We need something like the senate filibuster debate rule for taxes. Basically just state that there is this thing I can do to skirt the tax system so I declare a tax evasion without having to actually make people do stupid stuff.
That defeats the purpose of the law. If they’re flagrantly violating the spirit and intent by barely passing the technical requirement, then the law should either A) be removed or B) retooled to address the loophole.
We should never encourage ignoring certain laws or it undermines the whole system. It’s why I don’t support states legalizing weed under the federal government’s nose/while they turn a blind eye. Sure, we like it for weed, but what happens when a super conservative state does something less popular like, say, functionally bans gay marriage and goes, “well you aren’t enforcing drug laws, why should they get a pass but not us?”
I’m sure there are better examples but hopefully I’m getting my point across. Exceptions = weakening of the established structure. I don’t know about you, but I like that “the law is king” in the US. Mostly because we can change them.
> That defeats the purpose of the law. If they’re flagrantly violating the spirit and intent by barely passing the technical requirement, then the law should either A) be removed or B) retooled to address the loophole.
Yes, indeed. It completely defeats the purpose of the law, which is why the suggestion is akin to your A solution (that it should be invalidated/removed).
The law doesn't encode "purpose" or "spirit", the law only exists as written. When applying the law, and tax law especially, it's counterproductive to speculate as to "spirit" or "purpose", and best to focus just on what the law actually is, because that's the only part that really counts as "democratic". Intentions and ideals weren't voted on, the actual literal text of the law was.
The fact that laws can't (or just don't) address purpose is a major shortcoming. IMO, the preamble to the US Constitution is its most important part. Defining purpose and scope gives later judges clear guidelines on how to handle future ambiguous cases and people who think they're clever for finding technical loopholes.
> but what happens when a super conservative state does something less popular
Or like abortion. The new abortion rules in conservative states are betting they can sway the federal gov if a lawsuit arises, but its based on the assumption they'll get to ignore the gov.
Luckily it was shot down, but yeah, my concern is the serious precedent weed legalization is setting. I like the outcome, I am scared of the precedent.
Rule of law lasts only so long as the laws are accepted by juries. If the laws drift too from from public acceptability, the people will weaken rule of law on their own terms.
The solution to a bad or poorly written law is not to leave it on the books and have some "oh well we actually meant" thing that means it can be arbitrarily applied in a different way than written.
Courts can interpret laws if the interpretation is the problem. If there is just a stupid loophole, then either the law itself makes no sense (as seems to apply to this Jones Act) or it needs to be reworded to align with its intent.
This reminds me of all the california electricity deregulation games where Enron et al moved power out of state and back, or had plants go down strategically for maintenance in order to gain the system. The correct solution is not to say "play nice, you know what we meant". It's to have a consistent and enforceable set of rules that dont admit gaming.
Laws, at least in many European countries, are prefaced with a preamble, introduction, or Vorwort, that explains a bit of the history, the motivation, the underlying principles, the philosophy, the practicality, and the guidelines for interpretation of that law. The words, as written, are not to be taken, in any case literally. Moreover, a literal interpretation contradicting the spirit of the law is unlawful, and that is one of the principles of many legal systems. Using a loophole that contradicts the law is unlawful; imagine the law says you have the right to water your plants in your balcony; however, you only do it when the neighbor below is sitting at their balcony with the intention to bother them: you are abusing the law and committing an unlawful act.
A law system like that requires wisdom. America has a lot of smart but almost no wisdom, so it would be chaos and anarchy if we suddenly switched to such a system.
You're being downvoted but that's actually how tax works in the U.S. and Europe.
Tax is one of the few areas of law where activities can be declared illegal and subject to punitive sanction after the fact. For example, the fictive loss tax shelter scheme that was popular 15 years ago. Fictive losses were technically legal at the time the scheme began (in the sense that they were legal within the letter of the law but violated the intent of the law), and weren't explicitly stated to be illegal until years later (https://en.wikipedia.org/wiki/Jenkens_%26_Gilchrist).
