A “results” oriented society is a regression from a “rules” oriented society. We have that in Bangladesh—courts that do what they think is “right” instead of following the rules. It’s better than courts where judges take bribes or act in their personal self interest, but not as good as courts that rationally apply the rules. It doesn’t promote respect for the rule of law because people disagree on what’s just and right. But mostly they can agree on the rules and reconcile themselves to the results if they feel the rules were followed.
What a shamefully misleading article title! I’m shocked to see so many well educated Americans, who should know better, embrace such thinking. What I admire most about Americans is that they’ll jump off a bridge if a court tells them to and the paperwork is in order. That’s how you build a marvelous civilization.
Applying the rules is great when the rules seem mostly fair and reasonable.
When the rules, applied to a situation, produce a seemingly very harsh outcome – especially when there is no evidence their original authors would have actually wanted that outcome in this particular case – judges often look for ways to "bend" them.
Rather than something limited to countries such as Bangladesh – it is something which has happened time and time again in the history of common law tradition. If a judge feels that mechanical application of the law produces an unconscionable outcome, they will find a way to reinterpret the law, so it doesn't actually mean what it says on its face.
This especially happens when the judge views the aggrieved party sympathetically – far more likely for a well-respected businessperson who has received a seemingly disproportionate penalty for unintentional violations of the law, than a career criminal on death row.
The original authors of what? The original authors of the bills to tax expats actually did want these outcomes.
I actually disagree with the law, but the claim that the writers didn't intend for this is quite the stretch, as the law is extremely clear in the punishments, and if you read into the history, it's quite clear they wanted to punish people.
What may be a remedy by the court is if they believe the punishment is cruel or unusual or the fine excess. They may find that and strike down the entire law, but the law is certainly intended to do exactly this.
American government gets its power from the people. If the people, via their representatives, act irrationally, then the government is irrational. no government is going to be perfectly rational. That's kind of the entire point of our constitution. I would highly recommend reading the commentary written by its writers.
Appealing to the age of the constitution to defend the courts arrogating power which that constitution did not grant is complete nonsense. If you want the courts to have that power, pass an amendment. If you don't want to do that but still want the courts to be able to create law, then bringing up the constitution is pointless. You have already tossed it in the waste bin.
"rational" in this case meaning "unilaterally countermand the decisions of the other branches"
In practice the relative power and authority of different branches of government changes over time. The US constitution is now the oldest still operable founding document, and was constructed at a time when the king held extensive influence over British governance.
If we say that no branch of government is allowed to be rational, then we’ll need a constitutional convention sooner rather than later.