Language, intent, and “interpretation”
Pursuant to an exchange happening in the comments, allow me to respond to a point argued by the Chief Justice — which is at the very heart of his decision — and add it to the response from the dissenters. I do this because it will become clear to many longtime readers of this site just how perfectly Roberts’ argument, and my rebuttal to it, replays the intentionalism discussions so inextricably linked to protein wisdom’s raison d’etre.
Notes Roberts (citing Holmes):
between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.
To which the dissenters responded:
[Scalia, Kennedy, Thomas, and Alito, JJ., dissenting] “[...] In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
The conservatives on the Court did a good job with this from the perspective of legal precedent. My concentration will be to tackle this from the position of linguistic coherence. Because again, I must point out that this is precisely why we are where we are — and why conservatism and classical liberalism will continue to erode should we not address the root linguistic issues that work consistently to push the determination of meaning into the hands of those who do violence to texts.
In this case, Roberts begins in error — and in so doing, reveals himself not to be an originalist at all. Because from an hermeneutic perspective, it is nonsensical to say (by way of reference to Holmes) that, in the case of the Affordable Care Act, there were before him “two possible interpretations”.
And that’s because there weren’t “two possible intepretations” — unless, that is, one thinks of interpretation as the ability to change another’s meaning and yet still keep that person’s signifiers (the marks that look like language) intact.
Consider: if you already know what someone intended — that is, you already know what they meant when they communicated to you through what you assume to be language — then you’ve already done the job of interpreting, which is merely to decode the message they wished to get across.
And here, Congress and the President told all of us that the individual mandate was intended as a penalty, not a tax. Further, the legislative history so important to originalism clearly shows that the Congress rejected the tax proposal and instead reworked the statute to develop a mandate that relied on a penalty for enforcement. That they did so to avoid having to create a tax was itself an intentional act.
One can’t, therefore, “interpret” that another way; one can only assert that what was meant is not what was meant, then pretend it is the fault of those who clearly meant what they meant for not writing the law in such a way that one so inclined to couldn’t so easily and readily pervert it.
Like committing a rape, then blaming the victim for not being covered up enough in that short skirt and pumps.
The best we can do to rehabilitate Roberts is perhaps to suggest that he allowed the government’s lawyers to rewrite the law when they argued (briefly) that the penalty the Congress passed was now suddenly a tax. But if that’s the case, Roberts’ decision to accept that argument commits him to ruling on a law different than the one passed by Congress and sold to the American public.
How we get there matters. What we think we’re doing when we claim to be interpreting matters. The moment we as a society allowed for the institutionalization of bastardized ideas of what comes to count as “interpretation” — in this instance, CJ Roberts has conflated interpretation with his ability to manipulate the marks presented him by others until they supposedly “say” what he wants them to say, in essence, intentionally rewriting the text to make it his own, then pretending Congress allowed for him to do so — is the very same moment we began the road toward a complete deconstruction of the founding principles of individual autonomy and liberty.
The hermeneutic Roberts deployed here is no more than a linguistically incoherent exercise passed off as legitimate by those who wish to change the locus of meaning from the original agency to those who receive the message. And that way always lies tyranny.
Don’t say I haven’t told you so — “fundamentally unserious” though such lessons may have been.
(thanks to BMoe, Squid, sdferr, and LMC)