Halbig and Hammurabi

By Kevin D. Williamson

Sunday, July 27, 2014

In the wake of the Halbig decision, liberals sniffed: Surely, Ezra Klein wrote, the Supreme Court is not going to gut the sublime work of policy poetry that is Obamacare in order to “teach Congress a lesson about grammar.” My friend Dave Weigel posited, absurdly, that conservatives had won a “Leninist victory” in the case, as though Cato were attempting to hasten the revolution like a gaggle of cracked Shining Path fanatics in some miserable, sweaty jungle. Without trespassing too deeply into the turf of the many excellent lawyers whose subtle meditations you may read in these virtual pages, the Halbig decision is simply about the fact that the law says what the law says. Literate people who suffer through Mr. Klein’s prose cannot be surprised by his contempt for the concept of grammar, but law is nothing if not language. The ancients understood something that has been neglected in recent centuries: Grammar is the foundation of logic.

Surely Hammurabi was not the first, but his code is our oldest example of the written law. Somewhere in the penumbras of pre-history, some long-forgotten Promethean genius did humankind a favor that surely ranks up there with the wheel and fire: the written law. It is a simple thing — “simple as a flower, and that’s a complicated thing.”

Hammurabi’s law covers a great deal more than his take on “an eye for an eye,” which was, like our own criminal laws, graded according to the status of the victim — a slave’s eye was not worth what a prince’s eye was. (You think we’ve evolved past that? Consult your local statutes regarding assault on a police officer, or on employees of the New York Metropolitan Transportation Authority, who are practically begging for a bit of battery.) The Hammurabic Code, along with its presumptive predecessors, represented something radical and new in human history. With the law written down — with the law fixed — a man who had committed no transgression no longer had reason to tremble before princes and potentates. If the driver of oxen had been paid his statutory wage, if a man’s contractual obligations had been satisfied, and if his life was unsullied by violations of the law, handily carved upon slabs of igneous rock for all to see and ingest, then that man was, within the limits of his law, free.

Hammurabi never directed his secretary of health and human services to promulgate regulations subsidiary to the code and subject to near-term political necessities — just 282 laws and associated punishments, available for all to see.

Perhaps it is not the case that in the 21st-century United States we can live under something as simple and straightforward as the Code of Hammurabi. But the principle is the same: We write laws down in order that citizens may know what is permissible under the generally promulgated rules of the polity. The writing down of laws was the first step on the road from subject to citizen, and to reverse that is to do violence to more than grammatical propriety, Mr. Klein’s huffery-puffery notwithstanding.

The written law was the first real constraint on the power of kings. An oral tradition is subject to constant on-the-fly revision. Mr. Klein and others of his persuasion would see us return to that primitive state: “Oh, sure, the law says that the IRS can only operate on state-created insurance exchanges, but that isn’t what we” — and who is this we? — “really meant. And besides, things will turn out other than as we desire if we follow the law as written, and who are you, and what is the law, to forbid us our desires?” It is easier to think that way when you believe that you represent a uniquely enlightened point of view, that you are acting in the public interest, and that your political rivals are wicked and ignorant.

A few days ago, I had a depressing conversation with a federal judge who noted her surprise and distaste the first time that a media account of one of her decisions took note of the fact that she had been appointed by such-and-such a president, as though that, and not the law, were the explanation for her decision. She’d never been active in politics, and had never imagined that the party label of the man who appointed her had any bearing on anything she’d done in the courtroom. Perhaps she needed Mr. Weigel to advise her on the question.

There will always be occasions for discretion and interpretation on legal questions, but it is not the case that such discretion should presumptively empower the IRS to do things that the IRS is not legally entitled to do simply because Barack Obama wishes it to be so. If history teaches us anything, it is that a system of law that presumptively sides with political power soon ceases to be any sort of system of law at all. Rather, it becomes a post facto justification for the will to power, an intellectual window dressing on might-makes-right rule.

The matter addressed in Halbig is hardly the Obama administration’s first attempt to circumvent the law as written — see Hobby Lobby, etc. — nor is it the progressives’ only attempt to impose what they imagine to be enlightened ad-hocracy on the American people. The disdain for the letter of the law is complexly intertwined with the progressive managerial imagination: The law, in their view, is not something that limits the ambitions of princes, but something that empowers them to do what they see fit. It is not surprising that conservative concerns about limited government frustrate and befuddle those who see the law in that way. They imagine government to be something like a plasma cutting table, a complex and precise tool that, in the right hands, can reshape the world in desirable, predictable ways. But government is not a complicated tool. It is in fact a simple tool: a bayonet.