Court Endorses “Thought Crime”

Even though George Orwell was a “democratic socialist” – or even a communist – his accurate prescience regarding the growth of totalitarianism, what it required to acquire and maintain power, and what it would do to men makes him unique among all other leftist writers who also wrote dystopian novels. His writing style, which stressed clarity and intellectual honesty in any kind of writing (his essays on this subject are marvelous), redeems him.

It is not for nothing that when the Obama administration proposes taking over the Internet, or when courts uphold the idea of “hate speech” or endorses the regulation of speech in schools and businesses and even in government itself, no one thinks it is Aldous “Huxleyian” or Thomas “Hobbesian.” It is immediately dubbed “Orwellian." In terms of totalitarian methods and ends, Orwell literally wrote the book.

So when I first read of U.S. District Court Judge Gladys Kessler’s recent ruling on Obamacare, in which she states, among other things, that “mental activity” can be treated as “commerce,” even if that activity does not lead to observable, demonstrable action, and that no distinction can be made between the actions of one’s mind and physical actions, I immediately recalled a statement in Orwell’s novel Nineteen-Eighty Four:

Thoughtcrime does not entail death: thoughtcrime IS death.*

Judge Kessler, a Clinton appointee, has thus, whether she knows it or not, endorsed the notion of thought crime, or “crimethink.” The “thought crime” she is endorsing, which is not choosing to buy government-mandated health insurance after private consideration (or none at all), will not entail anything as severe as execution by the state. Instead, it would entail a hefty penalty (a special “tax”) on the recalcitrant, or even prison. Of course, paying the fine and/or serving time in prison may lead to one’s death, or at least to one’s reduced financial circumstances, but that is beside the point.

The details of the invidious fraud that is the Patient Protection and Affordable Care Act are not the subject here. The particulars and mechanics of that scam have been written about extensively in other venues. What concerns us here is the attack on the mind, on the means of man’s survival.

Kessler’s ruling has been excoriated, mocked, and shredded by The Wall Street Journal, The American Spectator, Fox, and other leading news outlets. Five plaintiffs brought action against Attorney General Eric H. Holder, Jr., Kathleen Sebelius, secretary of the Department of Health and Human Services, and Timothy F. Geithner of the United States Department of the Treasury. They argued that the individual or compulsory mandate of Obamacare would cause them financial hardship, that it was beyond the power of Congress to enact or unconstitutional, and that it reduced God to second-fiddle in terms of the deity guaranteeing their health and well-being.

The paragraph that invited the well-deserved fusillade appears on page 45 of the 64-page ruling:

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power. See Thomas More Law Ctr., 720 F.Supp.2d at 893 (describing the “activity/inactivity distinction” as an issue of first impression). However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance...It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting,' especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action on, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

Words, to Kessler, mean nothing. They are merely “pure semantics” whose meanings will be what those with guns and laws mean them to be.

Avik Roy in Forbes shines a heat-intensive arc light on Kessler’s ruling:

The idea that you can pass an unconstitutional law to remedy a problem created by a prior act of Congress makes no sense. The more straightforward remedy is to repeal the old law, or fully fund it. If a dumb federal law drove New York’s newspapers into bankruptcy, would it be okay for the government to force you to subscribe to the New York Post?

Indeed, according to Judge Kessler, if Congress passed a law requiring restaurants and hotels to provide their services free of charge, it would then be okay for Congress to pass a second law forcing individuals to eat out and stay in hotels.

Whether or not “forgoing” health insurance can be defined as “not acting” or as a form of “acting” is irrelevant. Thinking about whether or not to purchase it is indeed “mental activity”; it may move one to purchase it, or it may stay one’s hand. Not buying it, according to Kessler’s illogic, comes under the aegis of the Commerce Clause in the Constitution. But what business has the government to begin assuming that one has or has not “thought” about it, and more, that it may, on the most specious and nearly laughable illogic, regulate this “mental activity”– indeed, punish it for not conforming to the individual mandate and just obey? That is, for not acting blindly?

The only way to avoid or escape punishment for nonfeasance – that is, a failure to do one’s duty and buy health insurance and help to spread the risk around and fulfill one’s office as a loyal, responsible citizen – is to literally not think, and purchase it. Snuck into this decision is the phenomenon of thought control. Why think about the issue at all? There are no other non-punishable options possible to a conscious mind. Thinking about it will just lead to sorrow. Congress and the government may “regulate” your thinking to the extent that you do not think, that is, if you engage in no “mental activity.” Heads you lose, tails you lose -- your freedom.

Fox News summed up Kessler’s brainstorm this way:

The judge is saying this: “Anytime you make a choice not to act you are 'acting.'”…Are you thinking about blogging about this subject now too? DANGER! YOU COULD BE REGULATED AND TAXED STOP!

And in not acting, you are acting, and therefore your non-action/ action may be regulated, and, if necessary, punished. In Kessler’s anti-Aristotelian universe, A may be non-A at the same time.

Let us concretize this illogic: After paying income taxes, sales taxes, all sorts of government fees and excises, you are able to set aside some money which you put into a savings account, or the money market, or an insurance policy, or some other rewarding venue. That is, you choose not to spend it. You are not acting to spend your money. You invest it and forget it. Your money earns interest. But, the interest you managed to earn by the end of the next year by not acting – is taxed.

In this instance, you choose not to spend money on a health insurance policy you don’t want or need and save money. The money not spent will be taxed. The IRS beat Kessler to the punch decades ago in the real realm of tangible wealth. Kessler has moved into the realm of the mind.

That is Kessler’s non-action/action in action. She is now proposing that this horrific scheme be applied to one’s mind in the realm of socialized medicine. This is not only an assault on epistemology and reason. It is a denial of metaphysics. Kessler is the last person in the world to accuse anyone of “pretending” to ignore reality.

A Congressionally “regulated” mind under the Commerce Clause is one that simply agrees with anything an advocate of Obamacare says about it. On the other side of Kessler’s coin are the three slogans of Orwell’s totalitarian state: War is Peace. Ignorance is Strength. Freedom is Slavery.

To which Judge Gladys Kessler has added another: Meaning is Meaningless. Never mind what the Framers “meant.”


*Orwell’s Nineteen-Eighty Four: Text, Sources, Criticism. Ed. by Irving Howe. (New York: Harcourt Brace Jovanovich, 1963), p. 20.