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Supreme Solecisms

And with the Advice and Consent . . .

THE CONSTITUTION was adopted to secure for the States domestic tranquillity: why, then, is it today the cause of dispute and dissent? The answer is easy to see: certain States, such as Nevada, have accepted the decisions of the U. S. Supreme Court as precedents in their own courts, thus rejecting the common law – discovered by a number of courts reconciling their decisions – which revealed to the civilized world that all men [that is to say, all actors] are equal.

It is easy to see also why Nevada did this: the State had seen domestic tranquillity dispelled by the desire to disturb the decision of the Supreme Court in Scott v. Sanford, and to put an end to the institution of slavery. However, what Nevada meant to say was, that the courts of Nevada should follow the decisions of the U. S. Supreme Court where the latter had jurisdiction. Even if the counties were unanimous in laying that mandate on their courts in 1865, they could not bequeath to their heirs any commitment other than one to the advantage of those heirs.

And the jurisdiction of the U. S. Supreme Court is not seriously objectionable. “The judicial Power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States . . . .” seems to give the Supreme Court carte blanche. However, the Congress does not have carte blanche to enact statutes: the enumeration of a power “To make all Laws which shall be necessary and proper” does not mean that Congress can enact any law that [it imagines] is necessary and proper; it means that even if a law is both necessary and proper, no body other than the Congress can enact it. It is true that Congress is allowed to punish crimes that violate the rights of the citizens of all the States, such as counterfeiting the current coin, –but the trial must be in the State where the act took place – meaning, obviously, that such crimes are to be prosecuted in State, not U. S., courts.

The power known as “judicial review” is nevertheless necessary. The Congress can only deliberate and agree: the fact that 435, or even 535, persons have agreed does not guarantee truth – until the agreement has been put to the test. And the power that tests the law against the facts is the judiciary: they have the test of coherence, is the decision in the case of Defendant D consistent with those of all prior defendants?

However, this power of judicial review has been spurned by the many other nations that have constituted themselves as republics. Why is this? Is it because they intend to legislate injustice, to convict innocent and guilty indifferently? Possibly – very plausibly – it is because it is so blatantly absurd for a tiny handful of unelected justices to review the statutes of the Congress if they proceed by majority. If all [reasonable] men understand the law, then all paid judges should be able to understand it.

Did the States indeed determine that the Supreme Court should proceed by mere majority? Read both the Articles of Confederation and the Constitution, and you find that the majority necessary to proceed is invariably specified –– two thirds to expel a member of Congress, three fourths to submit an amendment – except in three instances. The three are, for the jury in the trial of all crimes, for the States in convention, and for the judges of the Supreme Court. However, everyone knows how the criminal jury proceeds – unanimously: otherwise, one could not hold every member responsible for the verdict. And we know how the States proceed: “Done in Convention, by the Unanimous Consent of the States present . . . .” So we need have no doubt how the Supreme Court is to proceed: the idea that a tiny handful of unelected U. S. officers can, by mere majority, over-rule a Congress representing all the States is the grossest solecism.

Thus it is not the case –– as popularly supposed – that just one wrong-headed judge can endanger the republic. (Incidentally, it appears that the justices themselves grasp this fact: when they rule against the president, who de facto appoints judges, they succeed in reaching an unanimous decision.)

But is it true that the framers of the Constitution considered that it mattered little whether or not the appointees of the national government were well chosen? And that in such minor matters aristocracy was tolerable? This question has an answer. In the convention, Alexander Hamilton, an unashamed aristocrat, proposed that, in the lesser matter of appointments (as distinct from treaties) the president should be allowed the initiative, “subject to the approbation or rejection of the Senate.” And the delegates of the States disagreed: appointments, even as treaties, are to be made “by and with the advice and consent of the Senate.” When we see a conjunction twice over, we are not reading about just one act.

We are, then, in no doubt that the Constitution is, here as everywhere, democratic: the first word belongs to State officers. All that is necessary is to demand that our Senators do what we pay them to do and reduce the president to the status proper to an executive officer.