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.