The Neil Gorsuch Pick

It really befuddles me why the Republican-controlled Senate’s refusal to give Merrick Garland a hearing is so controversial. Even historians and legal scholars are foaming at the mouth over “constitutionalists” such as Ted Cruz acting in such an “unconstitutional” manner. All in the name of winning back the White House and nominating someone such as Neil Gorsuch.

The cause of my confusion is that there is really nothing to be confused about. The Constitution is quite clear on this matter. The United States government functions according to separation of powers and a series of checks and balances. The Senate confirmation process for the Supreme Court is part of the check on both presidential and judicial power, which necessarily entails misuse, overreach, and activism, among others. Article II, Section II, Clause II of the Constitution states:

The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law….

There is nothing that requires the Senate to, A) give a nominee a hearing, or B) confirm said nominee. In fact, quite the opposite. Indicated Gouverneur Morris, “As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.” In other words, the “buck stops” with the President in selecting quality individuals for such important positions, in Harry Truman’s words, but the Senate would assure the soundness of any nominee.

Now, this arrangement was ultimately implemented with a radically different conception of the Senate than exists today, and that seemingly makes a difference. The Senate was originally designed to comprise the nation’s best, most educated, most cultured, most worldly (in the sense of “knowing the world,” not materialism) and be a bulwark against the populism of the House. However, with the direct election of Senators today one can plausibly make the argument this intention has ceased to be (if it ever did, except in theory). Perhaps this explains the nettlesome nature of this aspect of the Constitution, as well as others such as the Electoral College; meaning, we are dealing with a system of government intended to operate one way, according to philosophies and mechanisms modern Americans are aghast over, yet, their vestiges remain in altered form. Because their vestiges remain, but only in altered form, there is a dissonance between their original design and purpose, and how they operate, or are perceived to operate, today.

Hamilton versus Jefferson: Commentary, Part 12

In Chapter 10 we find Alexander Hamilton’s thorough rebuttal to Thomas Jefferson’s critique of his programs. Again, there is much that can be said as a result of Hamilton’s prolific intellect and passionate defense: his explanation that, no indeed, he was not a proponent of perpetual debt but instead long argued “’the creation of debt should always be accompanied with the means of extinguishment’(p. 167); or how for the sake of justice assumption of state debts was an example of interference in the “natural currents” he had previously spoken of as the ideal – because the Revolutionary War was a national conflict and the verity certain states bore the brunt of that conflict worse than others meant the burden of paying off the financial obligations associated with it should be shared equitably in the name of solidarity to ensure the long-term viability of the nation produced by the outcome of the Revolution (p. 170).

But two other aspects of Hamilton’s riposte drew my attention. The first is a contrasting fear of Hamilton’s than that of Jefferson. Holloway accurately notes Jefferson believed encroachments “of the state governments would tend in the direction of anarchy, but would also be self-correcting, while the encroachments of the federal government would be in the direction of monarchy, which would not be self-correcting” (p. 178). Meaning, because the state governments are a plurality, they suffer from emotion and fail to behave according to reasonableness and prudence. However, because they’re a plurality they can deliberate and cancel one another out. In other words, it was Jefferson’s contention the states are another legislative body, in a manner of speaking, and thus, “self-correcting.” The federal government on the other hand, because it is one will tend toward authoritarianism and because it is one does not have a check on it in the way the states do and will morph into monarchy as a consequence (it’s important to understand Jefferson did not possess the classical/traditional comprehension of monarchy as a positive form of government – for Jefferson there was no distinction between a monarch and a tyrant, whatever classical/traditional philosophy and theology posited antithetically). The natural tendency in such a relationship was for power to coalesce within the federal government. Because of this, it was “necessary to pull hard in the other direction”; for Hamilton though, “this was the reverse of the truth” (p. 178).

