Conservatives, Liberals and Obamacare

Emmett Tyrrell

2/3/2011 12:01:00 AM - Emmett Tyrrell

WASHINGTON -- My guess is that U.S. District Judge Roger Vinson is an amateur zoologist. Vinson is the federal judge who ruled Monday in Pensacola, Fla., that those who confected Obamacare cannot compel the citizenry to buy health insurance. Moreover, he found that because the 2,600-page bill was created without any "severability clause," the entire law is unconstitutional. The authors of Obamacare declared that without mandatory insurance, the whole bill would have been unworkable. Mandatory insurance was not severable from the law. Hence Judge Vinson, because of the way the bill was constructed, threw the whole law out. Now it is up to the Supreme Court to breathe life into this legislation or to bury it. I say R.I.P.

As learned as Vinson indubitably is -- in the course of his meditations on Obamacare, he reread the Constitution, the Federalist Papers, James Madison's notes at the Constitutional Convention, certain cogitations of former Chief Justice John Marshall and more -- the erudite judge surely noted a zoological curiosity. Conservatives and liberals are so different as to be drawn from distinct species of political animals. To me, the conservative always has appeared to be some form of mammal. The liberal is reptilian. I could be wrong. I wonder what Judge Vinson might say.

We saw this difference at work during President Barack Obama's dogged pursuit of his suicidal legislative bomb called Obamacare. Prior to that, we saw this difference at work as President Ronald Reagan pursued an issue equally dear to his heart, the banning of abortion. In wanting to ban abortion, Reagan had a goodly number of the American people behind him, though not a majority and certainly not a large enough number to burden the remainder of the American people with an abortion ban. Reagan settled for arguing his case. He relied on persuasion. He tried to build a majority behind banning abortion. Perhaps he picked up some support, but he did not envenom an already divisive issue by forcing an abortion ban on the American people.

Obama did envenom an issue, health care. Recall 15 months ago when then-House Speaker Nancy Pelosi responded to a reporter's inquiry about the constitutionality of mandatory insurance? Said she with her trademark urbanity, "Are you kidding?" Well, since then, she has lost her speakership. The Democrats have lost their majority in the House. They almost lost it in the Senate. And Judge Vinson -- and earlier Judge Henry E. Hudson -- agreed with that unnamed reporter. He had a point.

Liberals and conservatives seem to see things differently. Sometimes the liberals see "inactivity" as "activity." The conservatives see inactivity as ... well, inactivity. In the case of Obamacare, the liberals see the ordinary Americanos' failure to purchase insurance, sometimes until they absolutely need it, as increasing the cost of health care for everyone -- in other words, "activity." Thus, they will penalize anyone failing to buy health care with a tax to pay for God knows what. In the world of Obamacare, we all have costly health care. Some pay, and some do not. We are all one big happy family.

This is where the commerce clause of the Constitution comes in. The commerce clause originally was intended to eliminate the interstate trade barriers that existed under the Articles of Confederation. Yet since the New Deal -- at least up until the time of Chief Justice William Rehnquist -- it has been expanded upon so that it has given license to almost anything a congressional majority has wanted. A congressional majority even was permitted by the Supreme Court to prohibit a farmer from growing on his own farm wheat for his own consumption. Now along comes Judge Vinson arguing that the commerce clause applies only to "clear and inarguable activity ," not clear and inarguable inactivity. As The Wall Street Journal editorialized in the wake of Judge Vinson's decision, "it never applied to inactivity like not buying health insurance, which has (to quote Judge Vinson) ' no impact whatsoever ' on interstate commerce."

Applying the clause to inactivity would be significant. It would create a totally centralized government. That is to say, a government that can do almost anything. It would be unlimited government, which is another difference between conservatives and liberals. We want limited government. They do not.