Posts

Tortured Interpretation

I don't have much to add directly to what Daniel Larison is saying here in response to Matt Yglesias' glib dismissal of Tim Lee's complaint about the unpopularity of "[t]he general point that violating the constitution is wrong even if … Read More

By / November 9, 2007

I don't have much to add directly to what Daniel Larison is saying here in response to Matt Yglesias' glib dismissal of Tim Lee's complaint about the unpopularity of "[t]he general point that violating the constitution is wrong even if it leads to results we like" (as Larison says, "ah, blogging"). The issue in dispute is whether the Supreme Court makes use of a tortured interpretation of the public use clause of the 5th Amendment in ruling, for example, that bulldozing the homes of Suzette Kelo and her co-plaintiffs to make way for a private condominium development is permissible under eminent domain. (See here for background and my biased take on the matter).

If Daniel and I are reading Matt correctly, he is claiming that it is the libertarian understanding of public use that tortures the text of the 5th Amendment, to which I reply by paraphrasing my rhetorical gambit in that old YDN piece, namely, would tearing down Matthew Yglesias' house, without his consent, to clear space for a Starbucks be justifiable as a public use taking? What if that Starbucks were certain to be a boon to the local economy? The Kelo case bears striking structural similarities to Raich v. Gonzales, in which the Supreme Court empowered federal law enforcement to shut down state-sanctioned medical marijuana in-state use and distribution by citing the interstate commerce clause. (Nick Gillespie neatly encapsulated the subtext of the Raich ruling as "Supremes to Pot-Smoking Pain-Sufferers: Fuck You".) In all seriousness, I'd like to hear Matt's take on the SCOTUS majority's interpretation of the interstate commerce clause, and if he finds it wanting, how he squares that judgment with his views on public use.

My point in posting here, however, is not to take up these narrow libertarian concerns per se, but rather to object to Matt's claims that "where the constitution is really ambiguity-free then people are happy to abide by provisions they don't approve of," and that libertarian-minded people…could probably devise ‘tortured' readings of [a hypothetical universal healthcare clause as] indicating that ‘after all just go to an emergency room' plus the status quo is good enough." I do not suggest that libertarians have some unique virtue of interpretive objectivity, but I think Matt is glossing over a huge spectrum of ambiguity values (if you will) that stand in between "absolutely unequivocal" and "really rather up for debate," and that between those extremes, we should not be surprised to find partisans grasping at the flimsiest straws to show why their policy preferences do not fly in the face of the provisions of a constitution or legal code. To cite an example Matt and I would likely agree about, the movement conservative line that there are reasonable differences of opinion about whether waterboarding is torture — regardless of the long history of the practice, in which it was never regarded as anything but torture, not to mention the unified opinion of those of who have undergone it — rests, ultimately on wishful thinking. Nevertheless, neither the relevant statutes nor the dictionary definition specifically mention waterboarding, so here we are.

 Likewise with certain progressive — in this case in the worst sense of the term — understandings of the flexibility of Constitutional impediments to government coercion of private citizens. True enough, if the 5th Amendment had an addendum reading something like, "and this provision specifically bars condo developers from forcing involuntary confiscations of property," the Kelo case would not have ever been up for debate. Instead, the 5th Amendment merely restricts eminent domain to public uses. If you want to exercise eminent domain badly enough, you can talk yourself into believing your particular pet cause falls under some precissification of ‘public use' (which, it does). But  you'll be doing violence to the plain meaning of the Constitution all the same.

Tagged with: