Patterico's Pontifications

3/5/2015

Scott Johnson on the Dangers of Ignoring Plain Text in Favor of Subjective Intentions

Filed under: General — Patterico @ 7:54 am



As I said last night, it is far from clear, but the good guys in the King v. Burwell case may lose. Scott Johnson explains how this results from the left’s placing the “spirit” of a law over its plain meaning, which he calls the triumph of the leftist will (h/t MD in Philly).

As Johnson reminds us, William Brennan once did the same thing with the Civil Rights Act of 1964, which said:

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee…to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

As Johnson notes, William Brennan turned “it shall be . . . unlawful . . . to discriminate against any individual because of his race” into the polar opposite: “it shall be lawful to discriminate against any (white) individual because of his race.” The reason? Forget the words, Brennan said. We have to look at subjective intentions. And the subjective intention of the law was to help blacks.

That would be the same thing as taking the words “established by the state” and treating them as though they did not exist. Progressives say they can do that because of the “spirit” of the law — i.e., the alleged subjective intentions of those who wrote the law. Me, I don’t care whether the people who wrote those words actually intended to limit subsidies to exchanges established by the state or not. That’s what they said, and what they said ends the matter.

To hell with their subjective intentions. Those mean nothing.

There was a time when some conservatives argued that what a legal text “means” depends on the subjective intention of the legislators. That it would be “activism” which “violates the separation of powers” for a judge to ignore subjective “legislative intent” for a purely textual reading. I argued until I was blue in the face against such an interpretation, explaining that it undermines the rule of law if the written word is not interpreted as meaning what it says.

With the advent of Halbig/King, curiously enough, no conservative disagrees with me any more. And that’s a good thing.

It is important to remember: when progressives tell you to ignore the words they wrote in a law, that is how progressives undermine the rule of law. They use an appeal to “intention” to make the words mean whatever they say they mean. This sort of thing, if accepted, means the rule of law disappears.

It’s the only thing we have left, and it’s slipping away, day by day.

39 Responses to “Scott Johnson on the Dangers of Ignoring Plain Text in Favor of Subjective Intentions”

  1. Ding.

    Patterico (9c670f)

  2. Orrin Hatch is absolutely 100% determined to make good on the unlawful subsidies no matter what the Supreme Court says the law says

    we’ll just tax these people over here and give the monies to these losers over here

    Sarah Palin sure do know how to pick em huh

    happyfeet (a037ad)

  3. The Supremes may be aware of the growing cynicism about their adherence to the law, as opposed to social engineering. That’s about our best hope for a decision that is honest and consistent with the law.

    The four lefties are unconcerned. The Roberts and Kennedy consciences are all we have left.

    Mike K (90dfdc)

  4. re #2: that makes no sense on multiple levels but lets just stick to the fact
    that no one in this case is arguing before the SC that the whole setup is not
    fixable by simply changing the law. Which is what Sen Hatch predicted would happen if the SC overturned the text of this tax bill.

    I wonder if the case might not hinge on the fact that there may be hesitancy on some of them to change what a tax bill says to what may have been intended.
    And to Patterico point, if it would be seen as a slippery slope that could easily
    be used against your political views.

    seeRpea (3383a9)

  5. It isn’t slipping away. The Rule of Law, or rather the necessity of following written Law, has disappeared from people’s thinking. It has been systematically erased from the majority mindset. The people in office reflect this.

    The Rule of Law as seen today is basically whatever those who hold power want at the moment, with no regard for precedent, the rights of the people, the role of compromise, and true political life. We have thrown away our birthright of freedom. The Rule of Law based on legitimately written and passed law has been dead for years.

    Those dusty texts (including laws passed just a few years ago) are now merely a prop used to provide a veneer of legitimacy for the ignorant.

    Amphipolis (c6238a)

  6. George Orwell got this, and wrote about it a long time ago (“1984,” “Animal Farm”), because it’s not a new phenomenon — but it’s still just as dangerous or, perhaps, moreso.

    For that matter, Lewis Carroll got this. The Administration ought to have just sent the Red Queen to oral argument.

