But, the solution may well have been given to us by Scalia himself while commenting in his dissenting opinion in the 2015 Obergefell v. Hodges (marriage) ruling. To wit: With “each decision ... unabashedly based not on law” the Court moves “one step closer to being reminded of [its] impotence.”
What does he mean by this?
As stated by Selwyn Duke, “Obviously, the Court has neither army nor police to enforce its judgments; it is government’s executive branch — headed by the president on the federal level and governors in the states — with the constitutional warrant to enforce law. And whatever executive branches don’t enforce doesn’t happen, period, no matter how much black-robed lawyers stamp their feet.”
The Constitution lists those things that the federal government is authorized to do. Their enumerated powers are specifically listed, and it was the intention that those specifically listed items were all that the federal government could do.
- Mainly, the enumerated list of what Congress is authorized to do consists of:
- Pay debts
- Sign treaties
- Borrow money
- Regulate commerce with foreign nations by collecting tariffs and between the states
by allowing it without heavy tariff
- Establish rules of naturalization and bankruptcies
- Punish counterfeiters
- Establish post office and post roads
- Establish patents
- Establish courts below the Supreme Court
- Declare war
- Establish a military and provide for our defense
But just to make it clear, the first nine amendments state specifically things that the federal government cannot do, and the tenth states basically : and if we didn’t mention something you can’t do that either.
So the Tenth Amendment is not something new. Thomas Jefferson had this to say about it:
“Whensoever the General (Federal) Government assumes undelegated powers, its acts are unauthoritative, void, and of no force” and "Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy."
State nullification allows a state to disregard an unconstitutional federal law, regardless of a Supreme Court ruling.
It has not often been employed until more recently. But, as the federal government exceeds its authority more often and more brazenly, nullification is coming into its own.
We have the constitutional means, we just need the will to use it.
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