Original Intent, Original Meaning, And Obamacare

I’ve written several times about two contrasting versions of originalism, “original intent” vs. “original meaning,” for the first time here:

An overly simple (but I hope not inaccurate) way of illustrating this sometimes elusive distinction is to look at the debate over how to interpret the 8th Amendment’s ban on cruel and unusual punishment. An original intent interpretation would say that the ban was limited to the specific punishments that those who wrote and then approved the Amendment in fact thought were cruel and unusual (you can see the problem already of determining a collective intention). An original meaning interpretation would also rely on historical evidence, but rather than asking what punishments the framers (for lack of a better term) had in mind it would examine the contemporary understanding of the words “cruel” and “unusual.” On this view, a particular punishment might well be unconstitutional even if the framers never considered it, so long as it fell within 18th century (not our) understanding of what those words mean.

With that distinction in mind, consider one of the many … let’s call them oddities of the liberal view of how in King v. Burwell the Supreme Court should (and the liberal justices no doubt will) interpret the Obamacare’s plain text requirement that federal subsidies should be limited to those who buy insurance on an exchange created by a state.

The liberal view here is a hard version of original intent: the Court’s interpretation of that requirement should be governed by what the Congress intended rather than by the meaning of the words in the statute (although sometimes that insistence seems to verge into what the Congress should have intended). To liberals, in short, the meaning of the statute is fixed.

What makes this view odd, of course, is that liberals also famously proclaim that the meaning of the requirements in the Constitution is not fixed; those meanings can change over time because the Constitution is a “living” document that should be interpreted with reference to our ever evolving (ever leftward) values and needs, not the intentions (whatever they were) of the long dead white men who wrote and approved that old text. And what makes this oddity particularly vivid in the debate over Obamacare is that liberals are demanding that the Court defer to Congressional intent even as they react in horror and anger to any suggestion that the best (maybe the only) way for the Court to do that is to send the legislative mess back to Congress for a do-over.

The Constitution, to liberals, is written on sand constantly rearranged by the tides of public opinion. But Obamacare, that’s a horse of a different color. The meaning of its provisions — no matter how, murky, opaque, or contradictory — was fixed for all time in the 110th Congress. Allowing some later Congress to tinker with its implementation of Obama’s handiwork would be as sacrilegious as allowing mere mortals to rewrite the 10 Commandments that God Himself inscribed on the stone tablets.

It turns out that liberals don’t really believe as a matter of principle that the Court, with its nine appointed justices, should defer to the Congress in interpreting legislation. They believe it should defer only to the 110th Congress, which no doubt by coincidence just happens to be last one they controlled.

Blacks Over-Represented On University Of Oklahoma …

… football and basketball teams.

At the University of Oklahoma, Inside Higher Ed points out today, “Black men make up 61 percent of Oklahoma’s basketball and football teams, but only 2.7 percent of the university’s student population.”

That shocking lack of “diversity” was pointed out in an article, “About Time,” attributing a good part of the racial strife at OU to the fact that the university has only now moved to hire “a vice president to oversee diversity and inclusion efforts on campus … a position that already exists in some form at hundreds of other colleges.”

The article describes at some length the duties of the new “diversity” czar.

“The vice president for the university community position will have oversight over all diversity programs within the university, including admissions,” [University President David Boren’s press secretary, Corbin] Wallace said. “The vice president will also be kept completely informed by the Office of Student Affairs of all activities aimed at making campus life more inclusive. The vice president will also work with the president and with the deans to broaden the pool of applicants for faculty and staff positions.”

Note, however, that one “disparity” in need of correcting that was not mentioned is lack of “diversity” on the football and basketball teams.  Will new Vice President for Diversity, Inclusion, Equity, etc., etc., move aggressively to recruit more Asians and whites for these (and other?) athletic teams, since those teams, despite their successes on the field, are no doubt suffering all the ill-effects that the lack of “diversity” inflicts on all educational enterprises?

Discriminating minds want to know.

Our Constitutional Lawyer-In-Chief Speaks Out

President Obama, whom some may recall was the editor of the Harvard Law Review and a professor (or at least lecturer) of constitutional law at the University of Chicago, has applauded the University of Oklahoma’s expelling two students and disbanding their fraternity after fraternity members were captured on a video singing a racist song. Many […]

Don’t Think Of “Elephant”

You’ve all  heard of the thought experiment involving the command, “Don’t let the thought of an elephant cross you mind, however fleetingly.” The point, of course, is to demonstrate that you can’t consciously not think of something without thinking of it. An unwittingly hilarious editorial in the Washington Post this morning brings that experiment, and […]

Two Key Points Re The Israeli Election

From CNN: 1. Israeli voters — especially on the right — have been skeptical that Obama has their best interests at heart. This point was underscored in a recent poll that asked Israelis recently if they believed President Obama would agree to a deal that Israeli officials considered harmful to Israel’s security. Of those that responded, 61% said […]

The Clintons In Haiti

From a Washington Post article on what Hillary, as Secretary of State, and Bill, named head of Haiti relief efforts by the UN, have done … and not done in Haiti: Clinton supporters also point out that their successes have come amid Haiti’s chaotic political situation — parliament is not functioning, and President Michel Martelly, […]

Democrats On Record Destruction: Who Cares?

“Few Democrats,” according to the Washington Post this morning, “believe that the revelations about [Hillary Clinton’s] un­or­tho­dox e-mail practices as secretary of state are a substantive issue that would damage Clinton with voters, and many said she performed adequately in a Tuesday news conference defending herself.” I suspect the Post is right. Democrats have shown a remarkable ability […]

Obamacare Defenders’ Call For Deference To Congressional Intent: Hypocrisy Or Mere Inconsistency?

The Profundity Of Eugene Robinson

Have You Received A Thank-You Note From The Clinton Foundation?

Surprise! The ACLU Defends The First Amendment!

A Deeply Disappointing Douthat On King V. Burwell

Hillary And The IRS: Birds Of A Feather?

Dog Bites Man: More Administration Lying

One Looming Political Question Anwered!

Liberalism Continues To Abandon Its Past Principles

Forget The Crusades, Etc. Obama Himself Uses Christ To Justify A Lie