Those who cleave to the “living Constitution” think that a law is constitutional because that’s the way, in their estimation, things should be. Government, however, cannot be allowed to negate an individual’s rights just to make a government program workable. One of the rights at issue in Virginia is the right of the individual to be let alone.
Progressives like Mr. Levine don’t accept that an individual should have this right. Progressives think government should be able to intrude into everything (except, of course, telephone conversations between terrorists).
If the Constitution specifically granted to the federal government the power to provide health care, then justifications for ObamaCare (like the Commerce Clause) wouldn’t need to be invoked because the 10th Amendment would present no impediment. But even if such a power were indeed granted to the feds, the individual mandate would still clash with the Constitution, namely the Equal Protection Clause of the 14th Amendment.
That’s because ObamaCare’s individual mandate requires some individuals to do something (and merely because they’re individuals), yet exempts other individuals from that same requirement. This is unequal on its face. The individual mandate is like a capitation, or head tax, that exempts some from paying the tax and/or levies varying tax bills. Such a tax couldn’t be called a capitation because it treats individuals unequally.
For those on the political left who are forever harping about equality, this should be a problem. But it’s not. That’s because ObamaCare isn’t about equality; it’s about power. Congress must not be allowed to have such raw, unchecked power.
The one disappointment in Hudson’s otherwise fine decision is that he didn’t issue an injunction on further implementation of ObamaCare. An injunction would fast track the coming appeals. It’s important that the Supreme Court hears this case before a new Congress and a new president summarily repeal the whole misbegotten mess. For a Supreme Court decision on Virginia v. Sebelius would give us clarity about the limits of both the Commerce Clause and congressional power.
And it would let us know whether we Americans are citizens — or subjects.
Jon N. Hall is a programmer/analyst from Kansas City.
Judge Henry E. Hudson
