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Five-to-Four Fallacies

ONCE AGAIN we see the Judiciary Committee of the Senate reacting against the president’s nominations – re-nominations – for judgeships in the U.S. courts. We see cold-blooded killings in the residence of a U. S. judge. Are these not strange, peculiar, events, considering that the Constitution was adopted to secure domestic tranquillity? Do we not need to look, quite hard, at the courts of the U.S?

Advice and Consent

Our obvious first question is, how can the president be sending anything to the Senate – what we expect to see is, that the representatives and senators send bills, resolutions and so forth to the executive? Are appointments different?

Why should any measure start in the Congress? Because two heads are better than one, three are better . . . : And this is likely to be true in making appointments: usually, someone who is equal to holding an office may be well known in one or two States but little known in others, it is probable that two or three or even more good [wo]men will be present in the States. Why not give the president the chance to choose between them?

And this is precisely what the Constitution prescribes: the president merely nominates one among those whom the Senate has advised. But, to emphasize the proper relationship between the many and the few – between the creators and the creature – the last word is reserved to the Senate: they not only advise but also consent.

Is it merely pedantry to insist that advice and consent are distinct? It is not: the words are, “by and with the advice and consent” – two conjunctions require at least two subjects. And there is no question that the Convention meant what they said: Alexander Hamilton, an avowed aristocrat – he advocated giving the president very much the same status as the king of England – proposed that, in the matter of appointments, rather than treaties, the president be allowed to act “subject to the approbation or rejection of the Senate” (just what we see today!) but the States would not allow the initiative to pass to the executive. Why? Because the first, most important, word belongs to the many – in a democracy.

The Power of the Supreme Court

But is it true that the choice of every single justice is important? The ordinary understanding is that we have a government of law and not of men – surely no single man can change the law?

The reason why each appointment is critical is that the opinion prevails that decisions are evidence of law even if made over a dissent, – that a mere majority of the justices can create a precedent. Why do we believe this? Read the Articles of Confederation, read the Constitution – both of them are meticulous in spelling out the majority required to proceed: nine States to ratify the Constitution, two thirds to expel a member of Congress, three fourths to ratify an amendment. Except that there are three cases where no majority is specified: for the jury in the trial of “all crimes,” for the States met in convention, and for the courts of the U. S.

However, every citizen knows how the criminal jury proceeds – unanimously: were it otherwise, every individual juror would not be responsible for the verdict. And we know how the several States proceed: “done in Convention, by the unanimous consent of the States present.” (Remember, it was “the Unanimous Declaration of the thirteen united States:” an adjective was dignified with a capital letter!) How otherwise, then, should the courts proceed?

Thus it is a solecism to suppose that there can be a “law” which some fraction of the U. S. judges – let alone the citizens – do not understand.

The Unimportance of the U. S. Courts

Many of the States, it seems, treat U. S. decisions as precedents in their own courts (Nevada, indeed, requires its courts so to do.) However, it is desirable to notice that the U.S. courts have a characteristic mode of failure: they fail to ascertain whether or not they have jurisdiction of the cases filed with their clerks. Their jurisdiction is quite obviously appropriate: “admiralty and maritime jurisdiction; . . . controversies to which the United States shall be a party; . . . controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming land under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens or subjects . . . .”

Observe particularly that the U. S. courts have no – no – criminal jurisdiction. True it is that Congress can punish treason, piracy, and counterfeiting of the current coin – crimes against the citizens of every State – but the criminals are to be tried in State courts: why else would it be demanded that the trial be in a particular State?

III, 2 [3] The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

Nor do the U. S. courts have any jurisdiction in “civil rights” cases, except that naturalization (as distinct from immigration) is a U. S. power.

I, 8 [4] [The Congress shall have power] To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States:

The power of the Congress with respect to immigration is limited to prohibiting [all] immigration – as opposed to admitting particular persons.

I, 9 [1] The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, . . . .

Thus the jurisdiction of the U. S. courts plainly and simply does not include any matter that would arise in a State court.

The Original Law

What would the courts of Nevada do if there were no U. S. precedents? The judges of the States are expected to follow the time-honored method of stare decisis, i.e. following one another’s precedents – all men are equal, even if they live in different States. (In case it be necessary, I will explain that men means actors, competent persons, of either sex.) And if all the decisions were not inconsistent, then it would be perfectly plain how it is that a tiny handful of judges can be competent to construe, and even strike down, a law made by numerous legislators representing all the counties of a State.