by Sue Long - VNS Columnist

Regardless of who wins the up-coming presidential election, the hope of getting another Supreme Court Justice like Antonin Scalia is slim. In order for that to happen, these  things must all happen, and it is unlikely that all four will come to pass.  

  • The Senate will have to exhibit fortitude and delay the confirmation of a successor. 
  • A  Republican will have to win the presidency. 
  • The GOP will have to retain the Senate in November, when 24 GOP seats but only 10 Democrat ones are up for grabs. 
  • And, the Republican president in office will have to nominate someone not a wolf in constitutionalist’s clothing. [Click Read More below for rest of the story]

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.