I submit the proper context to frame this push and pull between the state and federal governments is against Hamilton and Jefferson’s views on human nature. If one fell within the Hamiltonian camp, the “plebiscite” could not be trusted. The more that power was dispersed among the irrational, sinful, selfish masses without a firm, guiding hand at the helm in the form of the federal government (the analogy of the captain of a ship is always useful for this), the worse off the nation and yes, the respective states, were. Again, as I’ve made clear (here, here, here, and here), Hamilton and the Federalists were not looking to assume all power and authority within the federal government; instead, they merely desired a “glue” to bind the states together, united toward a greater good and a common cause, and check against the short-sided, irrational passions of the masses. Conversely, if one fell within the Jeffersonian camp any semblance of authoritarianism was unacceptable and corrosive to the “true” spirit of the American Revolution. It’s as close to a libertarian philosophy as can be found historically. Jefferson and the Republicans countered Man isn’t sinful, selfish, and short-sided and only required “freedom” and disentanglement from metropolitan designs to achieve true fulfillment and flourishing.

The second aspect that peaked my interest was Hamilton’s astute suggestion Jefferson was dogmatic and because of that dogmatism Jefferson and his disciples “‘take it for granted that their constructions of the Constitution are right and that the opposite ones are wrong, and with great good nature and candor ascribe the effect of a difference of opinion to a disposition to get rid of the limitations on the government’” (pp. 176-177). In short, Jefferson and the Republicans are benignly infallible and Hamilton and the Federalists are sinister malefactors who would bring ruin upon the humble American plebiscite. But as Hamilton noted, such matters are rarely so stark. “‘Some things’” the federal government indisputably had “‘a right to do,’” while other things were indisputably reserved to the states, yet there was a “‘a good deal of middle ground, about which honest and well-disposed men may differ’” (p. 177).

I was struck because this is a pattern which American politics finds itself in throughout our history: demonizing of the opposition. It might even be considered a tradition in some quarters. There are instances wherein the opposition is genuinely in the wrong, but if the approach to criticize short-circuits meaningful discussion between the two sides, around and around we go. Look at the present-day iteration of the abortion issue. The champions of abortion are objectively in error. Nevertheless, that isn’t a fruitful foundation upon which to engender constructive back-and-forth that one hopes would result in change. Such an approach is the dogmatic equivalent of what Jefferson perpetuated. A more productive means would be to acknowledge that “women’s health” is a sincere concern, something both sides agree is important. From that common ground, the pro-life, objectively correct side, is now in a position to explain the real harm abortion causes women and the proper methods to enact authentic health of women. This is something the pro-life side does, but because the starting point is an antagonistic and dogmatic one it typically falls on deaf ears. Similar sentiments could be said more broadly about the present-day Republican and Democratic Parties. So too with Jefferson, claimed Hamilton.

By the 1790s there wasn’t much shared sentiment between Alexander Hamilton and Thomas Jefferson, yet there was some room that could perhaps have proved fertile for active engagement between the two, without intermediaries. From a counterfactual standpoint, it is interesting to speculate what could have been had Jefferson in particular acknowledged in the early 1790s that Hamilton, in truth, was not seeking to institute monarchy – that both equally desired to see the success of the Constitution and the stability of the country. Or Jefferson concede that Hamilton and the Federalists were not corrupt simply by virtue of the fact some of them were affluent (or at least well-to-do) and were friendly with and encouraged “big banks,” business, industry, and the like. Likewise, it would have behooved Hamilton perhaps not to treat Jefferson and Republicans as “jealous” individuals who would deliberately whittle away the federal government piece by piece until all that remained was a (very) loose confederation of (independent) states.

The lesson to draw is to see the laudable intent in the political other and discern that common ground. Unless one uses politics to entirely liquidate the opposition (literally) the only way to bring about positive developments is to either, 1) persuade of the correctness of a position, which is nigh impossible if the starting point is antagonistic, or 2) compromise in that “middle ground” where “honest and well-disposed men may differ,” which again is realistically only possible from a magnanimous starting point.