Thursday, July 9, 2015

What is the law?

Many think that law is simply a clearly written statement of what is or what is not allowed. Many children are brought up by parents who state the rules their children must follow, and that’s that. Their model for law is, perhaps, the Ten Commandments, where the rules are a matter of black and white, purportedly handed down from God. The child is not to question the rules themselves. They mean what the parents say they mean.

Laws in the real world are not like that. They contain words that are subject to interpretation. Even a simple word like “or” has at least two meanings. “A or B” can mean “A or B but not both” or “A or B or both.” When a logician was asked if the baby his wife had just had was a boy or a girl, he replied, correctly, “Yes.”

Over many centuries judges have had to interpret the meaning of laws full of words subject to interpretation. Some of these laws are lengthy statutes consisting of thousands of words. The courts have developed rules of construction to help them in their tasks. These rules themselves are subject to interpretation, but the rules can be applied to themselves to understand what they mean. This world of interpretation, thus, is not black and white but varying shades of grey. Those raised in the artificial environment of black and white rules are uncomfortable with the more difficult reality of grey.

While I know nothing of the child rearing of Boston Globe columnist Jeff Jacoby, his recent editorial criticizing the U.S. Supreme Court’s decision that effectively upheld a key component of what is popularly known as “Obamacare” reflects this desire to live in the artificial world of black and white. He stated in his editorial, “Since the law explicitly restricts subsidies to ‘an exchange established by the state,’ the answer should be obvious. . . . [Justice Roberts] turned the straightforward meaning on its head. ‘An exchange established by the state,' he wrote, also means an exchange not established by the state.” Jacoby concluded, “The rule of law . . . is corroded by judges who act like superlegislators — never more so than when torturing the plain words of the law, forcing them to say what they don’t mean.”

In response, I wrote a letter to the editor which was published by the Globe (online on July 8, 2015, and in print the following day). This is the letter:

Courts must look at statute as a whole

JEFF JACOBY ignored one of the fundamental principles of statutory interpretation when he concluded that the Supreme Court distorted the law in the Obamacare subsidy case, King v. Burwell (“Torturing the law,” Opinion, July 2). This principle, often repeated, is that courts must interpret or construe statutes by looking at the statute as a whole and not in isolated parts. The principle, also known as a rule of construction, empowers courts to disregard single sentences if they conflict with the purpose and intent of the whole statute.

The purpose of this rule is to give effect to legislation, not to override it. It is Jacoby who ignores this rule when he simplistically concludes that it is the Supreme Court that ignored the law.

John L. Hodge, Jamaica Plain
The writer is a retired lawyer.