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The death of Antonin Scalia ought to be a wake-up call. Mitch McConnell, to his credit, has made it clear that Barack Obama will not be allowed to replace Justice Scalia. That means that the question whether we will retain even a hint of constitutional government lies in the hands of the next President.
Think about it. Do you want Hillary Clinton, Bernie Sanders, or Donald Trump to name Scalia’s replacement? Think about it, and think about it again and again. Given the ages of the sitting Justices of the Supreme Court, it has been obvious for a long time that the next President will be in a position to reshape the court. This sad event is a salutary reminder of the stakes.
I am not of the opinion that Scalia was without fault. He was, in fact, an old-fashioned New Deal Justice. He accepted what FDR did to the Constitution when he threw ought the limits on federal power implicit in the commerce clause. The only one to challenge the New Deal consensus in this or any regard was Clarence Thomas, who really is our most distinguished Justice; and I regret to have to say that Scalia rarely followed his lead.
But Scalia knew arrant nonsense when he saw it, and he was prepared to call a spade a spade. His opinions — especially, his dissents — are in consequence a joy to read. The man could write; and, my oh my, could he think.
I met the Justice once. I was in DC. I had arranged to have dinner with an old friend, who is a distinguished journalist. He was invited to the Christmas Party put on every year by Dick Cheney, and he suggested that I tag along. At the party, which was a large affair, Scalia happened along and greeted my friend, who introduced the two of us. It says much about Scalia that he spent the next half hour chatting with a total stranger of no importance. He was a gent, and he was good company. It does not surprise me that the man I met should have written with such verve and force. There was an ebullience to him that I immediately admired.
If Scalia is replaced by someone nominated by Obama, Clinton, Sanders, or Trump, you can kiss the last vestiges of the Constitution away. It is bad enough now. In the era of “protected categories,” it makes no sense to speak of “equality under the law.” Those excluded (white men, for example) are not protected. In the current atmosphere, moreover, federalism is a joke, and so is the idea of limited government. One more vote and we will no longer be in retreat. It will be a rout; John Roberts, who is a coward, will join the other side; and radical willfulness of the sort exemplified by the current President will replace even the semblance of lawfulness.
Think about the situation we are in. The Republicans won by a landslide in 2010 and again in 2014. But elections — to the legislature — no longer matter. The executive agencies, battered by the President, will issue regulations that have the force of legislation; and unless they are struck down by the courts and ultimately the Supreme Court, the whim of the President will be the law of the land.
If you want to know why a thug like Donald Trump has emerged as the Republican front-runner, you have to consider the fact that the Republicans can run up majorities larger than those they achieved in the past at any time since 1928, and it has no effect at all. They are too timid to exercise the power of the purse. Legislative supremacy has in effect been abandoned. What we have borders on a dictatorship of the executive; and, in that, the Republicans have acquiesced.
Over the next few months, as you consider whom to support, ask yourself this, and then pose the same question to yourself over and over again, “Which of these candidates is a genuine advocate of constitutional government? Which of these candidates has the force of will and the grit to rein in and roll back the administrative state?”
Forget immigration. Forget tax plans. Forget Obamacare. Forget ISIS. Forget Russia (but do not forget China). Our difficulties in these regards are symptoms of a larger disease. The only question that will matter ten years from now is whether we will be ruled under the Constitution by law or without a constitution by executive fiat, and I would submit that neither of the surviving Democratic candidates nor the leader in the Republican race can be trusted in this regard.
For more than a century now, we on the right have temporized. There comes a time when there is no more room for compromise. We must either surrender and accept our fate as subjects. Or we must fight!
I am confident that if the Justice I met at Vice President Cheney’s Christmas Party were sitting where you are now sitting, he would fight. Read his opinions, and you will see what I mean. Read his opinions, and then seek out a candidate intent on doing what Scalia would do if he had the chance.