Ian Underwood - Courcruxes - Granite Grok

Ian Underwood – Courcruxes

Ian Underwood | GrokWatch News Desk

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Suppose you buy a car made by General Motors.  And there is a problem with the car — the brakes aren’t designed properly, and you’re severely injured in a car crash.  So you want to sue GM.

And suppose you’re required to do that in a court that is owned and operated by GM.  In particular, the judge and the other officers of the court are employees of GM. 

You go to the judge to voice your concern about this.  And he tells you:  Oh, there’s no conflict of interest, because the court is a separate part of the company.

It’s laughable, right?  Because it violates what we might call ‘the first rule of justice’, nemo judex in sua causa:  No one can be judge and party in his own case.

But this is exactly what’s going on when a person, or a business, or a school board, or a town has to ask a state Supreme Court to rule on the limits of the power of the state government.  (Or, on a larger scale, when anyone has to ask the federal Supreme Court to rule on the limits of federal power.  Or when a victim of police impropriety has to ask the police to investigate themselves.)

And if you tell the Justices about your concern, they’ll tell you:  Oh, there’s no conflict of interest, because the court is a separate part of the state government.

Still laughing?

 

Many people wonder how we’ve reached the point where, for example, the Fourth Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

…has been interpreted to require you to be searched by a federal agent before boarding a plane, even when there’s no cause to suspect you of anything.

The long answer to that question requires a discussion of how and why jurisprudence has evolved into a specialized branch of lexicography.  But the short answer is that we’ve put the fox in charge of guarding the hen-house.  But because it’s dressed in a robe, we think it can be trusted.

Now, suppose you’re a school board, like the one in Croydon.  And suppose you’re trying to do what’s best for the kids in your district by working with parents to find and pay for the most appropriate school for each of those kids.

And suppose a bureaucrat who works for the state says you can’t do that, citing selected parts of selected laws that appear to support her side (at least if you’re unable to tell the difference between ‘may’ and ‘must’), while ignoring those laws that say you’re on solid ground.

If you decline to back down, the end game is likely to be played out in court.  And what does that mean?  It means that you’ll be asking the government of the state of New Hampshire — represented by a panel of its employees — to rule on the limits of its own power.

Fortunately, there’s no conflict of interest there, because the court is a separate part of the state government.  Right?

 

As a thought experiment, suppose we wanted to prevent the state from meddling in education altogether — in exactly the same way that we want to prevent it from meddling in religion, and for exactly the same reasons.

How might we do that?  Perhaps we could write a law.  Perhaps we could amend the state constitution.  Maybe we could make it clear that the state has to treat religious and non-religious schools with the same deference.  We could, for example, require the legislature to ‘cherish the interest of literature and the sciences, and all seminaries and public schools’.

It should be pretty clear to everyone except a judge that whatever the word ‘cherish’ might mean, if it applies to seminaries, it can’t mean (1) fund, (2) operate, or (3) regulate.  And the word ‘and’ means that what applies to seminaries would also apply to public schools.

That would erect a wall between school and state, right?

But wait — the state constitution already says this.  And the courts have spun this apparent prohibition into an entire bureaucracy to fund, operate, and regulate schooling.

Similarly, we tried to get the state out of the business of deciding who could own or carry a gun by flatly stating that the right to keep and bear arms is protected for everyone.  And the courts have spun that apparent prohibition into an entire bureaucracy to regulate that right.

Get out your copy of the state constitution, and look for other examples.  They’re not hard to find.

I hope by now you’re getting a sense of the absurdity of the situation.  We’ve allowed judges to arm themselves with the power to redefine words like ‘all’ and ‘not’ and ‘and’ to mean whatever they want.  So trying to challenge them with laws — which are made of words — is kind of like going up against Lord Voldemort with a pointed stick.

 

Let’s think about what happens when Croydon goes to court.  On the one hand, the courts could rule against the town.  The town, for its part, would be justified in pointing out the obvious conflict of interest, and therefore in deciding to simply ignore the courts in order to keep doing what’s best for the kids, the parents, and the taxpayers.

But the real danger is that the courts will rule for the town, on some very limited basis, giving it a partial victory, which will then be hailed as a ‘good first step’.

I say ‘danger’ because there is an almost overwhelming temptation, when a court rules in your favor, to accept that immediate result — even though it means that you are also accepting that you needed the court to give you the result, i.e., that the law itself was not enough. That is, in order to get today’s decision, you accept in advance all of tomorrow’s decisions, no matter how ludicrous they might be, or how much overreach they might involve.

