Danielle Allen's op-ed this morning. Discussing the insistence of some that health-care reform will result in rationing and death panels, Allen chides those who respond with an accurate description of the legislation. "One can't answer them by saying: 'These policies won't ration; there will be no death panels,'" she writes. Instead, reformers must detail the "institutional checks that will prevent the emergence" of death panels and rationing.(Here's a link to Allen's piece).
In other words, the questions reformers have to answer is not "when did you stop beating your wife?" It's "what will prevent you from beating your wife?" Given that there is no such thing as a "death panel," nor any policy provision that would establish such a thing, it is hard to explain the institutional checks that would prevent a "death panel" from coming into being. When you have to explain why your bill won't create death panels, and what will make sure that it doesn't, you've pretty much lost the argument.
This argument raises interesting questions about how to think about legislation. As I understand him, Klein is looking strictly at the text of the bill, and thinking about what the bill is designed to do.
By contrast, Allen is thinking about the likely consequences of the bill:
These activists do not claim that the proposed reforms include policies whose explicit purpose is to ration, nor do the more careful among them claim that the policies will establish panels to help people decide when to die. They are not arguing about the semantic content of the policies; that is, they are not arguing about the meaning of the words that are actually in the relevant drafts of bills. Instead, they are considering, as the pragmatist philosopher William James put it, "what conceivable effects of a practical kind the [policy] may involve -- what sensations we are to expect from it, and what reactions we must prepare."For a couple of generations, there has been much discussion of the "unintended consequences" of legislation. Allen is suggesting that these consequences are often predictible, and, therefore, it is not unreasonable to discuss legislation from the standpont not of its intent, or of its explicit language, narrowly construed, but, rather, in terms of its likely consequences. Isn't one point of Cass Sunstein's Nudge that human beings are often irrational in predictable ways. As the recent financial crisis shows, as do countless tales of mistakes by government, that is no less true of elites than it is of the common man. That predictable irrationality would, presumably, also apply to understanding the consequences of legislation.
Quite often the rancor in public debate turns on this distinction between a narrow and broad reading of legislation, with the result that each side thinks the other is arguing in bad faith. Thus it long has been, and probably ever must be.