? Not According to the Founders

Anyone who has the audacity to bring up nullification in a debate with friends and foes alike has probably heard this before.

“Nullification is lawlessness!”

That is not what the founding generation thought. Not even close.
In fact, their entire opposition to unconstitutional acts by the Parliament (and even colonial governments) rested on the very idea of nullification, or more accurately the British concept of “consent.”

When the Virginia colonial legislature passed dubious legislation, the county courts refused to enforce the law.

By the same token, when the Parliament passed unconstitutional legislation, courts in several colonies refused to enforce the law.

Edmund Morgan dedicated an entire chapter to this method of nullification in his The Stamp Act Crisis. The chapter was titled…wait for it…Nullification.

And this book was published in the 1950s. It seems some people didn’t think nullification was a dirty word.

But the whole idea of nullification comes down to consent. There are hundreds of laws on the books in cities and states that are too stupid to enforce. People don’t abide by the law and cops don’t ticket you or arrest you for breaking them. That, my friends, is nullification, the lack of consent to a worthless law.

When Jefferson wrote that all laws are based on the consent of the governed, this is what he was talking about. In order for a law to be a law, it has to have the consent of the people.

Now we could spend hours discussing how to measure consent, but the fact remains that not only is nullification a good idea for large scale political bodies like states, it can also work on a personal level.

Think locally, act locally.

I talk about this in episode 92 of the Brion McClanahan Show.

p.s. Don’t forget to pre-order How Alexander Hamilton Screwed Up America. Go to BlameHamilton.com and follow the simple rules for your goodies and contest. And while you’re at it, make #blamehamilton your favorite phrase on Twitter. Everyone should be doing it.