Another questionable decision from SCOTUS

[Steve Schear]

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