According to a legal theory I am about to sketch, the Supreme Court would let stand the subsidies that are being paid to people through the Federal health care exchange, in spite of the language in the law that says only state exchanges are entitled to pass on subsidies. Instead, the Supreme Court would say that from a common-law perspective, the subsidies on the Federal exchange are what people have come to expect.
By a “common-law” perspective, I mean that the Supreme Court should pay little attention to written law or to the Constitution. Gasp!
In my amateurish libertarian legal theory, law should not come from legislation, or from Constitutions. It should represent the common understanding of what is legal. When a dispute arises, the role of the court is to resolve the dispute. The court exists not to interpret legislation or Constitutions. The court exists to resolve disputes peacefully.
If the court is unpredictable and arbitrary, then people will err on the side of bringing too many disputes to the court (or else they will ignore the court altogether, and it will not serve its purpose). Instead, a good court will resolve disputes fairly and predictably. Using precedent and clear principles makes for predictable decisions. With predictable decisions, people will not bring disputes unnecessarily to the court. When you can predict the outcome, there is no need to go to court.
In this world, law is embedded in precedent. There is no need for legislation. Hence, no need to interpret legislation. There can be legislators and legislation, but legislation is only binding if the court chooses to enforce it. If the court decides that legislation is contrary to common law, then the court can choose not to enforce the legislation.
What restrains the court in this world? If people stop agreeing to use the court to resolve disputes, then that limits its power.
By the way, this is a half-baked or quarter-baked theory of law. Comments welcome.
“What restrains the court in this world? If people stop agreeing to use the court to resolve disputes, then that limits its power.”
But all existing courts have subpoena power. If someone brings a suit against you, you HAVE TO defend it and you HAVE TO abide by its outcome. Of course, if you try not to, there has to be some way to force you to. In modern America, there are many ways.
If courts have different laws but have subpoena power, plaintiffs will go to the one most favorable to them. If both parties have to agree to a court, the game goes to a different level. I can imagine defendants who know they are in the wrong simply refusing to agree to a court.
Some fairly obvious objections would concern scalability and heterogeneity. Cultural parameters such as trustworthiness and clannishness would seem to matter too. My guess is that this solution would require the type of society in which other solutions work just as well.
Hopefully Handle will share his thoughts.
” If people stop agreeing to use the court to resolve disputes, then that limits its power.” Lex mercatoria didn’t die out because people stopped agreeing to use it but because of the imperialism of political legal entities. Its the politics that will keep us from ever having good courts.
“Legislative Interpretative Reliance” is a bad concept to rely upon in arguing what the Court should do because it gives an advantage to whichever party can most influence expectations and perceptions.
How exactly did people come to rely on the idea that there would be lawful federal exchanges, and that congress actually appropriated money to pay for them?
Well, the party in control of the executive branch of government simply asserted that people should expect this, and started acting as it if were legal, and created a system and allowed people to sign up for it, despite protest from the opposition and timely filing of objection. By the time it gets to the Court, the damage is done.
So, if the Court’s going to stand on ‘reliance’, and ‘expectations’ in circumstances like that, then it’s just going to be a rubber stamp for the Executive, and there’s no need for a Court at all, and just the Executive do whatever it wants, regardless of what the law says. That’s pretty much the opposite of ‘rule of law’.
“What restrains the court in this world? If people stop agreeing to use the court to resolve disputes, then that limits its power.”
The trouble is that the Court has a monopoly on regulating the rest of the federal government, and almost most of what local jurisdictions do. And that’s a lot of where the real trouble is.
Consider the typical non-Constitutional categories of substantive (as opposed to procedural) common law: Contracts, Torts, Property, and Criminal Law.
For Contacts: parties can and do agree to use competitive, private arbitration in the case of certain commercial contracts. Or sometimes they can specify which version of local law they want to use, and which local court they want to resolve disputes. Property is basically broken up into problems that are more like contracts, and problems that are more like regulating government action and policy.
Arbitration can happen in contract-less torts, but it’s pretty rare, because at least one party has no choice in the matter when the opposing party claiming harm – the one that likes their odds in the judicial system – brings a suit. Anyway, most contracts and torts cases get settled.
The second order effect could be that people stop entering into mutually beneficial arrangements that are subject to too much legal uncertainty, but again, that’s mostly in those same commercial circumstances in which they already have alternatives.
In the case of torts, people will respond to the courts as they do to the stock market. They take the expected value as well as the volatility into account when they make their behavioral decisions.
But now consider crime, civil rights laws, regulatory rules, government-regulating property law, constitutional law, and so forth. If someone doesn’t like what the government is doing, they have no choice but to take it to the one judicial system, whether they like or trust that court or not, whether it’s predictable or not. (It’s even worse when you have to take it to the administrative court within an agency). You can’t forum shop, so you’re stuck with what you’ve got, no matter how bad it is.
