I already talked here and here about the issue of gay marriage, but I felt the need to add a few words on the historic occasion of the Supreme Court's decision to overturn gay marriage bans.
My initial thought was: I can't believe it, that's awesome. I had not thought they would, since so many on the Supreme Court are conservative, though yesterday's ACA decision certainly gave me a bit of hope.
I later thought, however, that it's only a small piece of the puzzle. Gay marriage and the ACA are tiny pieces of a larger social justice agenda, but they're pieces that had an incredibly large voice. They were things that, even though the Republicans fought against them mercilessly, seemed like they were destined to pass, that the movement in America is toward those avenues of equality, and any struggle against them was just a token gesture.
The real problem behind all of it is a more nebulous quagmire of wealthism, a need to pit the middle class against the lower class so that neither can rise up against the upper class.
and I'm a bit afraid... afraid that when these two issues are considered resolved by most people, they'll give up on politics, they'll leave politics in the hands of those who have effectively limited the right to free speech to the wealthiest corporations, who have denied the right to vote to millions, who have reworked voting districts so that their political party is the dominant one in Washington even when they represent the smaller number of citizens.
Those of us who still have the right to vote must stand up to these measures, must recognize that the victory at the Supreme Court today is just the first little skirmish in a much longer and war, and must train and arm and mobilize to fight that war, not with guns but with votes and words and capital.
Voting for Bernie Sanders in the general election would help, but it's not enough. We need constitutional amendments to fight gerrymandering and voter restriction and especially, first and foremost, Citizens United.
Friday, June 26, 2015
Thursday, June 25, 2015
Interpreting the law
I got in an argument with one of my coworkers today over the Obamacare ruling issued today. For those who have somehow kept their heads in the sand about it, the ruling is basically this: The Affordable Care Act offers tax credits for those who enrolled in exchanges - some of which are established by states, and some of which by the Secretary of Health and Human Services. However, because the way the law is worded, it appears to only specify that those who enrolled in exchanges established by the state should get those tax credits, and everyone else is out of luck.
Obama argued that the law was clearly meant to include those who enrolled in secretary-established exchanges, while his opposition argued that if that's what the law meant, it would be in the law.
My colleague argued that as well - that we have to read the law exactly as it is written.
So I asked him this:
Let's say I take this toy football off your desk, and I keep it. You interpret my action as theft as you understand the law, and call the cops. They come, take your statement and mine, and based on their understanding of the law, they arrest me. They pass the case to the district attorney, who again has to make an interpretation of the law to decide if it's reasonable to try the case in a court, as well as ensuring they have enough evidence. When it gets to court, our two lawyers will get up and argue about the case - and their argument will have to sway the judge and jury to one side or the other. The jury won't simply be looking at the evidence - any idiot could see that I took the football - but they will have to decide whether my taking of the football counts as theft under the law. They have to make that interpretation based on the information they bring with them to court and the arguments of the lawyers.
As such, the law is always an interpretation. Justice Scalia writes in his dissent of the decision that, "You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it" (Source, pg 28). But, if that were true, we wouldn't need a Supreme Court for any matter, let alone this one. If language is always black and white, if it is always concrete, unambiguous, certain... then literally everyone will understand it in a single reading.
Language does not enjoy that luxury. The reason for this is that every word has a cornucopia of meanings attached to it - its denotation (the supposed "literal meaning" of a word) and its connotations (all the other things the word has attached).
But the meaning of the word is not created by a computer, it is not something established in 1s and 0s. It takes its shape naturally out of the usage of people in normal conversation. Take, for example, this list of 20 words that used to have completely different meanings. Or, for a more personal example, take the time I horribly fumbled on a word when describing someone who I thought was acting irrationally and taking things to unreasonable extremes: I said she was "hysterical." Now, by modern definitions of the word, I was exactly right - and those modern definitions were the only ones that had crossed my mind at the time (I'd never intentionally use that as a sexist slight). I hadn't even known the gender of the person I was describing at the time, only a vague story. But, several people pounced on my word choice, and while I disagree with the comments they made from it (people are too quick to bully and belittle each other online), they were right in that it's a word I shouldn't have used, because of the various connotations the word holds, which used to be its denotations. (For clarity - people used to think that women went insane because of "hysteria," which was caused by the woman's reproductive system. Its root word is "hustera," which is the Greek word for "womb," and where we get the word "hysterectomy." In its earliest uses, hysteria always applied to women, and was still a psychiatric diagnosis well into the 19th century.)
I have since tried to remove the word from my internal dictionary.
Now that I mention dictionary, perhaps you might not be an English Major/degree-holder, and thus you might think that the dictionary defines those words for us, that all the writers of the law have to do is consult the dictionary and, if anyone claims that their law means something else, they can simply show the passage of the dictionary and clarify that meaning. The problem, though, is that that's not what the dictionary is. When a dictionary is written, the authors of it don't sit down and say "I think this word should mean this..." and jot down a definition that will hold as law for the rest of time. Rather, they consult texts wherein the word is used, and try to puzzle out from those texts what that word means. (For historical dictionaries that also study the etymology of a word, they consult much older texts and also attempt to trace how the word's meaning has changed.) That is to say, they are describing the words, rather than prescribing them.
As such, the meanings are never certain; the dictionary simply provides a ballpark approximation of the meaning, which can help those who have never heard the word before understand what was meant by it.
Thus, every reading is an interpretation of meaning... you're interpreting my meaning right now. If I write clearly, you can get a decent approximation of what I mean, but there may be places even now where, if we compared your interpretation with my intent, we might differ.
