On Magic Legalism

“He says the income tax is unconstitutional,” I was explaining, “and he says he can prove it. But I have to admit I couldn’t follow some of his argument.”

“You were dealing with an exponent of what I call ‘magic legalism,'” Mr. Magundi said. “Without really even thinking about it, the magic legalist sees the law, not as an expression of the intent of the legislator, but as an incantation. If a jot or a tittle of the incantation is out of place, it loses its effect. So, when he is dissatisfied with a law, the magic legalist looks for a way, not to change the law, but to break the spell. The income tax is a perfect example: Congress intended to amend the Constitution to allow an income tax, and the state legislatures intended to approve such an amendment; but the magic legalist imagines that he has found some flaw in the process, and therefore the spell is broken, or rather the incantation was never effective in the first place. Fortunately most sane courts take the position that, barring egregious errors, the obvious intent of the legislators is a guide in interpreting the law. Otherwise, if any act of Congress could be voided by a single misprint, then—well—have I talked myself into a corner here?”


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