Another questionable decision from SCOTUS
Steve Schear
schear at lvcm.com
Sun Jun 2 12:47:14 PDT 2002
In an obscure tax case decided this term, United States v. Craft,
http://supct.law.cornell.edu/supct/html/00-1831.ZS.html a husband owed
money to the I.R.S. and the I.R.S. put a lien on some of his property.
Michigan, like a number of states, has a concept called "tenancy by the
entireties," in which property can be owned by "the marriage" as a separate
entity and, when it is, the husband and wife have no individual interest in
it. The husband transferred the property to "the marriage," and then told
the I.R.S. "Look, I don't own this stuff anymore, 'the marriage' does." The
District Court found the transfer was not fraudulent and that the I.R.S.
could not touch the property. The 6th Circuit affirmed. The Supreme Court
noted that the legitimacy of the transfer was not disputed on appeal.
The Court held that Michigan's concept of a marriage as a separate entity
from its individual participants was nothing more than a legal fiction and,
as a mere fiction, the I.R.S. could ignore it. O'Conner held that if the
husband and wife didn't individually own the property, that meant no-one
owned it, a result she found absurd.
I am gravely troubled by this reasoning. As pointed out in Alexis de
Tocqueville's truly brilliant analysis of the foundations of our American
government (e.g., http://www2.bc.edu/~lynchtq/toc.html):
"The government of the Union rests almost entirely on legal fictions. The
Union is an ideal nation which exists, so to say, only in men's minds and
whose extent and limits can only be discerned by the understanding.
Everything in such a government depends on artificially contrived
conventions, and it is only suited to a people long accustomed to manage
its affairs, and one in which even the lowest ranks of society have an
appreciation of political science."
Of all the legal fictions in American government, one of the hardest to
swallow is the fiction of a Supreme Court. Under this fiction, when certain
individuals express opinions on various issues under certain conditions, we
are to regard these opinions as, not merely the separate individual
opinions of these few separate and individual persons, but the single
opinion of something called a Court, which is said to have powers and
responsibilities wholly separate from the individuals of whom it is
comprised. These powers and responsibilities are said to flow from
something other than, and more than, the mere composite or sum of those
individuals.
All the sources of these powers and responsibilities -- constitutions,
laws, governments, social compacts written and unwritten -- all are
themselves legal fictions, wholly made-up conventions. Indeed, law itself
is the supreme legal fiction.
The Justices should think long and hard before adopting a theory which
disses the respect the citizenry has traditionally reposed in corporate
entities and institutions that serve social purposes thought valuable. For
as de Tocqueville rightly noted, that respect is essential to our
republican form of government. The philosophy the Court espoused was so
general that it cannot fail to encompass the Court itself -- and for that
matter the Union -- in its generality. Every question the court asked of
marriage can be asked of both the Union and the Court. If public land
cannot be apportioned out to individual citizens, who owns it? And if
judicial opinions do not represent the private opinions of individual
justices -- if we get rid of this "Court" legal fiction -- can they be said
to be the opinions of anyone?
These are questions well worth asking. If their answers prove not to be
wholly absurd, then neither is the question Justice O'Conner asked about
who owns property in a marriage. If they are wholly absurd, then so is our
form of government.
steve
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