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The primary difficulty is in knowing where to start. A consistent run of luck continues to have me in the driver’s seat of an 18-wheeler when news breaks that our philosopher-kings on the Supreme Court have hurled yet another thunder bolt toward the benighted masses for the purpose of jolting us from our fixed creeds and established truths, directing us to trade in the accumulated wisdom of human experience for the latest epiphany of a gaggle of lawyers.
I was somewhere between Memphis and Little Rock, navigating potholes that Evel Knievel would have used ramps to cross, when I learned that Chief Justice Roberts’ restless mind had pondered the words, “established by the State,” and discovered that they actually mean, “not established by the State.” “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” explained Roberts. Uh huh. Well, yes, and Congress passed the National Prohibition Act of 1919 to ban the sale of alcoholic beverages, not to midwife organized crime, but it is not the legal prerogative of the Supreme Court to protect the legislature from the effects of its own laws.
Besides, if the Chief Justice wanted to deduce the intent of the Affordable Care Act in this regard, he had merely to consult the words of its architect, Jonathan Gruber, who said in 2012, “[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. …I hope that’s a blatant enough political reality that states will get their act together…” But robed demigods are not interested in the intent or the plain meaning of the words, “established by the state.” Instead, Roberts’ focus was fixed on salvaging what Mark Steyn calls the “push-me-pull-you” monstrosity of Obamacare rather than his solemn duty to determine the constitutionality of the law as written. So he engaged in intellectual high jinks, literally rewriting the law (as he previously did when changing “penalty” to “tax”), and performed such mental gymnastics as required to affirm for the second time your fundamental right to be subservient to the federal government in matters effecting your health and, indeed, your life and death. Thus passeth another late June morning in post-constitutional America.
The following day, traveling on the same wretched stretch of highway, I learned of John Roberts’ exasperated distress that Justice Kennedy had exercised prerogatives for which there was no legal basis, i.e., “…the right to make a state change its definition of marriage,…” “Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim,” thundered the guy who the previous day treated the Constitution as a mere speed bump on the road to utopia. My first thought was, “How the hell would he know?” The man unblushingly rewrote existing law twice on his curious odyssey as an unelected legislator, and here he was railing against Justice Kennedy? Is he schizophrenic? Is he working out some trans-ideological issues? Whatever his problem, it is We The People who are getting the judicial shaft.
To summarize then, we have a President who openly brags that he has a pen and a phone, which he uses to force his will on us in those areas where our elected representatives decline his fundamentally transformative prescriptions. Meanwhile, we have a Supreme Court that seizes for itself the right to reword existing law, and to pluck out from the text of the Constitution “fundamental” rights that were never there and never intended, reaching into the democratic process in one great swipe to override and invalidate the considered decisions and deliberations of American citizens in all 50 states. Even so, the one branch with the Constitutional charge to legislate sits stupidly, ceding its power of the purse on one hand, surrendering its power of treaty ratification with the other, ignoring its power to expand or restrict judicial jurisdiction, preferring instead to punish the half-dozen or so constitutionalists in its ranks while belittling Americans who take the Constitution seriously. We fought George III over less than this.
Well then, how’s this for starters? “SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.”
And there’s more where that came from:
SECTION 2: Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of the Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one-third of the justices may be chosen every fourth Year.
SECTION 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term.
SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.
SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in an Federal or State court.
SECTION 6: Upon three-fifths vote of the several states legislatures, the States may override a majority opinion rendered by the Supreme Court.
SECTION 7: The States’ override under Section 6 shall not be the subject of limitation or review in any Federal or State Court, or override or interference by Congress or the President.
SECTION 8: Congressional or State override authority under Sections 4 and 6 must be exercised no later than twenty-four months from the date of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited from exercising the override.
The above proposed Constitutional amendment represents but a small portion of the keen reflection and painstaking analysis in Mark Levin’s magisterial book, The Liberty Amendments, and represents perhaps the best (and last) chance we have to reverse the slide to national oblivion.
In Federalist 47, James Madison observed that,
[T]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.
Such is our condition today. But the nation’s Founders and the Constitution’s Framers are falling out of favor these days, Alexander Hamilton having recently been evicted from the $10 bill, so perhaps we can reach back a bit further to Charles de Montesquieu, whose 1748 work, The Spirit Of Laws warned that:
When legislative power is united with executive power in a single person or in a simple body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from the legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator.
As news stories reference various initiatives designed to ignore or somehow nullify federal rulings, I find myself entirely sympathetic with those who have had enough of this lunacy and who are willing to draw a line in the sand. And so I respectfully tender my suggestion that their considerable energy might be well invested instead in the corrective measures the Framers themselves provided in the Constitution. Article V provides the means to take such ideas as are listed above, deliberate them, improve upon them or replace them with better ideas, and implement them in a way that totally bypasses a federal government that has become despotic and is utterly incapable of repairing itself.
In his Second Treatise on Civil Government, John Locke noted that:
…[F]reedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power [emphasis mine] erected to it; a liberty to follow my own will in all things, where the rules prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.
I’ve lived my life as a free man, obedient first to my God, faithful to my family, loyal to my country, and mindful of the lessons of human history. That I and others have been able to choose and pursue this path is the ideal to which generations of Americans, including those whom we will honor this Fourth of July, devoted, as Lincoln reminded us, the last full measure of their devotion. May we be as dedicated in utilizing the rights of redress they provided as they were in securing those rights for us.