    Beldar (fa637a)

  7. “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    “The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

    Beldar (fa637a)

  8. I just get so upset Mr. pea

    when i was born i was in a constitutional republic but now I don’t even know what you call this

    happyfeet (a037ad)

  9. Mr. Feets – Does Sen. Orrin Hatch have a pickle in his pocket with your name on or something? Is that why he has become your new bestest obsession?

    daleyrocks (bf33e9)

  10. he’s undermining EVERYTHING

    happyfeet (a037ad)

  11. The Supreme Court is in an interesting position. By deciding that the wording of laws is not important, they remove Congress from the three-way balance of powers. If they so decide, then everything will be done by the Administration with the functionally powerless Supreme Court pretending to be a referee.

    This will be viewed as a step forward by Boehner and McConnell as their ineptness will become a matter of no significance. No longer will they have two-thirds of their Party voting against their initiatives. No need to have those aggravating debates followed by embarrassing votes. Pass a two year continuing resolution by acclimation and they can all go home three months after they’ve been reelected. Of course, most of them would find office space on “K” Street so as to stay in the game.

    The only question is whether the words of laws written following the reign of Obola will once again be considered to be meaningful. Presumably not.

    We are about to cast away a thousand years of progress.

    bobathome (cb0d92)

  12. If the Supremes decide that the words of the laws don’t matter, then this would appear to open up a whole new line of defense for criminal cases. We might presume that murder would continue to be a punishable act, but if we have established quotas for prosecutions based on race, as the DoJ has done in reviewing the Ferguson affair, then those murders occurring after a quota has been filled could not be prosecuted without impinging on the administration’s statistical test of “social justice”. The courts would have to balance the quota with the act, and only the court would have the wisdom to know when the quota was paramount. Or perhaps the court would defer to the prosecutor’s discretion.

    bobathome (cb0d92)

  13. Mark Steyn is endorsing a film project celebrating the 800th anniversary of the Magna Cart Libertatum. If you want to contribute to the kickstarter project, the link is on Steyn’s website. He also has a few well chosen words on the subject of the Rule of Law that relate to the current topic.

    I expect to get a lot more satisfaction out of this contribution than I have from my (modest and still) lamentable support of McSally.

    bobathome (cb0d92)

  14. If the meaning of words make no difference,
    then there is no reason to listen to what a person on the Supreme Court says,
    or any judge,
    or lawyer.

    But I think only philosophers these days understand what a self-refuting argument is,
    everyone else thinks it sounds smart.

    What did they teach in those schools, anyway?

    MD in Philly (f9371b)

  15. But… but… reading the text is a newfangled idea that was introduced by a shadowy group in 1980!

    http://www.propublica.org/article/behind-supreme-courts-obamacare-case-a-secretive-societys-hidden-hand

    scrubone (c3104f)

  16. The correct remedy is for congress to amend the law, not for the IRS to re interpret the law capriciously in violation of the law or at the behest of the executive.)

    Let them take the full burden or action to allow or withhold subsidies from states that didn’t knuckle under. They can answer to voters.

    SarahW (267b14)

  17. while we’re talking about douchebags the douche factor with this guy is off the charts

    i just had to share

    he’s been on all these apartment ads on my train all winter and i don’t ever wanna live anywhere near the douchiest douche in doucheville

    but maybe some people do?

    happyfeet (a037ad)

  18. I hope you’re getting all psyched up as well as physically prepared for St Paddy’s Day Windy City style, Mr. feets. It’s coming soon.

    elissa (689d77)

  19. i’ve had some discussions

    i’m ambivalent cause of i stopped drinking a couple months ago – i can’t get my head around the taxes here there’s a big state tax and a sales tax and a cook county tax AND a chicago tax

    now c’mon

    i love me some cocktails but that’s just taking advantage of a pikachu

    it’s not a good feeling

    for beer and wine it’s not as bad but relative to most of the rest of America even that’s obscene what they do

    the only travel i have booked is minnesota for the 4th and I’m flying but I’ll bring something back for sure probably a handle of Tito’s

    oh btw can’t wait to go see Galena but it looks like you really wanna try and catch it at just the right lil bit of off-season

    happyfeet (a037ad)

  20. St Patrick’s Day is about the shamrock green river, and the parade, and the “wearin’ o’ the green”, and everybody being extra friendly to everybody else since everybody’s Irish that day no matter where their ancestors came from. Booze is optional. You’ll be fine.

    elissa (689d77)

  21. ok

    i still need to have my first chicago dog so maybe I can knock that out for SPD

    maybe go to that river north Al’s

    happyfeet (a037ad)

