Inigo: I am waiting for you, Vizzini. You told me to go back to the beginning, so I have. This is where I am, and this is where I will stay. I will not be moved.
Brute: Ho there!
Inigo: I do not budge. Keep your “Ho there!”
Brute: The Prince gave orders.
Inigo: So did Vizzini. When the job went wrong you went back to the beginning. Well, this is where we got the job, so it’s the beginning. And I am staying ‘till Vizzini comes.
—Mandy Patinkin as Inigo Montoya, and Paul Badger as the Brute in The Princess Bride
One of the great lessons of golf is that you must learn to play the ball where it lies, however bad a position that may be, and however unfair the circumstances under which it came to be there. Denial and panic are counter-productive. Sometimes you have to accept bogey, chip back into the fairway, and try to make it up on the next hole.
Obamacare has passed Congress and been upheld by the Supreme Court. Rightly or wrongly, that’s where the ball now lies. The question we must focus on now is: What do we do about it?
A number of possibilities come to mind.
Two are already more or less in progress. The obvious option of repeal by the Congress is front burner, but until 2013—and then only if the GOP gains at a minimum a decisive majority in the Senate, which is unlikely—it is nothing more than moot political theater, because at present a repeal bill can’t see the light of day in Harry Reid’s Senate, and would inevitably be vetoed by the White House. Slightly less obvious is simple defiance at the State level, where GOP governors in several States are telling the federal government “no,” and simply refusing to implement the law. John Roberts has made his ruling; now let him enforce it. This won’t stop Obamacare, as the feds will take over, but it will slow it down. Neither option has much promise of actually correcting the problem any time soon.
You could try to pack the Court if Romney wins the White House. Nothing in the Constitution fixes the size of the Court at nine justices. Congress—presumably and historically, but the Constitution is actually silent on this point—has the power to change the number of Supreme Court justices. But this would still leave Obamacare on the books.
I’ve heard some talk about a process called “nullification.” The idea is that because the Constitution is a compact between the States as sovereign entities—and thus the federal government is a creation of the States, they retain an inherent power to un-do acts of the federal government. While I generally agree in theory with the concept, the problem is it isn’t expressly found in the Constitution, and there is a wealth of Supreme Court precedent (incorrectly, in my judgment) rejecting its underlying premise. Given what we’ve now seen from the Roberts Court in its current composition, I have no confidence you would ultimately get anywhere with an attempt at nullification. Further, you can be sure that the Obama administration would ignore nullification by executive order anyway.
The more basic problem with any of these options is they don’t address the real disease, which is that our Constitution itself has become perverted in its application beyond recognition. Several years ago my orthopedic surgeon told me, when we had run out of lesser treatment options for my knee, that “mechanical problems require mechanical solutions.” While it shouldn’t have been necessary, all three branches of the Beast have so broken the original language of the Constitution that it’s going to require fixes to that language itself to heal the damage.
To that end, let me offer some suggestions. We can call it the “Bill of Clarification.”
Article XXVIII (eliminating the “general welfare clause,” which was a statement of purpose and never intended to confer power)
The Preamble to the Constitution of the United States is amended to read as follows: “We the People of the United States do ordain and establish this Constitution for the United States of America.” All other language in the Preamble is deleted.
Article XXIX (clarifying that when we said enumerated powers, we meant it)
Section 1. The Constitution of the United States is to be interpreted and applied according to the plain meaning of the language actually written.
Section 2. Congress has no powers, rights, or authority beyond those expressly granted in the Constitution of the United States, and any powers, rights, and authority not expressly granted to the Congress therein are expressly denied to Congress.
Section 3. The President has no powers, rights, or authority beyond those expressly granted in the Constitution of the United States, and any powers, rights, and authority not expressly granted to the President therein are expressly denied to the President.
Article XXX (limiting what Congress can do)
Section 1. Every Bill passed by the Congress must include a citation to the provision or provisions of this Constitution of the United States conferring upon the Congress the authority to enact it. This citation must be specific and limited to the actual authorizing provision or provisions; a blanket quotation of this Constitution as a whole or of an Article substantially in its entirety is not sufficient, and will render the Bill void. No Court, Federal or State, may uphold the constitutionality of any Bill on any basis other than that articulated by the Congress in the Bill.
Section 2. Congress may not appropriate or authorize the spending of money for any calendar year in excess of actual revenues for the same period, nor levy taxes totaling in the aggregate in any calendar year more than 25% of Gross Domestic Product for that year. Not more than once every fourteen years Congress may, by a vote two-thirds of each House, suspend the application of this Section 2 for a period not to exceed four years.
Section 3. The power of the Congress to regulate commerce among the several States is limited to preventing individual State commercial policies creating distinctions, preferences, or exclusions affecting the flow of goods or services between the States; this power does not extend to private transactions within a single State, nor may the Congress compel any person to engage in any commercial transaction. The power of the Congress to lay and collect Taxes is limited to excise taxes on transactions, direct capitations apportioned among the States in proportion to the Census, and taxes on incomes; Congress is not authorized to lay or collect any other Tax.
Section 4. Congress may not pass any Bill containing provisions not reasonably related to the purpose of the Bill, nor any Bill to any part of which the members of Congress are exempt by virtue of their office.
Section 5. The veto power of the President may extend to all or any part of a Bill.
Article XXXI (term limits, and restoring the Senate to the States)
Section 1. No person may be elected to the House of Representatives more than four times, and no person who has held the office of Representative for more than six months of a term to which another person was elected Representative may be elected to the House of Representatives more than three times. No person may be elected to the Senate more than twice, and no person who has held the office of Senator for more than three years of a term to which some other person was elected Senator may be elected to the Senate more than once.
Section 2. The seventeenth article of amendment to the Constitution of the United States is hereby repealed.
Section 3. The Supreme Court of the United States consists of nine Justices, divided into three classes of three. The term of the first Class, comprised of the three Justices with the longest term of service on the Court at the time this Article is adopted, expires at the end of the third year after the adoption of this Article. The term of the second Class, comprised of the three Justices with the second-longest term of service, expires at the end of the sixth year after the adoption of this Article. The term of the third Class, comprised of the three Justices with the shortest term of service, expires at the end of the ninth year after the adoption of this Article. No person may serve as a Justice on the Supreme Court for more than nine years, except that a person appointed to replace a Justice prior to the expiration of a term may serve out the existing term and then be re-appointed and confirmed as provided in Article III of this Constitution of the United States for a term not to exceed nine years.
Section 4. No person may serve as a Judge on any inferior Courts established by Congress for more than a combined twelve years.
Article V provides two mechanisms to make this happen. One is by two-thirds vote of both Houses of Congress. I have no illusions that that’s going to happen in our lifetime. The other is by convention called by the legislatures of two thirds of the states. This Constitutional Convention route is the only means by which we can realistically hope to mend the damage done to the text of our Constitution. Even then we’re only as healed as the Beast’s willingness to stay within the letter as written. If Amendment fails to constrain the Beast, there aren’t but a couple of alternatives left.
Food for thought.