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This is my first time posting so I hope I'm posting in the right place, following all the local conventions, etc. This is something that I've had on my mind for a while and this seems like one of the only places on the Internet where this kind of thing can go.
I've been thinking about how laws are described, and how lacking and vague they often are.
Imagine you are a preschool teacher, supervising a group of children on the playground. You decide to teach them the rules of soccer. You tell them some of the basic rules, like how there are two teams, and that the goal of the game is to score points by putting the ball into the other team's goal. You also tell them that You Are Not Allowed To Use Your Hands.
As the game begins, you leave to attend to some other business. When you return shortly afterward, all the children come flocking to you. They eagerly clamor to tell you that Johnny broke a rule. Specifically, he used his hand to stop the opposing team from scoring a goal. Johnny readily admits this, adding that he is sorry. One by one, the children line up to tell you what they think should happen.
Alicia says that Johnny should be given five minutes of timeout.
Braden says that Johnny's team should lose the game.
Carrie says that Johnny's opponents should be awarded one "point".
Darren says that Johnny should have to apologize to everyone else and promise never to do it again.
Esther says that Johnny should be banned from playing soccer because he clearly can't follow the rules.
Given the rule that you gave them (You Are Not Allowed To Use Your Hands), which, if any, of the children is correct? There is a correct answer in "real" soccer – Johnny's opponents should be given a free kick (or penalty kick, depending on where the offense occurred) and Johnny should be given a red card for denying a goalscoring opportunity. However, you never told the kids that rule. You only said that You Are Not Allowed To Use Your Hands. There was no way they could have figured out what your intended punishment for the infraction was. There's no reason why their suggestions aren't equally valid, since even though you stated that an action was illegal, you failed to tell them its consequences. Ultimately, you will have to appeal to the meta-rule of The Rule Is Whatever I Say It Is Because I Am The Adult And I Am In Charge, and the children will have a valid grumble about the arbitrariness of your tyrannical rule. However, their suffering is not in vain, as you have learned from this experience and in the future, you will formulate your rules in the form of a trigger ("when someone uses their hands") and a consequence ("the other team gets a free kick"), saving future generations of preschoolers from untold agony.
Okay, great. Some hypothetical preschoolers are unhappy. When has this ever happened in real life?
Take the case of the Pine Tar Incident. On July 24, 1983, the Kansas City Royals played the New York Yankees in a game of baseball. In the eighth inning, Royals third baseman George Brett hit a two-run home run, putting the Royals ahead 5-4. However, opposing manager Billy Martin then pointed out to the umpire that the bat Brett used to hit his home run had pine tar applied in an illegal fashion. Specifically, he contended that Brett violated the following rule:
The umpires examined the bat and agreed with Martin, ruling Brett out and his home run void. A whole flurry of events followed, including the Royals lodging a successful protest where the league office overruled the umpire's initial ruling and ordered a replay of the final innings of the game, stating that the appropriate consequence of the infraction was to remove the bat from the game, not overrule the home run that had been hit with it.
The ultimate ruling isn't very important, but the point is that Bats Can Have Pine Tar In Some Places But Not Others is the same kind of rule as You Are Not Allowed To Use Your Hands. It's a bad, ill-formed rule, leading to ad-hoc rulings that leave those involved feeling justifiably aggrieved. A better rule would be something like Bats That Have Pine Tar In The Wrong Places Will Be Removed From The Game. Indeed, Major League Baseball (one of the best-run organizations in terms of writing good rules) has recognized this deficit and has since amended its rule to be along those lines. Other examples of well-formed rules include If The Ball Goes Out Of Play Then The Other Team Gets A Throw-In (in soccer) or If A Pitcher's Socks Are Too Colorful He Has To Change Into Different Socks (in baseball), which both specify a clear trigger and consequence.
