Progressivism, Purposivism, and Historical Contingency

For its lay audience City Journal asked me to explain the King v. Burwell decision, which permitted federal exchanges under the Affordable Care Act to receive subsidies. Within its brief compass, I made two points.

First, I suggested, contrary to some conservative commentators, that the majority opinion did not demonstrate that Chief Justice Roberts was unprincipled but that instead the decision followed from a principled purposivist theory of statutory interpretation. I showed why the theory was wrong: like Mike Rappaport, I believe the meaning of the provision was clear and neither purposivist nor intentionalist interpretation should be allowed to defeat a clear meaning. This analysis of Roberts’ opinion comports with my more general view that four justices labeled conservatives are often fractured, because they are more legalists than ideologues, whose different interpretive methods lead to different results that are sound under their principles even when the principles are unsound.

Second, I noted that the effects of purposive interpretation are generally friendly to progressivism because it allows judges to choose overriding purposes that advance progressive goals that were not written into law. But let me be clear that any aid that purposivism gives to progressivism is not a reason to reject purposivism, just an effect of that interpretive method.

Here is an analogy.

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The Declaration’s Principles of Politics

Last year I penned an analysis and something of a paean to the Declaration of Independence.  Perhaps a follow-up is in order.  Who knows, perhaps it could become a fourth of July tradition?  Certainly there is a good deal more in the famous text than one entry could survey.  In fact, the general purpose of this one is to provide material for reflection.  That would be a thoughtful way of being patriotic on this day of commemoration and celebration.

The Declaration applies various sorts of principles – theological; anthropological; and political – to a set of “Facts” – chiefly “injuries and usurpations” on the part of the British monarch (and, belatedly, Parliament).  It judges the facts as evincing a design of tyranny, and concludes, as it began, with the necessity and duty of revolution and independence, understood as self-government by and for free men and women.

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Confederate Flag-Waving at the Supreme Court

“I understand you are preparing to celebrate the ‘Fourth,’ tomorrow week. What for?” Abraham Lincoln‘s words to the people of Springfield in 1857, reacting to the newly announced Dred Scott decision

The ferocity of the dissents in the final days of the Supreme Court’s term obscured the most profound of the dissents, that of Justice Clarence Thomas in the same-sex marriage case, Obergefell v. Hodges. In fact the Thomas opinion gives the most radical recent account of how American government has deteriorated.

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How Modern Psychology Undermines Freedom and Responsibility: A Conversation with Theodore Dalrymple

evasionsFrequent Law and Liberty contributor Theodore Dalrymple discusses with Richard Reinsch his latest book, Admirable Evasions: How Psychology Undermines Morality. Dalrymple, a former psychiatrist in the British prison system, diagnoses modern psychology’s tendency to enable its subjects or is it objects to engage in self-absorption not self-examination. The ultimate effect of various psychological schools, Dalrymple observes, is that of an acid eating away the responsibility and freedom of the human person. His solution: a return to literature, and with that, a return to the authenticity and realism of human action and its limitations.

The Measure of Remembrance: The Declaration of Independence and the American Future

declaration

Editor’s note: This Fourth of July oration was first delivered by G. M. Curtis III on July 1, 1989 in Lone Mountain, Montana, for a conference on American citizenship.

As an American historian and as an American citizen who looks forward to the 21st. century, I place great stock in John Adams’s early 19th. century exhortation to future generations that they remember and celebrate the signing of the Declaration of Independence.  Technically speaking, I suppose that we are jumping the gun by about one day, since the Continental Congress first agreed to the Declaration on the 2nd. of July 1776.  Actually, the past five days in one way or another has represented a remembrance and a reconsideration of many of those values and beliefs that John Adams cherished enough to tender the ultimate sacrifice: his life and property.  It is altogether fitting and proper, then, as my historical footnote for these discussions and as a remembrance of the Declaration of Independence, to return to the first principles therein contained, principles that not only retain their merit today, but more importantly, offer us hope for the years to come.

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Elusive Discrimination

In what President Obama called its “thunderbolt” decision on same-sex marriage, the Supreme Court’s Obergefell v. Hodges judgement has put the matter of discrimination at the very top of America’s social agenda.

If there is one certainty in our country, it is that everyone opposes discrimination. But it is difficult to get a precise handle on what constitutes discrimination. While there is a vast literature on the subject, there is surprisingly little scholarly appetite for defining illegal discrimination.

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Bến Tre Revisited (King v. Burwell, Part One)

Hand on Book

It may be proper for me to offer some observations on the Supreme Court’s highly consequential decision in King v. Burwell. At a December 2010 presentation at the American Enterprise Institute in Washington, I explained that parsing Section 1401(a) of the Affordable Care Act, which added Internal Revenue Code Section 36B, revealed something dramatic: The amount of a premium tax credit is always equal to zero under Section 36B unless a qualified health plan is purchased by a member of the taxpayer’s immediate family through “an Exchange established by a State under section 1311 of [the ACA].”

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It’s the Kennedy Court

There have been a number of recent reports on how and why the Supreme Court moved left this past term.  Two notable pieces were this one in the New York Times and this one by Tom Goldstein at the Scotus Blog.  A common explanation is that the conservative justices have begun to split much more than the liberal ones.  I am not sure that I agree.

In my view, the main explanation is that, in this past term, Justice Kennedy simply voted with the liberals more often than with the conservatives.  If I am right, then there is no elaborate explanation that is necessary.  The results are simply what Justice Kennedy preferred, based presumably on the constellation of cases that arose.

There are different ways to analyze the statistics, but here is the basis of my argument.  (I based my statistics on this page from Scotus Blog.)   There were 19 5-4 decisions this past term.  I excluded 3 of them, because the majority in these cases involved either two conservatives and two liberals, or three liberals and two conservatives.  In those cases, the decision was arguably not based primarily on partisan differences.

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