26 June 2015

Mending Words

He moves in darkness as it seems to me,
Not of woods only and the shade of trees.
He will not go behind his father’s saying,
And he likes having thought of it so well
He says again, "Good fences make good neighbors."

Robert Frost, "Mending Wall" (1914)

Are fences unambiguously good? Or do we have a writing "problem" here?

  • Someone else has discovered that books don't get adequate fact-checking by publishers. Well, some books don't: The problem is much worse at conglomerate publishers who do not maintain subject-area expertise in staffs, and emphasize managerial efficiency in the form of minimizing staffing costs. Proper fact checking, by its nature, is inefficient and seems quite costly; the paradox that only specialty publishers and imprints, and some university-affiliated presses — those publishers operating on the most-fragile economics — seem to engage in it in anything approaching a systematic fashion is rather disturbing, but not all that surprising once one actually reads an E&O ("media perils") insurance policy. Besides, it would close off an entire subsector of books to fact-check and warrant-check them: Ideological rants (mostly those on the right these days, but the left is far from immune). It's one thing to determine that a particular stated fact in a written work is "correct"; it's another thing entirely to see how that fact provides a warrant for a conclusion drawn from it, especially in an ideologically oriented work.
  • All of which leads to the two big-headline (and two non-big-headline) decisions from the Supreme Court yesterday and today. There is actually a common thread among King v. Burwell, No. [20]14–114 (the Affordable Care Act allows tax deductions in states that choose to implement the program via a federal exchange rather than directly operating their own exchanges), Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., No. [20]13–1371 (the Fair Housing Act allows attacks on housing policies that have the effect of discriminating, not just those with discriminatory mechanisms or intent), and Johnson v. US, No. [20]13–7120 (the "residual clause" of the Armed Career Criminal Act cannot be used to increase a sentence because it is unconstitutionally vague):

    Bad writing.

    Not of the opinions, but of the underlying statutes.

    Some of the bad writing is structural in nature, such as the silly failure in the Affordable Care Act to define "exchange" to include both state-run and federally-run-under-state-authorization-for-that-state exchanges; some of the bad writing is more subtle, in the form of almost-intentional vagueness to avoid loopholes exploited by "bad people" (Johnson) or "good people" (Texas Housing), neither of whom can tell what the law actually means in the specific contexts facing them all that easily. The common thread in the legislative histories of all three laws is that the particular language in question came in committee markups — the equivalent of smoke-filled back-room negotiations. What this says about the relationship between legislative process and legislative competence is rather disturbing... and not all that surprising in the face of the fourth opinion from the last two days, which is ultimately the argument that the time for all deliberate speed in establishing civil rights for yet another disfavored group has come and gone, and that the individual states have dragged their feet too long. Not just since Windsor, but since Lawrence (at the latest).

    In short, all four decisions are — at their core — findings of legislative malpractice. That's not surprising: Human beings dominate legislatures. Human beings make mistakes. The real problem is that human beings aren't all that good about acknowledging their mistakes... or restructuring the way they do things to minimize them in the future after they're pointed out. It's not that legislatures need to be dumped (the alternatives are worse): It's that they need to act like legislatures and not self-aggrandizing clubs, and have the humility to run their high-concept language past good writers (admittedly, that will exclude most lawyers). I understand Chief Justice Roberts' lament in Obergefell (the "gay marriage" case), which essentially boils down to reluctance to tell the legislatures that their abrogation of duty is not acceptable... but do not defer to it an awful lot, because that's the essential function of courts in a constitutional system. Telling a legislature — federal or state — that "your paper was either flawed or not turned in on time" is not an improper extension of the judiciary into the legislative function! And the contrast with his overly diplomatic criticism of bad writing yesterday in King is rather important to understanding all four decisions — not just his own opinions, but the panoply across the Court.

  • None of which is all that surprising, when even Psychology Today admits that increasing American antiintellectualism is a problem. All you needed to do to see that was attend a suburban or exurban public high school... in the seventies. Or even ponder the second-order implications of Friday Night Lights and Fame and their popularity. Of course, "ponder the second-order implications" is rather intellectual in nature, so perhaps — just perhaps — that is expecting rather too much.

And so, with all of that in mind, perhaps we've got some mending to do. Not of walls, but of gates, and gaps, and words.