Obviously, these concepts apply to laws made by governments just as much as it applies to rules for games. There is a reason why the earliest laws read something like He Who Puts Another's Eye Out Shall Have His Own Eye Put Out and not like Putting Another's Eye Out Is Not Allowed. Transparency is important to having a fair set of laws, and clear consequences provide that transparency. In the case of Hammurabi's code, it means most people can live free from the fear of recreational eye stabbers, since they know that most people will be hesitant to stab eyes if it means getting their own eyes stabbed in return. On the other hand, if the law was Putting Another's Eye Out Is Not Allowed, the question of what the consequence is unanswered. In practice, it would default to The Law Is Whatever I Say It Is Because I Am The King And I Am In Charge, which is significantly more volatile. One would have to keep an eye out (har har) for eye stabbers that were unusually friendly with the king, for example.
How does this relate to the culture war? Well, I was thinking about the recent (okay, not really that recent) Supreme Court ruling on Affirmative Action. Every source I have ever read on the topic has talked about the ruling as something that says You Are Not Allowed To Discriminate On The Basis Of Race without any mention of what the consequences are. For example, the New York Times writes
Affirmative action is "unlawful", but what exactly is the penalty if someone discriminates on the basis of race? To draw a parallel to the preschool soccer situation above, one can easily imagine five people with the following suggestions:
All these suggestions are completely consistent with You Are Not Allowed To Discriminate On The Basis Of Race. In practice of course, the law defaults to The Law Is Whatever I Say It Is Because I Command A Byzantine Bureaucracy That Will Somewhat Enforce My Demands So I Am Vaguely In Charge. This is exactly the same kind of unclear situation as the handball and pine tar cases, except the stakes are much higher. If you ask various Experts (TM) what the current law actually is (in terms of trigger/consequence), you will only get speculation. Some say that universities will be able to continue to discriminate on the basis of race as long as it's in a way that isn't exactly the same as the way they had been doing in the past, while others say that the effect is slightly larger. No one knows what the law really is until it gets enforced.
On the other hand, there is also the possibility that we actually do know what the law is. After all, if a law is simply a trigger paired with a consequence, we've already witnessed at least one instance of the trigger (a university discriminating on the basis of race) along with the consequence brought about by that trigger (the universities are told nicely to stop doing whatever they were doing). That is, the law isn't You Are Not Allowed To Discriminate On The Basis Of Race, but rather If You Discriminate On The Basis Of Race, We Tell You To Stop Doing That. (As far as I know, the universities have not been penalized or ordered to compensate their victims in any way – if this is incorrect, I would be open to being corrected.)
If I'm right about this kind of law being bad, what can one reasonably do about this? If someone says "The Supreme Court just made affirmative action illegal", should I respond with "That is a non-central usage of the word 'illegal'"? If saying "AA is illegal now" is bad usage, what would be good usage of "X is illegal"? Certainly, there could be some cases where it is useful, as a code of laws can be made easier to understand if you group multiple triggers with the same consequence (for example, multiple actions in soccer are grouped together as "fouls" and have basically the same consequences). The category of "illegal" could be useful in a similar vein, where we group together various triggers that have the consequence "negative things happen to you". We could then exclude things from the "illegal" category if the consequences are not sufficiently bad, like how we don't consider earning income "illegal" even though it results in losing some amount of money through taxes.
I don't know how to end the post so this is the end of the post.
Courts really need legislative or executive support to punish things, as opposed to merely rendering them "illegal". I'd levy a big fine, like the EU does against tech companies that it dislikes. They just pick a number - $5 billion dollars plus after 90 days 5% of daily revenue unless they stopped bundling google search with android phones...
Of course, in the EU they know that legislators have their backs, they're united on this issue. I doubt it's the same in the US re affirmative action. The court is basically saying "if legislators want to set out a law to ban this stuff, we have your backs", they don't feel confident enough to go out alone. It's not really in the spirit of separation of powers for them to act alone. Likewise, Trump couldn't execute a travel ban, he faced suppression from the courts.
Just like Hanania's posts/book about US civil rights being interpreted into what they are today, it's the executive agencies and legislation alongside the legal decisions that make things actually happen.
