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March 30th, 2017

Insight

The decline of language

Paul Greenberg

By Paul Greenberg

Published March 18, 2015

    The decline of language

"In our time, political speech and writing are largely the defense of the indefensible. ... The inflated style itself is a kind of euphemism. A mass of Latin words falls upon the facts like soft snow, blurring the outline and covering up all the details. The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink."

--George Orwell, "Politics and the English Language"

How interpret a law to mean the opposite of what it says? That's no big problem for lawyers; it's more their specialty. For why would you need sophisticated legal scholars if the law were clear without their services?

Current case in point: the debate before the Supreme Court of the United States over the meaning of the seemingly simple statute setting up state insurance exchanges under the Affordable Care Act, better known as Obamacare. The law repeatedly says that government subsidies are limited to those insurance exchanges "established by the State." As opposed to those established by the federal government. Never mind, the federal government's legal eagles explained recently, the law was really intended to subsidize federal insurance exchanges. After all, they're only four little words. Why not just pretend they're not there?

Unfortunately, a too-talkative adviser to the administration responsible for framing the law -- the now notorious Jonathan Gruber -- was caught on tape saying the law he'd designed was only supposed to subsidize those state exchanges. That way, the states would have an incentive to set them up. The trouble is that not enough states did that to make the program likely to hit its enrollment goals.

The solution? Just ignore the plain words of the law -- even if it repeatedly refers to those subsidies being limited to exchanges "established by the State." Law, shmaw. Why let mere words stand in the way of what the feds want, namely subsidies for their own insurance exchanges?

To quote Lewis Carroll's "Through the Looking-Glass":

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master -- that's all."

If the federal government is to be master of the law's meaning, why quibble over mere words? And so the law of the land is reduced to whatever the administration wants it to be. Any questions? If so, keep them to yourself. Big Brother knows best.

Here we have the essence of arbitrary government, the kind based not on the rule of law but whatever the regime says the law means, even if it must ignore what the law actually says. Welcome to George Orwell's "1984," which never seems to grow irrelevant. "War is peace. Freedom is slavery. Ignorance is strength." And the law is whatever Big Brother says it is.

The use-and-abuse of legal language is not without its comic aspects. In the course of legal arguments before the Supreme Court of the United States back in 2009, distinguished counsel for the government (Deputy Solicitor Malcolm Stewart) told the court that the government might have to ban the publication of certain books during political campaigns, no matter what the First Amendment says about freedom of the press.

Why? In order to follow the constraints on freedom of expression embodied in the campaign-finance law known as the McCain-Feingold Act, a position that seemed to shock even the leftier members of the court. Much to their credit.

But to hear counsel for the government explain it, in order to uphold free elections, freedom of speech would have to be curtailed. Freedom isn't free, you know. The Hon. Humpty-Dumpty, Esq., would understand.

So would Joseph Heller, who wrote "Catch-22," a book full of such paradoxes. ("He'll be back right after lunch. Then you'll have to go right out and wait for him in front till he leaves for dinner. Major Major never sees anyone in his office while he's in his office.") And insurance exchanges established by the federal government are insurance exchanges established by state governments. As will be obvious to any well-trained mind.

In the end, the court's decision in that case, Citizens United, marked a new advance for freedom of speech and the right to exercise it. Not to mention the simple meaning of words.

Happily, there are some arguments that not all justices of the Supreme Court are prepared to swallow. Which should give us hope that the court may yet uphold the simple meaning of words in this case (King v. Burwell), too.

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Paul Greenberg is the Pulitzer-winning editorial page editor of the Arkansas Democrat-Gazette.

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