June 26th, 2015

Macbeth the Usurper

Roberts Was Right

The Robert's court has held up the subsidy provision of Obamacare.

Putting on my Conservative upbringing hat (which I keep around for such occasions), he was right to do so.

Literalism sounds like a good idea in law, but in practice, it just doesn't work. As Roberts indicated, many parts of the law were "inartfully drafted." If the court had found that that particular clause could be interpreted differently due to a flaw in the drafting, then every law could be held to the same scrutiny, with every flaw being held accountable. The results would be judicial gridlock as every flaw in every law became actionable.

Even worse, new laws would see more suits than old laws. Imagine being a conservative, getting your law passed, then having it torn apart by your opposition for every grammatical mistake and drafting oversight. Your attempt to implement a truly conservative government would grind to a halt. The effort to defeat one law would lead to countless conservative defeats in the future.

The truth is that law isn't dictum, law is dialog. Law exists in a relationship between the writers, the implementers, and the court. Laws aren't merely words on a piece of paper, they are interactive bits of government and society that work through a common understanding. Because no law is without flaw or error, the system needs a reasonable threshhold of imperfection so that the laws can operate toward their intended goal as the drafters intended.

If humans could draft perfect laws, then yes, literal reading would be useful. Humans aren't perfect. Laws aren't perfect. In that context, a literal reading of the a law is an impossible ideal.