This is a very, very bad trade — kind of like taking a bag of trinkets in exchange for Manhattan Island.

 

Lord Voldemort made himself difficult to kill by hiding pieces of his soul in a collection of objects called ‘horcruxes’.  To bring him down, Harry Potter had to chase down and destroy those horcruxes.

Judicial opinions serve much the same purpose — people who have fought hard to get them will be loathe to give them up, so they’re not likely to challenge the absurdities at the root of the tree that bore the fruit.

And while Harry Potter had to chase down only half a dozen horcruxes, the state and federal courts have created thousands of them.  And those horcruxes are zealously protected by the people who worked to help create them.

Talk about your mastery of dark arts!

As things stand now, the legislature and the courts currently operate under two very different ideas about how law works.  The legislature thinks that you write down some statutes, and those tell people what activities are in or out of bounds.  The courts, on the other hand, think of those statutes as starting points for the creation of common law principles that embody their personal ideas about what is ‘just’.

But combining statutory and common law in this way is kind of like combining chlorine bleach with ammonia.  Each is a fine cleaner on its own, but together they produce a toxic gas — which, if you think about it, is probably as good a description of the current state of the law as you’re likely to find.

Anyway, until we stop combining common law and statutes, it seems to me that there is very little point in creating new statutes, or in trying to amend constitutions.  In fact, it would save everyone a lot of time and trouble if the legislature, instead of drafting a bill and holding hearings, would just write the title on a blank piece of paper and send that over to the courts so they can make it say whatever they want, which is what they’re going to do anyway.

So what, if anything, can we do to contain the cloud of toxic gas that the law has become?  As I’ve tried to show, passing more laws or amending constitutions just adds more chlorine to the mix.  But perhaps we can clear the air in the long run by changing public perception of what the proper role of a judge really is.

In my view, a panel of appellate judges can provide three (and only three) valuable services.

First, they can provide feedback on whether the law expresses the intent of the legislature.  This doesn’t require lengthy opinions.  If they agree on a verdict, and the legislature disagrees with that verdict, then it’s up to the legislature to rewrite the law to bring the words and intent into agreement.

(“This is how we think the law applies in this case.  If that’s not what you intended, try again.”

Second, they can provide feedback on whether the law is clearly written.  Again, lengthy opinions are not required.  All we need to know is whether they all agree on a verdict.   Because if a panel of highly educated people can’t agree on whether the law applies in a particular case, that law is void for vagueness until such time as the legislature gets around to rewriting it to remove that vagueness.

(“We can’t agree on whether the law applies in this case.  The law is therefore void for vagueness, so try again.”)

Third, they can provide feedback on whether a law conflicts with the constitution, or with other existing laws.  Again, lengthy opinions are not required.  And in fact, opinions of any kind need to forbidden in this case in particular, since those are what are causing all the problems.

Think baseball.  Do we want the first base umpire to tell us — yes or no —  whether the runner arrived before the ball?  Or do we want him to explain why, in his opinion, the word ‘before’ merely expresses an ‘expectation of success’, which allows a runner who arrives after the ball to be declared safe (or a runner who arrives before the ball to be declared out) by balancing that expectation of success against a ‘societal interest in competitiveness’?

Ideally, judges wouldn’t need to write, or even say, anything at all.  They could — like Siskel and Ebert — just point their thumbs up or down.

 

In the end, the courts have the power to rewrite laws by redefining words only because (1) they say they do, and (2) we acquiesce to that.  But the courts are like the gods of ancient Greece and Rome in this respect:  if enough people stop believing in them, they cease to have any power.

There remains, of course, the horcrux problem:  A court that pays for something you want with other people’s money, or curtails rights that you don’t think other people should be exercising, is a court you want to believe in.   So this isn’t a change that we should expect to see any time soon.

But as Confucius said, the beginning of wisdom is to call things by their right names.  There are a lot of things that we would handle differently if we named them differently.  Much of what we now call ‘crimes’ are really vices.  Much of what we now call ‘rights’ are really entitlements.  Much of what we now call ‘education’ is really schooling, or more precisely, day care.  And so on.

We need a new name for what we have until recently been calling ‘judicial opinions’.  I’m going to start calling them courcruxes.  And I invite you to join me.

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