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