Glenn Harlan Reynolds

Far fewer than half the number needed by March 1 have signed up for Obamacare.

If it fails%2C it will be because millions of Americans%27 passive resistance brought it to its knees.

Despite federal law that bans marijuana%2C Colorado has de-facto nullified it.

In his excellent book, Two Cheers For Anarchism, Professor James Scott writes:

One need not have an actual conspiracy to achieve the practical effects of a conspiracy. More regimes have been brought, piecemeal, to their knees by what was once called 'Irish Democracy,' the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people, than by revolutionary vanguards or rioting mobs.

That seems to be happening right now, in two very different areas. In one area, we have the refusal of people to sign up for Obamacare in anything like the numbers that were predicted, or needed to make it work. Writing in the Washington Post back in November, Jennifer Rubin observed:

It is a coin flip, at best, for the president as to whether his signature achievement, his only achievement, will fail. It will be repealed in essence by a popular referendum: The mass refusal of people to go along with Obama's top-down, compulsory system that was set to transform a sixth of the economy. That possibility should traumatize and probably is traumatizing the White House. ... The political implications of this are almost too enormous to calculate.

Now, as February draws near, things don't look much better. Far fewer than half the number needed by March 31 have signed up. And, as it turns out, most of the people signing up for Obamacare aren't the uninsured for whom it was supposedly enacted, but people who were previously insured (many of whom lost their previous insurance because of Obamacare's new requirements). "At most," writes Bloomberg's Megan McArdle, "they've signed up 15% of the uninsured that they were expecting to enroll. ... Where are the uninsured? Did hardly any of them want coverage beginning Jan. 1?" It looks that way.

In fact, there seem to be more uninsured than there were before Obama took office, leaving Jonah Goldberg to ask, "So what was the point of Obamacare again?"

If the program fails, it won't be because Republicans stopped it, despite all the House votes and defunding efforts. It will be because millions of Americans' passive resistance brought it to its knees. Irish Democracy, indeed.

Meanwhile, on the marijuana front, the people of states like Colorado are engaging in an odd, 21st century variety of nullification. Unlike the 19th century John Calhoun version, state laws legalizing marijuana don't purport to neutralize the still-extant federal laws banning cannabis. But the state, and millions of Coloradans, are simply ignoring the federal law and, in essence, daring the feds to do something about it.

State laws, of course, can't neutralize federal law, as the Constitution's Supremacy Clause makes clear. But, bloated as it is, the federal law enforcement apparatus isn't up to the task of prosecuting all the marijuana users in Colorado. And if it tried, it would have to bring them to trial before juries in Colorado, who would probably acquit most of them. There would also be massive political backlash, amplified in the coming 2014 and 2016 elections because Colorado is a swing state. And in response to Colorado's example, other states look likely to follow suit, making the feds' problem much bigger.

So, despite all the federal laws on the books, Colorado has de facto nullified them, and started a process that may very well snowball, all without directly attacking the federal laws, or the federal government, at all. Meanwhile, millions of Americans may be in the process of effectively killing Obamacare simply by staying home.

As we struggle, mostly in vain, to rein in the metastasizing power of a federal government that has grown out of control, perhaps Irish Democracy offers a solution. Sometimes it seems like that's the only kind of democracy that's likely to make a difference.

Glenn Harlan Reynolds is professor of law at the University of Tennessee and the author ofThe New School: How the Information Age Will Save American Education from Itself.He blogs atInstaPundit.com.

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