One of the most hackneyed lines in the apparently endless and sterile partisan tug-of-war in Washington is this sanctimonious claptrap about Obamacare being “the law of the land” and that it therefore must not be obstructed. Anyone resorting to such pious invocations of the law in the United States should be subject to a potential penalty (applied only in the most extreme cases) of the extraction of the tongue with red-hot tongs.
This is because that level of respect for “the law of the land” is almost never how the law actually works in the U.S. The legal cartel has an unimpoverishable ability to drag things out forever; there are always appeals and there is always a window to attack targets in prosecutions again. People, guilty and innocent, sit on Death Row for decades. Over 4,000 laws and regulations with serious sanctions are adopted every year in the U.S., and everybody is regularly committing some infraction of something. But this sort of prim, moralistic finality – “the day in court is over, the verdict is in” — is especially irritating coming from legislators who spend their lives creating more herniating masses of official authority to assist their colleagues in the practice of the law in the extraction of their comfortable livings. And it is terribly annoying when this self-righteousness comes from Democrats, the party complicit in the skulduggery that enabled the Affordable Care Act to be passed in the first place.
The United States has 5 percent of the world’s people, 25 percent of its incarcerated people, and half of its trained lawyers (who now take about 10 percent of the GDP); the legal system is an embarrassment, and the criminal-justice system is a disgrace, in which prosecutors win 99.5 percent of their cases, 97 percent of them without a trial. The legislators of the country are ultimately responsible for this corruption of what the Constitution and Bill of Rights set up as a just and merciful Society of Laws. The terminal cancer of legal paralysis spreads every week of every year. Unctuous platitudes from the era when Norman Rockwell painted the country, our grandmothers set out the Corn Flakes and the apple pie, and Hollywood was pro-American won’t cut it now, even if the United States even back then was a much more complicated country than it thought it was.
The Affordable Care Act was passed in a dubious manner. The 60-vote level in the Senate was obtained by the subornation of Arlen Specter in that tainted window between his rejection by his own party and his defeat by the Pennsylvania voters, and by Al Franken’s questionable win in the Senate election in Minnesota, where partisan, county-by-county recounts overturned the people’s choice. Also, most egregiously, Republican senator Ted Stevens of Alaska had been narrowly defeated in 2008 after being convicted of taking a bribe — a conviction that was subsequently thrown out because of the prosecutor’s completely improper suppression of exculpatory evidence.
The Affordable Care Act, then, owes its existence to political treachery, electoral hijinks, and extreme prosecutorial misconduct, and it ill behooves the Democrats and their incessant hallelujah chorus among both the hacks and the incurably gullible in the media to incant with woeful faces and in mournful inflection any misuse of due legislative process. The fact that the chief justice had to transform himself into an acrobat and claim that Obamacare was constitutional, under the federal government’s right to tax, does not excuse everybody else from seeing this ill-conceived monstrosity of a law for what it is and what its provenance is.
It is scandalous that there remains such a sadistic determination to inflict this measure, unaltered, on the country that does not want it, even though it has been launched and has sunk, without a ripple, as soon as it cleared the slipways, as the entire system of joining up and doing as this insane measure purports to require is impossible. Immediately following the oath of allegiance, in every school and similar ceremony in the entire country, there should be an obligatory pause to consider how it happened that the United States, in its dysfunctionality, is on the verge of default on its debt, its legislators’ hands tied by sequestration. The country is broke, paying its bills through a fraudulent sale of bonds to itself, running a $700 billion annual current-account deficit, and its leaders are in brinkmanship talks over the imposition of a law that no sane person now supports and that is impossible to obey.
This is the governmental equivalent of congestive heart failure. It is the domestic-affairs equivalent of the Syrian policy: the moral imperatives, red lines, “moral obscenity,” punitive action that wouldn’t really be damaging (would, in fact, be “unbelievably small”), and the constitutional position of commander-in-chief devolving to Congress. This has all become surreal.
It was at such a moment as this in British history that Oliver Cromwell stormed into the Mother of Parliaments (of which he was an elected member) and said: “You were deputed here by the people to get grievances redressed, are yourselves become the greatest grievance. . . . In the name of God, go!” They did, with a further nudge, but it didn’t work — he decapitated the king and died naturally and in office, but was soon exhumed, was himself decapitated, and had his head put on a pike in an expression of spontaneous public feedback on his statesmanship and legacy. No one is asking for any such thing here, but sweeping electoral changes don’t produce any improvement: In the congressional riptides of 1994 (Gingrich), 2006 (Pelosi), and 2010 (Boehner), inadequate placeholders at the public trough have succeeded each other with no real increase in quality. And inadequate presidents succeed one another, freely though usually narrowly; elected and reelected over completely unelectable opponents. Never in American history has there been such a prolonged drought of competent leaders.
The American people are the greatest talent pool in the world; this is a system that has always worked adequately and often well. It is a democracy, and in a democracy the people are always right and they get the government they deserve. I do not dare to believe that the people that deserved Washington, Lincoln, the Roosevelts, Truman, Eisenhower, and Reagan (and chose them a total of 14 times) deserve this.
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Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom, Richard M. Nixon: A Life in Full, A Matter of Principle, and the recently published Flight of the Eagle: The Grand Strategies That Brought America from Colonial Dependence to World Leadership. He can be reached at [email protected] This article was published in The National Review Online.