Legal Fictions in Constitutional Law
One subject that fascinates me is the use of legal fictions in constitutional decisions. There are many ways to define a legal fiction, but one is that legitimacy demands that you honor a principle in form but not in practice. Here’s a simple example. Judges must recuse themselves if their impartiality can be legitimately questioned. This is an important ideal for the rule of law. Nevertheless, there are many instances in which you know how judges will rule on a case due to their bias. How so? Perhaps they have written a previous opinion taking a position on the issue, or have made their views clear otherwise. The actual situations when judges recuse themselves–they own stock in a company in the litigation, say–probably matter less than ideological bias, which is not a ground for recusal.
There are many notable cases in which the Supreme Court stands firm on the principle but folds in practice. In Perry v. United States (The Treasury Bond Gold Clause case), Chief Justice Hughes was very concerned about admitting that the United States could devalue its sovereign obligations. As a result, he gave a long speech (in dicta) explaining why this was unconstitutional. He then said, “Oh, but in this case the bondholders can’t get a remedy.” In Marbury, Chief Justice Marshall didn’t want to admit that the President could defy an order of the Supreme Court. Thus, he gave a long speech (in dicta) about the importance of the remedies to vindicate rights. He then said, “Oh, but in this case Marbury has no remedy.” There are other precedents, but you get the idea.
The most powerful legal fiction in modern constitutional law, I think, is that the Federal Government does not possess a police power. Lots of judges and professors pay lip service to this idea, and it is an important concept given our traditions and federalist structure. In practice, though . . .
Along comes Chief Justice Roberts. He doesn’t want to admit that Congress does have a general police power. So he gives a long speech (in dicta) about why that is not so. He then says “Oh, but Congress can tax the things that it cannot directly regulate.”
Now in fairness, the ideal of enumerated powers is not completely fictitious. Lopez and Morrison stand for something. And if you take Chief Justice Roberts seriously, Congress is limited in the sanctions that can be used to control inaction. We’ll see.