So what now? Repeal? Court challenges? To this point, as far as I can tell, conservative hopes for effecting the kind of political fumigation necessary to rid us of this odious health-care bill appear tied to at least one of these two strategies. The trouble, of course, is that neither seems likely to produce the desired outcome. Repeal stands no chance until 2013 at the earliest. And there seems to be a fair amount of doubt
as to whether the Supreme Court, having hitherto interpreted Congress's powers under the commerce clause as virtually unlimited, would even hear the challenges. With this in mind, I would offer a third option: an amendment to the United States Constitution.
While this tertium quid
poses difficulties of its own, it does bear the distinguishing marks of a desirable and, comparatively speaking, plausible political remedy. As we all know, Article V provides that "Congress, whenever two-thirds of both houses deem it necessary, shall propose Amendments" to the Constitution. Not even the wildest of wild-eyed Republican dreamers would dare predict a November electoral landslide overwhelming enough to yield two-thirds of both houses. On the other hand, the remainder of Article V might give conservatives legitimate hope: "OR, on the Application of the Legislatures of two-thirds of the several States
[Congress] shall call a Convention for proposing Amendments (emphasis and italics added)." In addition to elegant and redundant proof of the Founders' dedication to genuine federalism, here we have assurances that if the entire national government aligns itself against the popular will, then the people have recourse through their state legislatures. Publius (Madison), in Federalist 43, cites this portion of Article V as a key component of the federal system, for it "equally enables the general and the state governments to originate the amendment of errors" as those errors reveal themselves over time.
Rest assured that I do not lightly advocate the opening of the Pandora's Box of constitutional revision. But so long as our progressive overlords insist on interpreting the Constitution as a general grant of powers that imposes specific limitations only, and
the Constitution ceases to operate as a real check upon government at the national level, and
a majority of Americans continue to cherish the Founding principles, I would suggest that we might have more to gain than to fear from such a convention.
For practical purposes, this means that Republicans, in order to effect constitutional change, would have to focus their energies on state legislative campaigns. At present, the GOP stands dozens of states short of controlling the thirty-four legislatures necessary to call a convention or the thirty-eight necessary to ratify an amendment. A closer inspection, however, reveals that more than half of the Democratic-controlled state legislatures could fall into the "toss-up" category this November, assuming the projected Republican landslide materializes at the national level. In Alabama, for instance, Democrats currently hold a 61-43 majority in the lower house, and yet twenty-two of those sixty-one Democrats have taken their seats since 2002. Perhaps no one this side of Michael Barone could calculate the probability of a Republican sweep through the state legislatures, but Mr. Barone, America's resident political encyclopedia, does have some encouraging things to report from the president's home state
Adding an amendment to the United States Constitution ("Congress shall make no law...requiring citizens to purchase any goods or services, etc.") through proposals originating in the states would combine a multitude of virtues. For one, Republican consciences could rest easy knowing that they did not sully the defense of their liberties by covering it in the stench of judicial review. Second, state-level action eliminates the veto pen, rendering powerless the render-in-chief and all of his lacerations upon American constitutionalism. Finally, it would remind all Americans that sovereignty resides in the people, that the people may divide and channel their sovereignty across multiple levels of government and through as many different institutions as they see fit, and that, if they so choose, they may alter the fundamental compact without the approval of a single member of the national government.