by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Without trespassing too deeply into the turf of the many excellent lawyers whose subtle meditations you may read in these virtual pages, the Halbig decision is simply about the fact that the law says what the law says. Literate people who suffer through Mr. [Ezra] Klein’s prose cannot be surprised by his contempt for the concept of grammar, but law is nothing if not language. The ancients understood something that has been neglected in recent centuries: Grammar is the foundation of logic. …
… Perhaps it is not the case that in the 21st-century United States we can live under something as simple and straightforward as the Code of Hammurabi. But the principle is the same: We write laws down in order that citizens may know what is permissible under the generally promulgated rules of the polity. The writing down of laws was the first step on the road from subject to citizen, and to reverse that is to do violence to more than grammatical propriety, Mr. Klein’s huffery-puffery notwithstanding.
The written law was the first real constraint on the power of kings. An oral tradition is subject to constant on-the-fly revision. Mr. Klein and others of his persuasion would see us return to that primitive state: “Oh, sure, the law says that the IRS can only operate on state-created insurance exchanges, but that isn’t what we” — and who is this we? — “really meant. And besides, things will turn out other than as we desire if we follow the law as written, and who are you, and what is the law, to forbid us our desires?” It is easier to think that way when you believe that you represent a uniquely enlightened point of view, that you are acting in the public interest, and that your political rivals are wicked and ignorant.