The tale has oft been told, of how the great Austrian-born
logician Kurt Gödel obtained his
American citizenship. In
those days, you had to pass a bit of an exam about American laws and customs,
and the diligent logician took this assignment very seriously, studying the
Constitution in depth. And on the
morning when Einstein (his colleague at the Princieton Institute for Advanced
Studies) was to take him in to Trenton to be examined, Gödel announced that he had discovered a
logical flaw in the Constitution, whereby, under certain circumstances, America
could become a tyrrany.
Einstein and Gödel’s other handlers all impatiently shushed him up. The political situation was somewhat
tense; Gödel originated from a nation with which the United States had lately
been at war; and it simply would
not do for a gnomelike foreigner with a funny accent to explain to the local
official in Trenton that, just as any formal system of a strength sufficient to
handle the natural numbers suffers
from Unvollständigkeit, so too might this nation soon see columns of
jack-booted … Anyhow, Gödel held his tongue and got the citizenship, and his Constitutional
discovery was lost to history.
Now, in the newspapers on this morning’s breakfast tables, appears word of a
situation quite as extraordinary, and which, by an unobtrusive but crucial legal
loophole -- if indeed it really exists -- could result, not in Tyranny, but in
Anarchy.
[We are holding off on reporting this until the Shura Council of the
World of Doctor Justice shall have concluded their deliberations. They are in session as we speak.]
 |
| Plenary congress of the WDJ Board of Solons |
[Noon update: The muftis have returned from their labors, with this result:]
There will always be somebody, somewhere, who disagrees with
some aspect of the way things are. And there usually will be some judge, in some
place, at some moment (possibly during a fit of temporary insanity) to
agree: that I shouldn’t have
to clean up after my dog because pooch poop is good for sidewalks; that paper money is not legal currency;
that Klingon deserves legal status in these United States, with court-ordered
interpreters to be provided or the defendant goes free; that Evolution never happened; that
everyone should rush out and get a sex-change. And in most cases, the litigant will lose on appeal, at
least eventually.
But in cases where a constitutional principle is clearly and
uncontroversially involved -- let us posit, all parties agree upon this -- the
matter can be referred straight to the Supreme Court. And in the examples before us, from this morning’s
headlines, the Supreme Court agreed to hear the cases. In such instances, normally the Justice
Department will send some representative to play the role of defending the law
of the land. That’s just the way
the Supreme Court works: You’ve
got guys in red jerseys arguing P, and guys in blue jerseys arguing not-P.
But now a wildcard pops up out of the deck. The current Justice Department,
the one in office at this particular instant (and again, possibly after a wild
night of ibogaine abuse, that part is unclear), lets it be known that it would
prefer to stay in bed rather than defend the government’s side of the case, on
this issue. At which point a
voice (of uncertain origin) bellows from the wings, that in that case, the
Supreme Court lacks jurisdiction! (That is how these cases are being
reported on NPR.) Which means, the original litigant wins by default,
just as though it were a Little League game where the Wellfleet Woodchucks
failed to appear.
Now, the two cases in question happen to involve Gay
Marriage; but nothing
in the logical structure outlined above
hinges upon this. You
could challenge absolutely anything -- the ban on heroin, say, or the refusal
to allow hamsters to have the vote -- and win by a sort of pocket veto.
The argument is extraordinary. How can the Supreme Court “lack jurisdiction” on a
Constitutional question?
It’s like saying that MacDonald’s cannot sell hamburgers. It’s what these guys do.
It is truly a Through the Looking Glass kind of situation,
but one which has attracted little public commentary, in part because the
particular cases at issue involve SEX, so that is all the populace can focus
on, larger principles left to the side.
In the present case,
what would happen is that, at the urging of a couple of lesbians
somewhere in New York, and a wink from the AG, three thousand years of
Abrahamic morality, law, and custom -- and arguably, the foundation on which
our civilization precariously rests -- should be overturned, and dumped into the burn-bag. “Meh!” you retort, “Who cares?” But, note that, logically, anything is fair game. Social Security?
Unconstitutional. A
standing army?
Unconstitional. Laws
against polygamy? Unconstitutional.
True, a hitch could arise in cases where the rule being
overturned is actually explicitly written in the Constitution itself -- say,
the enfranchisement of women, or making slavery a no-no. But those could be left
standing: all you need to do is to
overturn the individual laws that enforce
these principles (as, indeed, Republicans in the current Congress have done, as
regards enforcement of certain regulations).
Note that this absurd state of affairs can come about based
upon the whim of just one man, and an
unelected offical at that: the
Attorney-General, who has the authority to order DoJ lawyers not to argue the
case. True, the President
could overrule him; but there could
be, and indeed have been cases in
which the President had become incompetent yet was not removed from office (Wilson
after his stroke; Reagan during
his Alzheimer’s years).
~
We solicited comments, and received these.
From a lawyer/mathematician:
There is a "case or
controversy" requirement. If a litigant demurs there is no case. The Court
lacks jurisdiction over arguments resolved by inaction of one party.
That's true at any level. If the only duly constituted litigant rolls over,
someone else (with standing) would have to take up the cudgel. There is
subject-matter jurisdiction, for sure.
From a doctor of Canon Law:
I would argue that it is the DOJ's
job to defend the law of the land, even if collectively the people making up
the DOJ (or at least the decision makers appointed by any current
administration) like it or not. This is analogous to a public defender doing
his or her job--mounting as vigorous a defense as possible--even if he or she
ultimately suspects the person they are defending is guilty.
That is how the system is designed.
The laws of the land were created by elected representatives making laws. If
you don't like the laws, elect representatives who will change the laws. But
the DOJ can't decide to yawn and stay home as a back-door way to overturn DOMA.
The argument for what DoJ should do, by analogy with the public defender, is a good one, but
does not touch upon our logical point: If some individual, such as the AG, does something you
rather wish he hadn’t, does the law helplessly hoist with its own petard -- its
own inner logic turning out to be, in this instance, an infernal machine?
Our colleague continues with an apposite literary reference:
There was a brilliant presentation
of this tension in an episode from Star Trek: Next Generation. Commander Data,
an android, whom his colleagues consider a moral agent, has been ruled to be
only a machine. His friend Commander Riker is under orders to take the side of
prosecutor proving the case that he is only a machine. And if he doesn't mount
a vigorous defense, he will still lose his friend. And he does his duty with
chilling responsibility:
.
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