In the US, legislative support for the ruling itself is irrelevant, as when a court makes a ruling, it is basically saying "The law as written is properly interpreted like this. If you don't like it, write a better law." The way that a legislature that disagrees with the ruling would overrule the court is by rewriting the appropriate law.
The executive branch, on the other hand, does have massive power to overrule the courts with immediate effect. John Marshall has made his decision, now let him enforce it. My take is that when this power is used as often as it currently is, it's a bad thing for the same reason that The Law Is Whatever I Say It Is Because I Am In Charge is a bad thing. I'll have to check out Hanania's writings.
My point is that they can only do this if there's a law or decision to interpret and they feel confident they won't just get hammered. Like you say, there's no law that says affirmative action is illegal, no clear notion of what the punishment should be, no guidance as to what should happen. They can reinterpret but it's hard to reinterpret standard and continuing practice into illegal, fineworthy, jailworthy crimes.
In Australia we had a case that would've cost the WA govt billions so they legislated to prevent the payout. Courts generally don't want to make judgements that will then get rendered irrelevant by the legislators.
There is. Title VI of the Civil Rights Act. Same law that protects blacks against discrimination also protects whites and Asians. It's just that the courts apply totally different standards depending on the race of those being discriminated against, while claiming otherwise.
Only de jure, as you say. It was devised not to protect Whites or Asians but to advance blacks, women and so on, so there's a logical consistency there. Intention and use were aligned. The court would not just be implementing what the words say, they're changing the fundamental meaning of the law even as everyone pretends it stays the same. I guess if we looked around we could find some case where whites were protected by the law (was there some case in Hawaii) but by and large that's not the function or goal.
This is on a different level to ruling that fish are bees or whatever for the purposes of some biodiversity preservation law, even though that's a huge change of factual content (and logically bizarre). They really need commitment from the other branches of govt to make such a meaningful change and get it to stick.
There's no change in saying those laws protecting everyone. The Fourteenth Amendment and the Civil Rights Acts would never have been passed if they were written to protect "only the blacks", and the Supreme Court has consistently held that they do, in fact, protect everyone. That is what the words said, that is what was intended. A claim that "No individual, on the basis of race, sex, color, national origin, disability, religion, age, sexual orientation, or status as a parent, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination in, a Federally conducted education or training program or activity" means "Well actually it's OK to discriminate as long as it's against people of the majority race, the less-fair sex, the lighter color, domestic origin, able-bodied, Christians, or heterosexuals" is at least as crazy as "a bee is a fish".
But the outcome is massive and blatantly obvious affirmative action that favours non-whites and harms whites. Corporate America somehow managed to hire 94% nonwhite in 2021! You see all these HR people openly admitting what that they've been doing it and nobody seems to leap on this illegality. Because it's not de facto illegal.
The Soviet Constitution might promise you all these beautiful rights. They may be written in black and white. It might even be legally binding, it might technically be the supreme law of the land. But Stalin can wipe his ass with it every day of the week and your peers will laugh (quietly inside their heads) if you want to use it to defend yourself against the NKVD. Ultimately, the people who commissioned and made it wanted to make it look good to foreigners, not for it to actually act as a constitution. It had little or no relevance to the administration of the USSR.
Even if the law as written protects whites, there's a partiality in people's heads where they know what is or isn't typically a hate crime, what equal opportunities mean, what sexual harassment is, where the standards of proof should be. Law is implemented by men, not words on paper and what's inside their minds takes on paramount importance. It is possible to change people's minds and reeducate them but it takes time and unity from above. Judges are not out of sync with the legislators, they're not just suddenly deciding to interpret against the text, they run in the same circles and execute the meaning of the law as they understand it, not the letter of the law. If their interpretation was actually against what the legislators (as a collective) wanted, the legislators would change it.
The legislators can only change the law de jure. Changing the law de facto can only be done by the executive and to a smaller extent the judiciary. The court is NOT saying "if legislators want to set out a law to ban this stuff, we have your backs". The court is saying "legislators have ALREADY set out a law to ban this stuff". The court merely lacks the power to enforce its decisions against the obstinacy of the executive.
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