by Peter Murphy
‘Call the case of Samantha van Eyck individually and on behalf of all those similarly situated, plaintiffs, versus United States, defendant,’ Maisie announced. ‘Your Honour, the case is listed for the hearing of the defendant’s motion to dismiss based on the statute of limitations. Counsel, please state your appearances for the record.’
‘Good morning, Your Honour. Dave Petrosian and Ellen Matthews for the defendant, the United States.’
‘Good morning, Your Honour, Kiah Harmon for the plaintiffs. In court with me is the lead plaintiff, Samantha van Eyck.’
‘Welcome to you all,’ the judge said, ‘and welcome to everyone in court. I see we have quite a crowd today. I’m pleased to see so many unfamiliar faces. It’s not often that the Claims Court commands such an audience, not often we have so many people interested in what we do here. It looks like we missed out on an opportunity: we could have sold tickets if we’d thought about it yesterday.’
There was some laughter from the press seats.
‘But I’m glad that the court is finally getting a chance to show off the work it does, and I’m glad you’re all here to see us in action. The only other thing I should probably say is to all you law clerks and interns I see out there from my colleagues’ courtrooms and from the Court of Appeals for the Federal Circuit: I hope you all got your judges’ permission to leave your stations and come to my court. I’m glad you’ve come, but I don’t want to catch hell from the other judges, so if you haven’t done it already, fire off an email now and at least let your judge know where you are.’
More laughter, this time from the law clerks and interns. But I was sure Tomorrow needn’t have worried about that. I would have put money on the fact that every judge in the building had ordered his or her clerks and interns to invade Tomorrow’s court and bring back a first-hand report of the proceedings to their chambers. The judges would have been here themselves if they weren’t so busy with their own work. In fact, having seen the crowd, I was slightly surprised that the other judges hadn’t called a recess for an hour or two so that they didn’t have to miss the fun.
‘Now, Mr Petrosian, this is your motion.’
‘Yes, Your Honour. Before I begin, may I ask how much time the court will allow counsel for oral argument? Will it be the usual twenty minutes for each side?’
If there hadn’t been so much going on before court began, I would have confirmed this with Maisie before we started. In most cases in the Claims Court, there’s no reason to ask. Twenty minutes is the rule, and if the judge has read the papers and your brief – which in the Claims Court you can usually take for granted – that’s about eighteen minutes longer than you need. If you want longer, you are supposed to ask for more time in your brief, though most of the judges aren’t too strict unless they have an exceptionally busy day, and they don’t call time on you for taking more than your twenty minutes unless you are repeating yourself or rambling on pointlessly. In her brief, Kiah had asked for an hour and a half, emphasising the unusual nature of the case, but I hadn’t seen any ruling from the court. It wasn’t the time I was concerned about; it was the implications of Judge Morrow’s decision.
I was hoping that I wouldn’t need more than twenty minutes. My pitch was that the statute of limitations was six years; the plaintiffs had missed the deadline by quite a margin; and whatever the Constitution said about the validity of the debt didn’t alter the fact that the Claims Court had no jurisdiction to adjudicate on a 200-year-old claim. If the judge agreed with me, then whatever constitutional arguments Kiah had raised in her brief weren’t really relevant, and we didn’t need to get side-tracked into exploring them in detail. I didn’t need twenty minutes to say that, and Ellen and I, while admiring Kiah’s scholarship, had convinced ourselves that this was the right way to look at the case. So if Judge Morrow was happy with twenty minutes a side, I figured that he was provisionally leaning towards the government and Kiah was going to have an uphill struggle to change his mind. On the other hand, if he gave her an hour and a half, I figured that he might have been seduced by the constitutional arguments and was going to accept her invitation to hold a law school moot court on the subject of Article Six of the Constitution. The answer to my question was not the one I’d hoped to hear. In fact, it was worse than my worst-case scenario.
‘You may have noticed, Mr Petrosian, that I have no other matters listed in my courtroom today.’
‘Yes, Your Honour.’ I had noticed, but I hadn’t thought about it long enough to draw any conclusions. I was drawing them pretty fast now, but even if I hadn’t, Tomorrow was going to enlighten me.
‘That’s because I have deliberately left my list for today empty except for this case. I think it would be highly undesirable to place time limits on argument in a case such as this, in which the court may have to decide questions of importance involving our Constitution, questions that may well come before a higher court one of these days. I’ve read the briefs filed by both sides, which are well-written and helpful, but I have a lot of questions, and I’m going to need counsel’s help to answer them. So I’ve decided to devote as long as necessary to this motion. If we need to take all day, we’ll take all day. I want both of you to say whatever you want to say. Don’t worry about time. Focus on the case.’
I saw Ellen looking at me with raised eyebrows. I nodded, hoping to convey an air of confidence. I had my notes in front of me. I wasn’t going to panic. There was no need to change our strategy just because the judge had some questions he needed answers to. Our position was that this was a simple procedural question, and that’s how I would deal with it.
