As with the English Civil War, our own divides will not be resolved intellectually but through politics.
For its lay audience City Journal asked me to explain the King v. Burwell decision, which permitted federal exchanges under the Affordable Care Act to receive subsidies. Within its brief compass, I made two points.
First, I suggested, contrary to some conservative commentators, that the majority opinion did not demonstrate that Chief Justice Roberts was unprincipled but that instead the decision followed from a principled purposivist theory of statutory interpretation. I showed why the theory was wrong: like Mike Rappaport, I believe the meaning of the provision was clear and neither purposivist nor intentionalist interpretation should be allowed to defeat a clear meaning. This analysis of Roberts’ opinion comports with my more general view that four justices labeled conservatives are often fractured, because they are more legalists than ideologues, whose different interpretive methods lead to different results that are sound under their principles even when the principles are unsound.
Second, I noted that the effects of purposive interpretation are generally friendly to progressivism because it allows judges to choose overriding purposes that advance progressive goals that were not written into law. But let me be clear that any aid that purposivism gives to progressivism is not a reason to reject purposivism, just an effect of that interpretive method.
Here is an analogy. Mike Rappaport and I have given extensive reasons to be an originalist in Originalism and the Good Constitution. They transcend, as they should, ideology or partisanship. None of them concern creating an obstacle to progressivism. But there is no doubt that originalism is less friendly to progressivism in our era than is living constitutionalism in our era.
The effects of interpretive methods on political results are also historically contingent. It is the nature of progressive legislation that it tends to make more discretionary and abstract modes of interpretation, whether constitutional or statutory, lean to left. Progressives more often than libertarians or conservatives want to replace market and other decentralized mechanisms of norm- creation with top-down social ordering. Permitting judges to interpret statutes broadly according to their most abstract purposes or intent advances that enterprise.
It was not always the case that this method tended to advance progressivism any more than did non-originalist methods of constitutional interpretation. The famous 19th century case of Church of the Holy Trinity v. United States is a case in point. There the Supreme Court interpreted clear language that forbade immigrants “to perform labor or services of any kind” in the United States to nevertheless permit foreign clergyman to be employed. The Court thought it impossible that Congress would have wanted to exclude clergymen.
One of the reasons for attributing this will to Congress has become notorious: the Court said that the United States was a Christian nation. Thus, when a world existed where there was a plausible consensus about legislatively embraced traditions, purposive and indeed intentionalist interpretation could advance conservatism. But that fact does not make Holy Trinity any more legally sound than King v. Burwell.