Archive for the ‘Government’ Category

Further Reasoning Re the PPACA (Obamacare) Opinion

Saturday, July 14th, 2012

On the Supreme Court website, you can find the docket for this case (the title is National Federation of Independent Business v. Sebelius), which lists all the papers filed with the Court (this word is traditionally capitalized for the Supreme Court). It’s a long list. Oral argument is a dramatic high point, but it is only the tip of the iceberg in terms of the information provided to the Court.

The opinion begins with a “syllabus” by a Court official, the Reporter of Decisions. The syllabus summarizes the background of the case and the main issues resolved in the opinion. Note that there are multiple opinions and various justices have joined in different parts of those opinions. To figure out whether the Court’s has a “majority opinion” on any particular point, you must count how many justices sign (or concur in) a particular opinion part.

The PPACA is a complex law. Fortunately us, the Court focused chiefly at two provisions. The first is the “individual mandate” that requires everyone (with some exceptions) to purchase health insurance meeting various federal requirements or else pay a “shared responsibility payment” (let’s call it the “SRP”) to the federal government. (Note that in the following discussion I am not concerned with the wisdom of the PPACA, only with whether it is a valid enactment. This is (or should be) the Court’s approach as well.)

Before asking whether the individual mandate is a proper exercise of Congressional power, Chief Justice Roberts considers the federal Anti-Injunction Act, a law that prohibits challenging any tax before the challenger has actually paid it. Should the SRP be considered a tax? If so, then any court challenge is premature because no one has yet paid the SRP.

Chief Justice Roberts discusses this issue in part II of his opinion, concluding that the SRP is not a tax for purposes of the Anti-Injunction Act. His reasoning is straightforward: the PPACA contains several provisions that expressly impose taxes but the SRP is called a “penalty” and not a tax. The Chief Justice notes, “[w]here Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally” and “the best evidence of Congress’s intent is the statutory text.” (These statements, it seems to me, reflect a judicial approach to acts of Congress that respects the equal status of the two branches.)

To make sure this issue was fully considered, the Court invited a senior lawyer (a “friend of the Court” or in Latin “amicus”) to submit a brief making the best arguments in favor of applying the Anti-Injunction Act. The amicus suggested that since the PPACA calls for the SRP to be “assessed and collected in the same manner” as taxes, this is evidence that the SRP is a tax. Chief Justice Roberts rejects this argument. To the contrary, he says, this provision actually supports the conclusion that the SRP is not a tax. If it were a tax, there would be no need to direct that it be assessed and collected in the same manner as taxes. It is because it is a penalty (and not a tax) that it makes sense to explain that the procedure for collecting it will be through the taxing authority.

Justices Ginsburg, Sotomayor, Breyer and Kagan agree with the Chief Justice’s conclusion in their separate opinion, and Justices Scalia, Thomas, Kennedy and Alito also agree in their dissent. So this part of the opinion is unanimous in result, if not in reasoning.

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Reasoning as an Aid to Charity During an Election Year

Thursday, July 12th, 2012

During an election season, emotions run high. Citizens are rightly concerned about the important issues at stake. They naturally feel upset when those issues are unfairly characterized by their political adversaries. Those who seek to remain in charity with their fellow-citizens can find it a time of stress.

The United States Supreme Court’s recent decision regarding the Patient Protection and Affordable Care Act (Obamacare) has caused many veins to throb. Pundits have been quick to suggest that the justices (majority or dissent, depending on the pundit’s views) decided the case based on impure motives.

In my class on reasoning, the curriculum usually includes review of a controversial legal opinion. Unfortunately, the PPACA case was decided too late this year to be covered. Approaching a legal opinion from the point of view of legal reasoning — rather than an opportunity for political partisanship — can be an exercise both enlightening and conducive to at least temporary charity.

Here are some general comments about how someone, after taking my class, might approach the opinion.

1. It is a general principle that reasoning in all fields must begin somewhere. In logic, certain basic forms of argument (such as: for each proposition A, either A or not-A is true) must simply be accepted as valid; no more fundamental logical premises are available from which to prove them. Practical reasoning also involves premises that are accepted without proof. If we say, “you should brush your teeth,” we assume our interlocutor shares interests with us (avoiding tooth decay and bad breath). In scientific reasoning, we assume that certain sensory observations are reliable and that instrument readings correlate to physical conditions. In moral reasoning, we typically begin with basic moral principles (the Decalogue, the Sermon on the Mount, the classic Greek virtues, advancing the Revolution, etc.). In theological reasoning, we typically begin by assuming that certain experiences and liturgical practices are reliable indicators of the divine nature and purposes. In each case, someone may refuse to accept our starting points. Before reasoning can resume we must find out what that person’s premises are.

2. One of the fun challenges of reasoning is to discern what premises have been assumed. For example, the argument “law X should be passed” typically draws upon unstated premises about human flourishing, the role of government, the intended effects of the law, and defects in current laws. Bringing those premises to light can clarify the issues, advance debate, and increase charity.