  22. My wife is baking Irish Soda Bread today, smells so good and is delicious. She makes loaves for both are families. Her family is from Milltown Malby, County Clare.

    mg (31009b)

  23. that sounds so good

    i was gonna go get my bible bread today but i think that’ll be a next week thing

    happyfeet (a037ad)

  24. River North Al’s is good for a lot of things — dogs, beef sammiches, making new friends…

    carlitos (c24ed5)

  25. it’s by far my favorite italian beef

    happyfeet (a037ad)

  26. What we need is a few less Orrin Hatches and a few more Ida Greens. Well you may ask “Who is Ida Green?”. Ida was my Junior and Senior English teacher all those years ago. If you wrote something as imprecise as the OC legislation she would look over her glasses and say something like “What do you mean by this Mr f1?” You didn’t want this to happen too often or you would wind up getting demoted to Miss Rinsets class.

    f1guyus (9cbd15)

  27. The correct remedy is for congress to amend the law, not for the IRS to re interpret the law capriciously in violation of the law or at the behest of the executive.)

    Let them take the full burden or action to allow or withhold subsidies from states that didn’t knuckle under. They can answer to voters.

    That’s obviously correct, but sometimes I see people advance that as their only statement about how the law should be interpreted.

    Before Congress does or does not amend the law, the courts have to make a call on how to interpret it.

    Some conservatives used to argue that reading the plain text violated the separation of powers, and today argue that ignoring the plain text violates the separation of powers.

    If they didn’t pretend they hadn’t changed their mind (remind you of anyone? “as I have always said”) I could simply say:

    We’ve come a long way, baby.

    Patterico (9c670f)

  28. “Intent” matters when liberals are interpreting legislation in a way that they want. When they use the fourteenth amendment to justify overturning gay marriage bans, they have absolutely no interest in the intent of the authors.

    wwplyler (409ff3)

  29. recall Hubert Humphrey, said ‘he would eat his hat’ if the bill ended up, being what it turned out to be,

    narciso (ee1f88)

  30. Your argument makes me think of Bolt’s “A Man for All Seasons” and Sir Thomas More’s argument in favor of being a stickler for the law.

    neocon_1 (0a21d6)

  31. This case actually strikes me as useful for other purposes besides the life or death of Obamacare.

    The people who claim that there is a genuine issue that can be disputed in good faith here, at least among those whose pedigrees and credentials and law licenses might imbue them with some superficial credibility, have exposed themselves as utter charlatans and liars in my humble but very firm opinion.

    This isn’t actually a close case for anyone with an ounce, a scintilla, of lawyerly integrity.

    Beldar (fa637a)

  32. (I’m willing to accept, and nod with tolerance toward, anyone who insists that the phrase “lawyerly integrity” is a hypothetical concept much like unicorns. But it’s a concept, even if fantastical, that my professional life depends upon, so I’m sticking to it.)

    Beldar (fa637a)

  33. That’s not a fair comparison, Beldar. There’s no evidence against the existence of unicorns.

    nk (dbc370)

  34. 17. Mr. Feets, he is merely on loan from California. Don’t worry, he probably went back already after his first taste if winter. Notice what kind of weather he is dressed for.
    The guy who is truly worthy of being called an Obama voter is the guy in the other photo, who insisted on watching the Blackhawks in a position certain to give him a twisted neck.

    kishnevi (9c4b9c)

  35. I’m beginning to think that these SCOTUS guys and gals are missing an increasingly plain point: They are being used as dupes by all three branches, who are eager to avoid responsibility for legislation and/or implementation of Law. If the pols can’t offload their sworn duties to the administrative state, they will settle for the nine black robes.

    Patricia (5fc097)

  36. Of course there are those who accuse right wing commentators of ignoring the plain meaning of “such exchange” or “qualified”

    Northener (54cc9d)

  37. also your statement that you do not care what the subjective intent of Congress indicates you have now given up on the notion it matters whether or not the Moops invaded Spain. that’s what the card says, so that’s what we have to believe. Right?

    Northener (54cc9d)

  38. Northener – Adorable. Board game versus law. Bless your heart.

    daleyrocks (bf33e9)

  39. Of course there are those who accuse left wing commentators and Supreme Court Justices of ignoring the plain meaning of the law with shiny distractions, stupid analogies and predictions of doom.

    daleyrocks (bf33e9)


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