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 4

Part 3

Part 2

Part 1

The more I study Alexander Hamilton (and, yes, Thomas Jefferson) and the Early Republic, the greater my appreciation and respect for him grows. Too, the more canards are easily discarded…which begs the question why they are so readily perpetuated in the first place, but I digress.

Consider Hamilton’s letter of May 1790 to George Washington, urging the latter to veto Congressional Back Pay legislation. Because of the dire financial circumstances, during and after the Revolution, most that served in the cause had received little to no financial compensation for their efforts. Former soldiers in Virginia and North Carolina (though they were not the only ones, but the legislation in question arose specifically in response in to these particular soldiers) were selling the rights to the back pay owed them by the federal government for their service. Reasons varied: some distrusted the government would ever have the means to pay them; some were in dire financial circumstances themselves and required immediate cash; some were looking for a “get rich quick” scheme and bought and sold these back pay rights; and so forth.

Congress decided this sort of buying and selling of back pay rights left the original right’s holder, i.e., the individual soldier, prone to preying, unscrupulous speculators, so legislation was passed stipulating “where payment had not been made to the original claimant [the original soldier] or his representative, it could only be made to such claimant or to ‘such person or persons’[the so-called speculator(s)] who could produce a power of attorney, attested to by two justices of the peace of the county in which such person or persons resided, ‘authorizing him or them to receive a certain specified sum’” (p. 47).

One of the reasons Hamilton urged Washington to exercise his veto authority is he believed Congress had breached the separation of powers. Now, for someone that is supposed to be a “monocrat” and concentrator of sovereignty, faithfulness to the separation of powers should not be high on Hamilton’s list of priorities, but Holloway demonstrates that, in fact, it is. “Hamilton agreed that fraud, when ‘properly ascertained,’ invalidated a contract” (“contract,” meaning, the legal transaction of selling and purchasing back pay rights). Yet Hamilton argued the power of “ascertaining” fraudulent transactions resided within the judiciary because only in a legal proceeding can “the parties be heard and evidence on both sides produced.” Lacking the judicial process, “surmise must be substituted to proof, and conjecture to fact(p. 49). What Congress was doing, then, with its Back Pay legislation was usurping the Constitutional prerogative of the judiciary branch of government, at worst. At best, it was operating under laudable intentions, but without proof, to impugn an entire demographic of their motives.

The implications of Hamilton’s logic stand the test of time. Hamilton’s preoccupation with the sanctity of property (which I discussed in Part 2) and the devotion to separation of powers (discussed here) are just as applicable today as they were in the Early Republic. Hamilton was acutely sensitive to the undermining of the federal government. If one branch breached the separation of powers, in his mind the entire edifice would fall. And there’s a certain logic to such thinking. If the people don’t trust their government, they behave…well, let’s look at two examples. Hamilton’s fear with the Back Pay legislation was alienating any segment of the citizenry, especially after casting aspersions on said segment’s motives without a shred of evidence. Today, consider the court system – look how belligerent present-day Americans are toward the Supreme Court because it is legislating. And there’s nothing anyone can do about it. Anyways…. More reading.


I’ve changed the title and ceased referring to these posts as “reviews” because they aren’t properly reviews. Instead, I am now calling them “Commentaries.” I will write up a more traditional, summative review once I’ve finished the book.