Hallowed Secularism

7/1/2015—John McGinnis, Professor of Constitutional Law at Northwestern Law School, and the author of the book, Originalism and the Good Constitution, wrote a piece last week in City Journal commenting on Chief Justice John Roberts decision in King v. Burwell. Based in part on the work of St. John's law professor Mark Movsesian, McGinnis criticized the method of statutory interpretation that allowed Chief Justice Roberts, and the majority, to uphold subsidies on the federal Obamacare website despite language in the statute suggesting that such subsidies are only available on websites created by the states. Chief Justice Roberts was using a method of statutory interpretation that looks to the purpose of the statute and adjusts interpretation accordingly.

Now, one can criticize Chief Justice Roberts on the ground that he got the purpose of the statute wrong or even that the hodgepodge of the Obamacare statute should not be considered to have a purpose.

But McGinnis does not rest with arguing that Robert's got this particular instance of statutory interpretation wrong. McGinnis argues more generally, relying here on Professor Movsesian, that since federal legislation "is a product of 535 legislators plus the president" interpretation by purpose is inappropriate for a statute: "It's hard to distill an overriding intent or purpose from such a collection of wills… "

McGinnis and Movsesian seem very close here to denying the intelligibility of collective work. For them, there is no rationality, there is only will. They have been infected by the ideology of the market, in which people have desires and nothing more can really be said about them. The person with whom they may be said to be in agreement is Margaret Thatcher, who famously said "there is no such thing as society. There are individual men and women, and there are families."

In keeping with the spirit of individualism, McGinnis judges methods of statutory interpretation by how much they favor the ends of progressives, as opposed to those of conservatives. But there is much more at stake in the denial of intelligibility than the outcome of this or that political issue.