By: Xavier Blackwell-Lipkind

We already know that corruption and selfish political interests can warp the system of checks and balances, a system which assumes moral impartiality and independence of thought. 

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We already know that judges are, to some extent, inevitably partisan.

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We already know that the criminal justice system is subjective and riddled with discrimination.

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We already know all that. 

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So let’s consider some new scenarios, some strange logical holes in the fabric of our system of government. These scenarios are unlikely to ever occur, but they nonetheless serve as interesting thought experiments.

 

First, let’s consider the following hypothetical executive order:

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Executive Order No. 14431

The President

Executive Order

Authorizing the Reorganization of the Federal Government

I hereby declare the Constitution null and void and therefore abolish the federal judiciary and the federal legislature. Any further acts by Congress or the courts will be considered a breach of law. The sole authority to enact national policy is vested in the President of the United States.

President P. President

The White House,

April 1, 2100.

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What if this executive order were actually signed into law by some future president? Presumably, it would be quickly overturned by Congress or overruled by the courts. But would these actions be legal? After all, Congress and the federal courts can only exist after the executive order is nullified. Therefore, they lack the authority to repeal the order. From a purely logical standpoint, nothing can be done.

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This situation is, of course, absurd. Its implications, however, are not. The point is that it is foolish (and impossible) to abide perfectly by any set of laws. No matter how carefully the Framers set up the three branches of government, the system is not without its logical glitches. We can conclude that politics is sometimes necessarily subjective: it doubtless feels right to overturn this executive order, even if no one has the objective legal authority to do so.

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Such an argument reveals the folly of constitutional originalism or strict constructionism: though the Constitution establishes clear limitations for executive power, it does not address what is actually meant to be done when a despot—like the hypothetical President P. President—circumvents the system of checks and balances. After all, impeachment is only an option if Congress exists.

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Similarly, the Constitution contains no explicit mention of the executive order; the right of a president to issue executive orders stems from a subjective interpretation of the text. Thus, the Constitution is a blueprint, and there are scenarios—scenarios far more plausible than the above—in which that blueprint must be modified or adapted. A more subtle example is the inevitable change in cultural and societal values. 

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James Monroe once compared the United States to a “new house.” Though the Framers tentatively placed some furniture in this house, they understood that the most reasonable layout might vary over time. Thus, the so-called “living tree doctrine” appears most appropriate.

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For now, let’s move on and explore another theoretical situation. Imagine that Congress has expanded the Supreme Court. (This part of the scenario is in fact quite possible: a number of 2020 presidential candidates have argued for such a change.) There are now fifteen justices, not nine, on the Court. 

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Now imagine that a new case reaches the Supreme Court. The plaintiffs argue that Congress’s actions are unconstitutional. (In the 1930s, a similar debate took place, but in Congress and not in the courts. Franklin D. Roosevelt introduced a court-packing plan that was unpopular with most of Congress and ultimately unsuccessful.) Imagine that the Court is convinced by the argument that court-packing is unconstitutional, and suppose that eight of the fifteen justices side with the plaintiffs. 

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What now?

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The Supreme Court has ruled that its new structure violates the Constitution, but it has delivered its ruling using that very structure. Is the decision valid? Does the size of the Court return to nine justices, or does nothing change? 

Again, our gut tells us that the ruling should be respected and that the Supreme Court should return to its previous size. But is logic on our side? There is no definitive answer, for like the previous scenario, this thought experiment is a classic catch-22.

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A number of legal scholars assert that there is always a legally “correct” answer. Ronald Dworkin, for example, famously argued in his Right Answer Thesis that legal cases inherently possess a “unique right answer.” However, we have seen that there are times when legal objectivity and logical analysis fail. These instances are rare, but they exist, and only one exception is needed to disprove a rule. 

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Perhaps, then, it’s time we acknowledge that our political system is inevitably imperfect. That’s not the Framers’ fault. Politics is just messy sometimes. After all, the Framers envisioned “a more perfect Union,” not necessarily a perfect one.

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