Theoretically it’s possible for that Court to go so far off the rails so often that it loses the respect of both the people and other branches, in which case the legitimacy and whole system of government can break down. But that’s not much of a restraint to abusive judging, and there’s a lot of ruin in a nation before you get to that point, which we’d rather try and avoid. Courts will usually tend to be as bad as they think they can get away with, and with a monopoly, they can get away with a lot of abuse.
As it is, the Court relies on a particular narrative of a political formula to bolster its legitimacy, which is that it is merely exercising ‘objective’ jurisprudence and not simply acting a council of dictators who can trump the regular government and rule by fiat.
It’s a bit of a pretense, but all political formulas are pretenses. However, the pretense narrative and it’s plausible deniability imposes its own constraints, because if the court violates the charade too obviously too often, the whole thing falls apart in the eyes of the ruled, from whom at least a minimum baseline level of acceptance and respect is necessary for a pleasant, orderly, functional society.
So the Court has to pretend to be following and fairly reading the text of the law (at whatever level in the hierarchy of law), and they have to be able to generate some pretty persuasive and plausible excuses when they go against the controlling text.
That also gives ordinary people comfort, because they often want to see the rules for their own behavior written in black and white, and they want those black and white lines to be predictably and comprehensibly enforced. So they want a speed limit sign to say, “55 mph”, not “Drive reasonably under the circumstances and weather conditions, as per the extensive case-law that is impossible for a layman to research and understand, so talk to your attorney before accelerating.”
If the text of the law says “55 mph”, and the court pretends it is bound by text, but then surprises people and tries to say, “Under the circumstances, 50 mph was too fast, and the penalty for speeding still applies,” then it’s like in a fairy tale when the magic spell is broken and people can suddenly see through the illusion of the socially-beneficial ‘noble lie’ (that is really like one of those self-validating, consensual hallucination, tinker-bell truths you talk about, that are made-up, but become real if people believe in them, and sustain superior equilibrium thereby).
Every time the court faces one of these textual problems, it knows it is playing with the fire of disrupting the consensual-hallucination that is at the heart of its own power and the legitimacy of the entire system of government and orderly social organization.
One way around this problem is just when the members of any significant, lasting coalition start to get outraged and risk peeking to see the man behind the curtain, you throw a textual interpretation or precedent-overturning bone their way, and outrage the other side. In this way, doubling up the bias actually makes a court seem, “Fair, neutral, impartial, disinterested, and objective.”
The speed limit is actually a very good example of something that appears to be black and white but isn’t.
That’s my point. People like officially black and white rules, and the pretense that those rules mean what they say, even if the reality of enforcement is more nuanced.
The speed limit is largely if not primarily used for serving warrants and creating police-citizen contacts that predictably turn sour on a statistical basis.
When it “works” the conservatives and liberals are both reinforced in their opinions.
We should try not to be naive about how rules play out in real life (not accusing anyone of being naive).
It is conducive for the reputation of the court to abjure politics, play referee, and return disputes back to the other branches to resolve. It is conducive for the power of the court to maintain its own agenda in judgment separate from considerations of laws themselves. Clarity, consistency, predictability, uniformity are all valuable in transmission. The constitution is mostly construction and some embodiment of most important guiding common law principles, so it isn’t difficult to select those from it. Judges are political though, so the temptation to join the fray is often irresistible and it is easy to self justify their preferences as right even at the cost of these.
What place have contracts in this legal theory of yours? Surely if a dispute concerns a contract, the text of the contract, not “how people have come to read it” matters? And more specifically, what matters is what the people who agreed to the contract understood it to mean.
The Constitution is a Explicit Social Contract. The idea of common law precedent is that law is inherited. But we inherit written, contractual law as much as we do customary, implicit law.
I guess this decision today could be viewed as confirming your “common law” point.
http://reason.com/blog/2014/12/15/supreme-court-sides-with-police-in-4th-a
Maybe that’s the reason for extra-common law embedded in the constitution – the supposed protection of minority rights.
Interesting case. Would you feel better about the police search for drugs if the stop had been for a genuine traffic violation? I would not. It seems that my preferred reading of the text of the 4th amendment got tossed out of the common law a long time ago.
Slightly, but I take your point. Death by a thousand cuts and an indictment of the rationally irrational voter.
The Republic is a form of division of labor. When they leverage voter ignorance and even defraud voters it is failing.
They accomplish creep because they, for example, exaggerate things like the problems due to marijuana. Then they use that to push for things like eroding the 4th amendment. We end up with no-knock raids (and illegal car stops) because nobody you know is a victim and the cops claim they need it.
But if we did a reboot, like a form of zero-based legislation we wouldn’t have these things.
No one seems to bite on my point that if the government is lying to us none of this even matters.
I continue to have faith that if people knew and came to grips with what is really going on the voters would not want it.
Look at the effort that goes into “torture works” and “NSA spying works.” This is to trick the voters.
Bad for us if statists get a one-way valve on common law versus legislation.
Didn’t people get to expect to keep their doctor/plan, etc?