Friday, June 26, 2015

Abetting deception

I ran across I comment on the Obamacare ruling with I will use as a foil:

A lot of the criticism I'm seeing of this decision would cut against many apologetical arguments for the consistency of scripture, undermining the principle of "scripture interprets scripture" and such. It's as if it's impossible for something to look like it means something on the surface but really mean something else, where you can tell it by looking elsewhere in the document to see what the overall intent was. That point can be observed even in original public meaning, as long as the principle of charity is in operation to guide how we interpret the public meaning. We don't have to turn to intent derived from looking at external documents to get such a thing.
It's a separate question, of course, whether their arguments for interpreting things this way are correct, but much of the rancor I'm seeing from conservatives against the Roberts opinion would seem to me to undercut some of the better apologetical arguments defending scripture from the charge of contradiction (ones that are eminently reasonable when you take a whole book into account but seem unlikely if you only look at one verse, say).

For several reasons I disagree with his comparison:

i) Inerrantist Bible scholars pursue harmonistic strategies under the presupposition that the Bible can't contain substantive contradictions. But that's disanalogous to an uninspired piece of legislation.

ii) Some Bible scholars who aren't committed to inerrancy, or who bracket inerrancy for methodological reasons, still pursue harmonistic strategies because they think a good historian doesn't automatically assume that apparent contradictions in his source material are actual contradictions. He should first explore whether there are reasonable harmonizations. 

However, even on that weaker principle, the alleged parallel breaks down. Obamacare is a huge, complex bill (2700 pages). A consensus document. Lots of compromises. Lots of horsetrading to get the necessary votes for passage. Probably no Democrat who voted for the bill even read it in toto. Under those circumstances, it is to be expected that the bill will contain actual contradictions. 

iii) In addition, bills like this contain many loose ends because they don't detail policies; rather, they authorize an agency of the executive branch to use these laws as general guidelines to formulate specific regulations. It's up to the secretary of HHS and her team to tie up all the loose ends. Under those circumstances, there's no reason to think the bill will be free of inconsistencies. 

iv) Even more to the point, on at least four occasions, Jonathan Gruber, who basically ghostwrote the disputed provisions, publicly admitted that the wording of the provisions was intentionally deceptive. The wording deliberately concealed the true intentions of the lawmakers. Had the lawmakers can been candid about their real aims, they would have been unable to secure enough votes for passage. The proposed bill would be too unpopular with the electorate. 

But a deliberately devious formulation scarcely merits charitable reading. It's not an epistemic virtue to play the fool for a deceiver. It's not an epistemic virtue to let someone pull the wool over your eyes. It would be gullible to give a known deceiver the benefit of the doubt.

Roberts calls it "inartful drafting." To the contrary, it was very artful drafting. It was willful dissimulation. 

v) In addition, the court has no duty to do the dirty work for Congress. The court has no obligation to honor the mendacity of the lawmakers who were acting in bad faith by rewriting the law to make it say what it doesn't say because lawmakers duplicitously wrote something different than what they really meant the provisions to achieve. 

All things being equal, I think the court ought to take legislative intent into consideration. But not if the text of the law is an exercise in studied prevarication. It is not the duty of the court to collude with lawmakers in committing legislative fraud.  

Several hours later, the same person I quoted made some observations similar to mine–although I take a harder line. He went on to say:

The ambiguity argument was a different one. The claim there was that the text could be read either way but that they can choose to interpret it in the way that leads to the best consequences if it's genuinely ambiguous. They chose not to go that way.
What they instead said is that, in context in terms of what the rest of the law says, the best interpretation of this one particular line is that it doesn't mean what the surface meaning would lead you to expect if taken by itself.
That's an error in interpreting the rest of the act, i.e. the particular reasoning in the opinion, not an argument against the type of reasoning being done here, which is what many conservatives are unwisely giving without thinking of how terrible it would be to apply that kind of criticism across the board.
The other problem I have is that it's not clear the act is even consistent. Roberts did take them to task for how badly it's written, how the closed-door sessions, multiple authors, and limited ability for members to read it before voting makes it a bad law even apart from what it requires. I'm not sure he appreciates how bad, thought, because there's a plausible argument that it's not ambiguous between the two readings but is just plain inconsistent because it outright asserts both conflicting readings.
In such conditions, judges have been known to make a call to remove a contradiction, usually relying on some kind of revealed intent, but I don't think that works here, because you have Gruber and the other architects saying one thing and the others who were totally unaware of what he act did who added other stuff that conflicted with it, and there just isn't one original intent. That's much more plausible to me than the one-meaning Roberts view, the ambiguity view that they rejected, or the one-meaning but other-interpretation view of the dissent. 

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