And thus the court. We need courts to interpret law for us precisely because we live in a hierarchical society where we write, enforce, and judge laws to structure our society and help keep us all from devouring each other. There's never a time when the law isn't being interpreted, and each time a law comes before a judge or jury, that judge has to interpret how it's being applied. Even this victory won't settle Obamacare - but it might help get people to stop fighting against it so much.
Now, you may say that all of this is great, but the language of the law says "state" and not "state or secretary" - and thus there's nothing to be interpreted, no word that might be ambiguous. In that case, we come to a choice - do we interpret the law using a philosophical lens like textualism that says we can only read it as it's written (which is still an interpretation of that writing, no matter what people might generally accept as the meaning of the words), or through any one of a number of other philosophical lenses like structuralism, which calls for an interpretation in the larger context of the law? That's really what this case hinges upon, whether to interpret via structuralism or via textualism. Liberals have benefited from textualism plenty, as conservatives have benefited from structuralism. One holds no merits over the other on that or any other metric. They're simply the lens through which we read.
In my own opinion, though, textualism is ridiculous precisely because it is an impossible ideal.
Obama argued that the law was clearly meant to include those who enrolled in secretary-established exchanges, while his opposition argued that if that's what the law meant, it would be in the law.
My colleague argued that as well - that we have to read the law exactly as it is written.
So I asked him this:
Let's say I take this toy football off your desk, and I keep it. You interpret my action as theft as you understand the law, and call the cops. They come, take your statement and mine, and based on their understanding of the law, they arrest me. They pass the case to the district attorney, who again has to make an interpretation of the law to decide if it's reasonable to try the case in a court, as well as ensuring they have enough evidence. When it gets to court, our two lawyers will get up and argue about the case - and their argument will have to sway the judge and jury to one side or the other. The jury won't simply be looking at the evidence - any idiot could see that I took the football - but they will have to decide whether my taking of the football counts as theft under the law. They have to make that interpretation based on the information they bring with them to court and the arguments of the lawyers.
As such, the law is always an interpretation. Justice Scalia writes in his dissent of the decision that, "You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it" (Source, pg 28). But, if that were true, we wouldn't need a Supreme Court for any matter, let alone this one. If language is always black and white, if it is always concrete, unambiguous, certain... then literally everyone will understand it in a single reading.
Language does not enjoy that luxury. The reason for this is that every word has a cornucopia of meanings attached to it - its denotation (the supposed "literal meaning" of a word) and its connotations (all the other things the word has attached).
But the meaning of the word is not created by a computer, it is not something established in 1s and 0s. It takes its shape naturally out of the usage of people in normal conversation. Take, for example, this list of 20 words that used to have completely different meanings. Or, for a more personal example, take the time I horribly fumbled on a word when describing someone who I thought was acting irrationally and taking things to unreasonable extremes: I said she was "hysterical." Now, by modern definitions of the word, I was exactly right - and those modern definitions were the only ones that had crossed my mind at the time (I'd never intentionally use that as a sexist slight). I hadn't even known the gender of the person I was describing at the time, only a vague story. But, several people pounced on my word choice, and while I disagree with the comments they made from it (people are too quick to bully and belittle each other online), they were right in that it's a word I shouldn't have used, because of the various connotations the word holds, which used to be its denotations. (For clarity - people used to think that women went insane because of "hysteria," which was caused by the woman's reproductive system. Its root word is "hustera," which is the Greek word for "womb," and where we get the word "hysterectomy." In its earliest uses, hysteria always applied to women, and was still a psychiatric diagnosis well into the 19th century.)
I have since tried to remove the word from my internal dictionary.
Now that I mention dictionary, perhaps you might not be an English Major/degree-holder, and thus you might think that the dictionary defines those words for us, that all the writers of the law have to do is consult the dictionary and, if anyone claims that their law means something else, they can simply show the passage of the dictionary and clarify that meaning. The problem, though, is that that's not what the dictionary is. When a dictionary is written, the authors of it don't sit down and say "I think this word should mean this..." and jot down a definition that will hold as law for the rest of time. Rather, they consult texts wherein the word is used, and try to puzzle out from those texts what that word means. (For historical dictionaries that also study the etymology of a word, they consult much older texts and also attempt to trace how the word's meaning has changed.) That is to say, they are describing the words, rather than prescribing them.
As such, the meanings are never certain; the dictionary simply provides a ballpark approximation of the meaning, which can help those who have never heard the word before understand what was meant by it.
Thus, every reading is an interpretation of meaning... you're interpreting my meaning right now. If I write clearly, you can get a decent approximation of what I mean, but there may be places even now where, if we compared your interpretation with my intent, we might differ.
And thus the court. We need courts to interpret law for us precisely because we live in a hierarchical society where we write, enforce, and judge laws to structure our society and help keep us all from devouring each other. There's never a time when the law isn't being interpreted, and each time a law comes before a judge or jury, that judge has to interpret how it's being applied. Even this victory won't settle Obamacare - but it might help get people to stop fighting against it so much.
Now, you may say that all of this is great, but the language of the law says "state" and not "state or secretary" - and thus there's nothing to be interpreted, no word that might be ambiguous. In that case, we come to a choice - do we interpret the law using a philosophical lens like textualism that says we can only read it as it's written (which is still an interpretation of that writing, no matter what people might generally accept as the meaning of the words), or through any one of a number of other philosophical lenses like structuralism, which calls for an interpretation in the larger context of the law? That's really what this case hinges upon, whether to interpret via structuralism or via textualism. Liberals have benefited from textualism plenty, as conservatives have benefited from structuralism. One holds no merits over the other on that or any other metric. They're simply the lens through which we read.
In my own opinion, though, textualism is ridiculous precisely because it is an impossible ideal.
Subscribe to:
Posts (Atom)