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Bench Memos

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Re: Law and Obligation



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I have failed in some respect here: either in making myself clear to Matthew Franck or in understanding him. I think he is taking me to be accusing Roberts of simply having failed to see that Obamacare was intended to create a moral obligation on the part of citizens to buy health insurance, and arguing in response that the law can reasonably be read as not having that intention. That is not my argument. So let me try to clarify what I’m actually saying.

We are considering a legal provision. On one reading of it, it is intended to make the purchase of insurance compulsory and to make its non-purchase unlawful–to create, that is, an obligation on the part of law-abiding citizens to buy insurance. The question before us is: Is there a plausible second reading of this provision under which the law has no such intention? 

My argument is that this question cannot be answered by looking at the “functional” effect of the legal provision, because that examination will exclude exactly what we want to know. It is the proverbial wrongly placed lamppost. If the question we’re trying to answer is “does this legal provision mean to create this particular moral obligation,” looking at the provision’s effects won’t help us.

To revert to the example of murder Franck and I have each discussed: A “functional” analysis of a murder statute couldn’t settle the debate between a man who insists that the statute creates a (supplementary) moral obligation not to kill people and a man who insists that it merely lays out consequences for committing murder. The effects, the outward appearances: All of these would be the same. If the second man insisted that his view is clearly correct because the statute functions in a manner consistent with that view, we would say he was making a logical error. What I’m saying is that Roberts has done the same thing.

One last tangential point: I don’t think that the fact that Republicans insisted that the individual mandate is a tax during the legislative debate softens the force of my argument at all. My claims are fully consistent with the mandate being a tax of a sort, so long as it is not regarded as only a tax. If the Republicans had denied that the mandate was a mandate–if they had said that it did not attempt to make the purchase of insurance compulsory, but merely strongly encourage it–that would be a different matter.



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