3. Unlike logic (where few deny “either A or not-A”), or science, where few deny that sensory data are generally reliable, or even morals, where few deny the distinction between good and evil (though callow bloggers may adopt this pose), the law is an area in which argument over premises is not only possible, it has been (for the past century or two anyway) common. To greatly oversimplify, a continuum can be drawn between two extremes. On the one hand, someone might say that the Constitution and the laws have been written by the framers of the Constitution and the Congress and the job of the Court is simply to apply those pre-written rules, without discretion. On the other hand, someone might say that the Court has great discretion to consider or ignore the Constitution and laws, which are products of particular times and places, in exercising of its own moral (and common) sense. Both of these extremes are caricatured, and the actual business of judging is much more complicated. But for clarity to emerge we must be open to the idea that the different justices may have different ideas of their proper roles in the Constitutional order.

4. Review of the PPACA decision should begin by recognizing that multiple issues were presented and different groups of justices joined in different parts of multiple opinions. Only after sorting out the different questions posed and the different answers given can we begin to discern the reasoning in the various opinions.

If this subject is of interest to the readers of this blog, I could continue with a more detailed review along the lines sketched above.

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Making Sense and Finding Meaning

Sunday, October 4th, 2009

My intermediate and advanced Greek and Latin classes are largely translation-based. There’s a lot of discussion among Latin teachers about whether that’s a good approach, but much of the dispute is, I think, mired in terminological ambiguity, and at least some of the objections to translation classes don’t entirely apply to what we’re doing. What I’m looking for is emphatically not a mechanical translation according to rigid and externally objective rules (“Render the subjunctive with ‘might’,” “Translate the imperfect with the English progressive,” or the like), but rather the expression of the student’s understanding of each sentence as a whole, in the context of the larger discussion or narrative.

We aren’t there to produce publishable translations: that’s an entirely different game, with different rules. For us, translations are the means to an end: the understanding is the real point of the process, but it’s hard to measure understanding unless it’s expressed somehow. The translations, therefore, are like a scaffold surrounding the real edifice — engagement with the text as a whole: its words, its sounds, and its various levels of meaning. That engagement is hard to pin down, but it allows us to make a genuine human connection with the mind of the author. A detached mechanical “translation”, though, is like a scaffold built around nothing, or the new clothes without the emperor. Even were artificial intelligence able to advance to the point that a computer could produce a flawless rendition of a text into another language, it still would not have achieved what is essential. It will not have understood. It will not have savored the words, grasped the concepts, combined them into larger ideas, applied them to new contexts, or come to a meeting of the minds with the author.
This is not always an easy concept for students to grasp. Some are fretful to get exactly the right wording (as if there were such a thing), but apparently less concerned with understanding the essential meaning. At the beginning of the year, I usually have a few students who make the (to me bizarre) claim, “I translated this sentence, but I don’t understand it.” My response is always some variation on, “If you didn’t make sense of it, you didn’t really translate it.”

We talk about making sense of the passage, but even that turn of phrase may be one of the little arrogances of the modern world. The prevalent modern paradigm suggests that the world is without order or meaning unless we impose it; Christianity, however, presupposes a world informed by its Creator with a consistent meaning that we only occasionally perceive. For us, it would probably be more accurate, and certainly more modest, to talk of finding or discovering the sense in the passage.

Whether we call it “making sense” or “finding sense”, though, it is not just the stuff of language classes. Every discipline is ultimately about finding meaning in and through its subject matter. In language and literature we look for the informing thought behind speech and writing. In history we look to understand the whole complex relationship of individuals and groups through time, with their ideas, movements, and circumstances, and what it all meant for them and what it means for us today. The sciences look to find the rationale in the order of the physical universe, mathematics the meaning of pure number and proportion, and philosophy to find the sense of sense itself. Each discipline has its own methods, its own vocabulary, and its own techniques. Each has its own equivalent of the translation exercise, too — something we do not really for its own sake, but to verify that the student has grasped something larger that cannot be measured directly. But behind those differences of method and process, all of them are about engaging with the underlying meaning. All real learning is. (In that respect it differs from training, which is not really about learning as such, but about acquiring known skills. Both learning and training are essential to a well-rounded human being, but they shouldn’t be confused with one another.)

From a secular point of view, this must seem a rather granular exercise with many dead ends. That each thing should have its own limited kind of meaning, unrelated to every other, seems at least aesthetically unsatisfying; it offers us Eliot’s Waste Land: a “heap of broken images”, pointing nowhere. Language is fractured, and our first great gift of articulate speech clogs and becomes useless.

Our faith offers us something else: we were given the power to name creation — to refer to one thing through or with another — as a way of proclaiming the truth of God, surely, but also, I think, as a kind of hint as to how we should view the whole world. Everything, viewed properly, can be a sign. As Paul says in Romans, “For since the creation of the world God’s invisible qualities—his eternal power and divine nature—have been clearly seen, being understood from what has been made, so that men are without excuse” (1:20, NIV); Alanus ab Insulis (1128-1202) wrote, about 1100 years later, “Every creature in the world is like a picture to us, or a mirror.” Signification itself is transformed and transfigured, sub specie aeternitatis, from a set of chaotic references into a kind of tree, in which the signifiers converge, both attesting the unitary truth of the Lord and endowing every created thing in its turn with a holy function.

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