protein wisdom says: I freakin’ told you so. [updated x2]
Over. And over. And over and over and over and over and over. And over and over and over.
Intentionalism just is. But because we can’t concern ourselves with what we believe we’re doing when we claim to be interpreting, we’ve ended up institutionalizing a tyrannical form of “interpretation” that is linguistically incoherent. Thus, behold:
The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.
I won’t have to unpack that for longtime readers of this site, but do allow me to unpack it — as I’ve done with similar linguistically incoherent statements in the past — for those who will spend today bemoaning a ruling that, when viewed from their own intepretative perspective (rather than their policy desires), they can’t honestly fault.
To wit: “Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”
Fine. How is this the case? Because, per Roberts, the mandate looks something like a tax might look and could look — much in the way a cloud formation may look like a randy sheep three way, if you’re inclined to see it that way. But unless you believe God or Nature intended to paint a sheep orgy in the gas and water vapor floating above Peoria, the clouds aren’t actually a sheep orgy save your intent to see it as such.
Intentionalism just is.
But, you argue, it clearly wasn’t intended as a tax (or if it was, there’s no way of ever knowing that, given that it was presented as a penalty and not a tax) — because the President publicly denied that it was a tax, and it was passed expressly as a penalty. Therefore, it was signified into being — at the point of passage — as a penalty. And a penalty is not a tax.
Or is it?
Intentionalism just is.
According to the CJ, a penalty is indeed a tax when it can be viewed as a tax for purposes of a ruling. Meaning, a penalty is a tax when a Justice decides to rewrite the law to turn a penalty into a tax. Which he justifies because the way the penalty looks to him suggests that “reasonable” people (or philosopher kings) can, if they squint — and if they ignore the intent that turned the law into law in the first place, and turned a set of marks into a set of signs, into language — see a tax. How that is “reasonable” is anyone’s guess: we know in no uncertain terms that Obama and the Dems who passed the law didn’t devise the mandate as a tax (despite what they later argued); for one to conclude that it is reasonably possible to “read” a penalty as a tax, therefore, what c0mes to count as “reasonable” must be redefined as “ignoring what we know to be true”. And that seems antithetical to “reason.”
Roberts has chosen to see a tax where a penalty was intended — thereby rewriting the law and turning it into a new text, one which he intends, though he incoherently and disingenuously suggests that he is finding meaning in the text that can “reasonably” be ascribed to it.
And to do that, he — and those who approve of the argument that justifies this ruling — has to pretend that the text exists on its own, apart from the intent that generated it and passed it, and (here’s the sneaky part) apart from his intent to imbue it with a meaning that it didn’t have upon signification — upon its becoming language and then becoming a legal manifestation of that language, of that intent. That is textualism. And textualism is merely intentionalism that legitimates the disregarding of originary intent — that seeks to claim ownership over the meaning of a text without admitting to co-opting it or rewriting it entirely until it means precisely its opposite, eg.
Voila! A penalty is a tax; non-activity is activity; a commodity is a right; a subject is a free man.
Who’s “fundamentally unserious” now, I wonder?
update: It occurred to me while taking a long walk that Roberts can claim that the was taking the Administration lawyers at their word when they argued before that court that what they had done, essentially, is levy a tax (albeit one that began in the Senate). But even were that the case, Roberts would then be issuing his ruling on a law different from the one passed by Congress: if it was presented as a penalty and intended as one, the only way to “read it as a tax” is to accept that notion that it became a tax once the government asserted that it was one.
They didn’t do so leading up to the vote, and in fact the President himself very publicly denied that the legislation’s mandate was a tax. So either Justice Roberts decided a text not intended to include a tax in fact included a tax because it can be made to look like it contains a tax by him; or else the government turned a penalty into a tax during their legal arguments, in which case CJ Roberts would be issuing a ruling on a different law entirely than the one passed by Congress and presented for review by SCOTUS.
And neither line of reasoning is hermeneutically compelling.
update 2: Lots of buzz about CJ Roberts’ genius in this ruling. All very interesting — and all very beside the point, from the perspective of my analysis. From a linguistic and hermeneutic perspective, the form of “interpretation” Roberts relied upon to reach his ruling is necessarily authoritarian. One can act tyrannically in the service of any decision — even one favorable to “our” side.
The problem is, such a method of reasoning, accepted and institutionalized as legitimate, will, in the aggregate, move us toward tyranny precisely because it is designed to do so. Which is why we need to reject judicial activism in principle and not cheer it when it serves our own ends. As I’ve been writing in the comments all morning, Roberts’ decision — ostensibly framed as restrained and above the partisan fray — is itself quite political. And some on the Left are starting to notice.
Well and good, if you wish to elevate politics above first principles — even if you say you’re doing so in the service of first principles. I don’t wish to do so. Moreover, I recognize the systemic danger in so doing.
Had Roberts just done his job, the law would be dead. Instead, he concerned himself with appearances. And we’ll all suffer for it — in perpetuity, as precedent, regardless of whether this law is repealed or not.
T0 follow-up on the spin, “Obama Wins the Battle, Roberts Wins the War — and the Constitution Loses In Both Cases”