Upset that Trump is violating "Settled Law"? Relax, there never was such a thing.

And if you want a stable legal environment, we need to abandon fake law and get back to the real stuff.

We hear a lot of talk about “settled law” when some big change is made in our legal environment. The Dobbs v Jackson Supreme Court of the United States (SCOTUS) decision in 2022 that overturned Roe v Wade and sent the abortion decision back to the state legislatures is one.

Even though the Roe SCOTUS decision only dated back to 1973, for decades afterwards, people who support the right of a woman to have an abortion would speak of the matter as being “settled”.

Clearly not.

Another example of not-so-settled law is Trump’s wild declaration that birthright citizenship isn’t enshrined in the Constitution (many thought that it was) and that he’s ending the practice by decree alone.

Trump has a point. The 14th Amendment to the US constitution was adopted in 1868, shortly after the American “Civil War”. It was really a war to prevent the south from seceding from the Union, but we all were taught to incorrectly call it a civil war, so, okay.

The point of it was obviously to ensure that former slaves now set free (and their children) were officially American citizens. Here’s what it says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

It’s that “and subject to the jurisdiction thereof” part that is in question here. Does that include infants born on US soil by parents who are not US citizens and who came here illegally?

I sure don’t know. Doesn’t sound like it. Is this law “settled”?

Somewhere in our country’s zeitgeist, we adopted the notion that once SCOTUS has made a ruling on a subject, that the matter is now somehow “settled” and cannot be changed.

That isn’t the case and it never was. As Ryan McMaken of the Mises Institute says in a great article I am currently stealing from, “In politics nothing is ever settled or permanent.”

This has always been true. The rulings of judges or courts always reflect current ideologies, world-views, and political realities. And these things are always in flux, sometimes more dynamically than others.

One famous example of this “settled law” flip-flop centers on WWII, when President Franklin D Roosevelt wanted to round up all the Japanese Americans on the west coast (all completely innocent and loyal Americans, by the way) and lock them in internment camps.

The SCOTUS of the time somehow found in the Constitution the authorization for the government to do such a seemingly illegal and un-American thing. But years later in 2018, SCOTUS looked at that prior “settled” and “definitive” ruling and decided it was wrong, and that the exact opposite was true.

So, if you ever find yourself trying to defend some particular decision or other as “settled law”, you probably shouldn’t. There ain’t no such thing. And, good. Would we want that 1944 SCOTUS opinion to be “settled law” forever?

Right now our society is in a period of very dynamic social upheaval. Many of our social norms and ideologies and “political realities” are in massive flux. This is good. Our society has gone off the rails in several dimensions. A “reboot” is sorely needed.

I don’t know if all the changes coming will be good or not, but I definitely think that our bloated, corrupt, imperial, authoritarian, managerial, racist, sexist legal structure that is largely based on envy and class warfare rather than individual freedom and merit needs some serious “unsettling”.

Shake the damned box, I say.

That said, a society thrives in an legal environment of stability. To prosper, we all need simple rules to follow that make sense. The libertarian ethos of “don’t hit others and don’t take their stuff” is a little too simplistic to cover all contingencies, but it isn’t a bad place to start.

So, to have a stable legal system, start off with laws that conform to our human nature and allow it to thrive. My opinion is that such a legal system will be built on fundamental libertarian principles.

But even if I’m wrong, there is an important change we can make to have a more stable legal environment. Abandon statute and legislation in favor of common law.

Common law evolves slowly, over time, case by case. Principles are defined and upheld in the varying context of dispute after dispute after dispute over long periods of time. Exceptions and nuance arise organically, due to the different circumstances a principle is applied.

With common law, the rules of a society can change along with social norms, but it all happens gradually and slowly.

Statute and legislation, on the other hand, is designed to be an immediate, abrupt, shocking change to the legal code. That’s the whole point of it — and it’s terrible.

What started out, Code of Hammurabi style, as mere codification of existing common law has metastasized into a system where each successive election can result in a nation’s legal system being rapidly distorted back and forth to align with competing ideologies and visions.

It’s impossible to live and thrive in peace under such a system.

And that’s where we find ourselves right now. This didn’t start with Trump. We’ve been here for a while.

Maybe it’s time to finally fix things. I surely hope so.

Naturally,

Adam

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