- The Washington Times - Wednesday, February 2, 2011


My guess is that Judge Roger Vinson of the U.S. District Court in Pensacola, Fla., is an amateur zoologist. Judge Vinson is the federal judge who ruled Monday that those who confected Obamacare cannot compel the citizenry to buy health insurance. Moreover, he found that the way the 2,700-page law was created, without any “severability clause,” makes the entire law unconstitutional. The authors of Obamacare declared that without mandatory insurance, the whole bill was unworkable. Mandatory insurance is not severable from the law. Hence, Judge Vinson threw out the whole law because of the way it was constructed. Now it is up to the Supreme Court to breathe life into this legislation or bury it. I say RIP.

As learned as Judge 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 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 has always 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 Obama’s dogged pursuit of his suicidal legislative bomb called Obamacare. Before that, we saw this difference at work as President 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.

Mr. Obama did envenom an issue - health care. Remember 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. Judge Vinson and, earlier, U.S. District Judge Henry E. Hudson of Eastern Virginia agreed with that unnamed reporter. He had a point.

Liberals and conservatives seem to see things differently. Sometimes the liberals see “inactivity” as “activity.” Conservatives see inactivity as - well, inactivity. In the case of Obamacare, the liberals see ordinary Americans’ 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, it has been expanded so that at least up until the time of Chief Justice William H. Rehnquist, it gave license to almost anything a congressional majority wanted. The congressional majority even was permitted by the 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 [to quote Judge Vinson] has ‘no impact whatsoever’ on interstate commerce.”

Making it apply would be significant. It would create a totally centralized government. That is to say, a government that could do almost anything. It would be unlimited government, which is another difference between conservatives and liberals. We want limited government. They do not.

R. Emmett Tyrrell Jr. is founder and editor-in-chief of the American Spectator and an adjunct scholar at the Hudson Institute. His new book is “After the Hangover: The Conservatives’ Road to Recovery” (Thomas Nelson, 2010).

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