Mises Wire

There Is No Such Thing as “Settled Public Policy”

Mises Daily Article Aug 28 2015

I’ve noticed a phrase that is being used with increasing frequency in the media by pundits and commentators. It’s only used by the winning side in various controversies. The phrase is “settled public policy” or, sometimes, “settled law.”

We saw it recently when Mark Oppenheimer in TIME claimed that any “organizations that dissent from settled public policy” should be subject to draconian tax increases (i.e., have their tax-exempt status removed). Oppenheimer was writing on the recent gay marriage decision from the Supreme Court, and in the wake of the decision, he must have sensed his opportunity to declare all his ideological opponents to be heretics, and thus anathema to civilized human society.

Other examples abound as well. In an unsigned op-ed from 2014, The Los Angeles Times said that federal ownership of vast areas of land within states should never be questioned because “settled law” dictates that the matter is no longer open to debate.

So what is “settled public policy?” It is not a description of fact, but an assertion of correctness. For example, when a Supreme Court rules on something, as it did in the case of gay marriage — and which prompted Oppenheimer’s authoritarian diatribe — the supporters of the decision hail the matter as “settled” and no longer open to debate. It’s the secular version of Roma locuta estcausa finita est. The US government has spoken, the proponents of “settled public policy” proclaim. No more debate need be tolerated. But here’s the thing: There’s no such thing as “settled public policy.”

You know what was once “settled public policy”? The Dred Scott decision. After all, the Supreme Court ruled with notable finality that black people have “no rights the white man was bound to respect.”

In 1860, this was “settled law.” The Constitution, which is a blatantly pro-slavery document, was fairly clear on this matter. The chief justice at the time, Roger Taney, felt bound to rule according to the written text. And he thus concluded: blacks don’t have the same rights as whites. Case closed.

And yet it wasn’t. As I’ve noted before, politics trumps law, and as long as there is no such thing as “settled politics” — which there never is — there will never be “settled public policy.”

Here’s another example of settled law: Korematsu vs. the United States. In this Supreme Court case, the majority ruled that yes, it’s perfectly fine to round up people based on their race or ethnicity and put them in concentration camps. In fact, that ruling is still legally valid even today. The Court has never explicitly ruled against this precedent. But hey, it’s settled law, so anyone who opposes that sort of thing should just get over it.

Of course, you don’t have be the world’s biggest cynic to see why those who use this phrase use it in this context. It’s merely a political tactic — because its practitioners know politics trumps law — to shut the opposition up, and to demoralize critics of the government in an attempt to convince them that federal law can establish unchanging doctrine.

In fact, if one attempts to google the phrase “settled law” google returns this text at the very top of the search-returns page: “If you do a search for “settled law” on google most of the results revolve around either the ACA [“Obamacare”] or the Roe v. Wade decision. Both of which are highly contested.”

The fact that google highlights this connection to Roe and the ACA without being prompted tells us that activists and ideologues have been attempting to cast Roe v. Wade and the Affordable Care Act as “settled law.” But google, like any serious scholar (oddly enough), immediately recognizes that such laws are anything but settled. Even in the short-term, they are highly contested, and in the medium- or long-term, they are even less “settled.”

In spite of this, the appeal to settled law has a certain air of legitimacy for Americans. Deeply ingrained in the American mind — especially among conservatives — is the idea that there is some kind of final, unchangeable constitutional law out there. American rightists often rather fancifully believe that there once was a time when most everyone agreed on what the constitution said, and that its text was sacrosanct. So even today, for them, once something is determined to be “the law” it must be respected. The political weakness of this position is apparent.

At the same time, American leftists hold closely to what Murray Rothbard called the “Whig theory of history” in which humanity is forever progressing toward ever greater and more enlightened heights. And thus, whatever the latest ruling is from the courts, must be the “correct” and more enlightened one. If a court rules the “wrong” way, it is merely a temporary setback on the way to a correct ruling.

Europeans, on the other hand, are less prone to such unsophisticated thinking. They understand that political reversals of fortune and legal aberrations can be commonplace in the political world. Certainly, one could have argued in 1989 that the right of the Stasi to imprison people for thoughtcrimes was “settled law.” And then, one day, the Stasi was gone — through extra-legal means.

But let us never let actual history get in the way of pressing the political advantage. The slave drivers of old certainly used Oppenheimer’s “settled public policy” tactic with the Dred Scott decision, proclaiming that the northern nullifiers and abolitionists were criminals who opposed what all “reasonable” people could see was settled public policy. “Those reprehensible abolitionists,” they surely said. “They try to overturn our lovely and established rule of law.”

The same political tactics persist today, although the ideologies have changed. And it is ideology that lies at the core of the matter. Contrary to the risible myth that courts are above and indifferent to the ideological and political contests of their time, the courts — and especially the US Supreme Court — tend to toe a line very close to whatever will please powerful interest groups at any given time. This is true so long as the court thinks the public at large will at least tacitly accept the decision.

The Court certainly took no political risks when it declared Japanese-Americans to be second class citizens with Korematsu. Nor did it go out on a limb with Dred Scott. When it has miscalculated its own political strength, though, the Court has suffered significant blows to its prestige. For example, when the Court ruled in Worcester vs. Georgia (1832) that the Cherokees had a right to private property within the state of Georgia, President Jackson simply ignored the Court and sent the Cherokees on a death march to Oklahoma. The Court learned its lesson: always make sure your ruling will get support from either Congress or the president.

Certainly the recent gay marriage ruling presented no risk to the Court. It knew it had the full support of the executive branch and half of Congress. Even if most Americans are blissfully unaware of the fact, the Court knows that without political support, legal rulings are meaningless.

But, over time, what the public will accept, and what interest groups and institutions hold the reins of power can change considerably. As these variables change, so will the courts, and the legal interpretations that their judges make. Nothing is ever “settled.”

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