I don’t usually say much here about politics. But because I’ve already written about the philosophical implications of the Hobby Lobby case, I figure I should also address the most recent ACA ruling. For the typical conservative response to the latter may, at first glance, seem to contradict its response to the former. After all, “Hobby Lobby can have religious freedom” and “Congress cannot have intentions” at first sight translates into “Corporations are persons, governments are not”–a position, alas, no more coherent than its contrary. If collective action is possible, shouldn’t it be possible in all cases?
I don’t think the conservative position necessarily entails a contradiction, but it does, again, seem to me that conservatives aren’t doing a very good job defending themselves against the charge. Consider some of the reasons conservatives give for the impossibility of Congressional intentions:
More generally, what Arrow showed is that group choice (aggregation) is not like individual choice.
Suppose that a person is rational and that we observe their choices. After some time we will come to understand their choices in terms of their underlying preferences (assume stability–this is a thought experiment). We will be able to say, “Ah, I see what this person wants. I understand now why they are choosing in the way that they do. If I were them, I would choose in the same way.”
Arrow showed that when a group chooses, there are no underlying preferences to uncover–not even in theory. In one sense, the theorem is trivial. We know or should always have known that a group doesn’t have preferences anymore than a group smiles. What Arrow showed, however, is that without invoking special cases we can’t even rationalize group choices as if leviathan had preferences. Put differently, the only leviathan that rationalizes group choice has the preferences of a madman.
A nice result, in theory–indeed the mathematics behind it is well worth looking into. But when it comes to practical application, it has two gaping holes, neither of which should come as a surprise:
- Individuals persons are not entirely rational, and not only are their preferences unstable, but they are only sometimes even coherent. Having “the preferences of a madman” is not particular to groups.
- Corporate action is a kind of group action, and it can be rationalized just as easily as individual action. Groups need not always have “the preferences of a madman.”
So if Congressional intentions are impossible, it cannot be a result of the nature of group choice: reasonable Republics are not less possible than reasonable philosophers. Rather, it must have something to do with how Congress, in particular, makes decisions. To make explicit the allusion to Plato, it will have something to do with how democracy really means the rule of that thousand-headed Hydra, the passions.
How does Congress make its decisions?
Consider a king–he need not even be mad; perhaps he seeks a kind of democracy–who gives the following order: “Go to the place where three roads meet. For each person that passes by, record a dash if they’re on road one; a dot if on road two; and a blank if on road three. Using Morse code, translate the result of this into English, and treat it as the law of the land.” This process, miraculously, produces a legible document; produces, in fact, the ACA. In the course of enacting the new law, however, an ambiguity arises regarding whether subsidies are available for insurance purchased on federal exchanges, or whether they are limited to insurance purchased on state exchanges.
Is speculating as to how the king would have rewritten the law, had he known of the ambiguity, the best way to resolve it? Surely not. Does the king lack the ability to have reasons, or to intend things? Again, surely not.
Democratically enacted laws–however much it might pain patriotic Americans–are analogous to the result of such a process. We can, of course, inquire into the causes of certain lines of the ACA having the shape they do–for example, asking why the authors drafted the law the way they did, or why certain representatives voted the way they did– but this is akin to asking why the relevant persons were travelling the relevant roads at the relevant times, or to asking why each head of the random-like Hydra was inclined in the direction it was inclined. It would have nothing to do with the king’s reasons for giving the order he did, and it would tell us nothing about how the result of the Hydra’s writhing ought to be interpreted.
Interpretation is, however, necessary, for practical reasons: the ambiguities must be resolved. The best way to do so would be to ask the king how he wants it resolved–and this is entirely different from speculating as to how he would have answered such a question. The king may, however, refuse to clarify the law, yet without repealing it; and this would throw us back to the problem, only tangentially related to the problem of group intentions, of how to interpret a piece of writing which has been, not murdered, but orphaned.