‘Your Honour,’ I began, ‘assuming that Jacob van Eyck made the loans in question in the period 1777–1778, and further assuming that he was never repaid, the plaintiffs are out of time to bring an action in this court to recover the debt. The period of limitation is six years. Now we can argue, as Miss Harmon does in her brief, about whether they’re out of time by 200 years or more, or as little as 130 or so years. It doesn’t matter. The period is six years, and that period is long gone, and there is no constitutional issue in question here.’
Judge Morrow was shaking his head.
‘But if Miss Harmon is right, and the Revolutionary War debt is guaranteed by the Constitution itself without any limitation of time, how is that consistent with a statute of limitations?’
‘It’s perfectly consistent, Your Honour. The fact that the debt itself continues to be valid doesn’t mean that a plaintiff can sue in this court to recover it. This court has no jurisdiction over cases where the claim accrued more than six years before suit is filed.’
‘Well, if the plaintiffs can’t sue here – which is where Congress says you’re supposed to sue the government for claims such as this – where can they sue?’
‘I’m not sure they can sue anywhere, Your Honour. Frankly, that’s not our concern. Our point is that they can’t sue in this court, which is what they have chosen to do.’
‘So they have no remedy if the government fails to repay the loan, even though the Constitution declares the debt to be valid without limitation of time? Is that what you’re telling me?’
This wasn’t how I’d wanted the argument to go. I would have preferred to stay away from the moral aspects of it. Whenever Ellen and I had played lawyer and judge in preparation for the argument, with Harry sitting there and interjecting comments from time to time, we had always agreed that this wasn’t the way we wanted to portray it. It wasn’t that we weren’t right, legally speaking, but it wasn’t the most attractive position for the government to take: the van Eycks had a perpetually valid debt, but no way to claim repayment. We had decided to offer Tomorrow the only other possibility that made sense, one which didn’t come with a statute of limitations.
‘It’s open to the family to petition the Congress for the redress of grievances,’ I replied. ‘They can take it up with a member of Congress or a senat
or, and ask for legislative relief on behalf, not only of the van Eyck family, but any other families who may have similar claims.’
‘According to Miss Harmon’s brief, they’ve been doing that periodically for the best part of 200 years, and they’ve gotten nowhere.’
‘We don’t know how well it was presented to Congress on those earlier occasions, Your Honour. They may have failed simply because they didn’t have an attorney such as Miss Harmon working with them in the past. If they were to try again today, with an attorney of her ability –’
I turned towards Kiah, who was giving me an ‘oh, please, spare me’ look. The judge interrupted me in mid-sentence.
‘If they were to try again today, we all know what would happen, Mr Petrosian, don’t we? They would be stalled and rebuffed. If they pressed hard enough, eventually it might find its way into some congressional committee, but there wouldn’t be much an attorney, whether it’s Miss Harmon or anyone else, could do to move it along. Even assuming it made it into committee, it would probably die there; and even if it didn’t die there, it would then have to find its way into some piece of legislation that had enough bipartisan support to pass both the House and the Senate; and then, years later, assuming the President didn’t veto it, maybe – just maybe – the family might be awarded a few dollars that wouldn’t affect the budget too much.’
He paused.
‘I’m not sure I would call that a remedy. Forgive me if I sound cynical, Mr Petrosian, but I’ve spent much of my life in public service, and I’ve been around that block a time or two myself.’
Tomorrow was playing to the gallery – something I’d never imagined was part of his repertoire – but he wasn’t far off base. Legislatures the world over know exactly how to bury troublesome petitions for the redress of grievances, and ours is no exception. And I wasn’t unsympathetic to the point he was making; I hadn’t been unsympathetic when Kiah had made it to me. But that didn’t mean we weren’t right in law.
‘Your Honour put it to me that the family has no remedy outside this court,’ I replied. ‘I’m only pointing out that there may be a remedy. But frankly, Your Honour, even if it there isn’t, that doesn’t mean that this court has jurisdiction when the statute has run by more than 200 years.’
Judge Morrow was shaking his head.
‘So, the answer to my original question is “yes”,’ he said. ‘You’re saying that they have a valid debt but they don’t have a court in which to sue for it. And because this court wasn’t even in existence when the claim accrued, they never did have a court to sue in. It’s not a great advertisement for American justice, is it, Mr Petrosian?’
The sensible answer to that, of course, was that it wasn’t for me to say. Or, I could have pointed out that it’s for Congress to make the law, and if Congress agreed with the judge, perhaps they could take a fresh look at it. Those would have been the sensible answers. Instead I said: ‘No, Your Honour, I guess it’s not.’
The moment the words had left my mouth, I knew as if by revelation that I would be hearing them again on the Six O’Clock News. But they seemed to mollify Tomorrow. He was silent, nodding, for some time.
‘Well, you’ve made the government’s position clear, Mr Petrosian. I think I’d better hear from Miss Harmon, and I’ll come back to you if I have any more questions later.’
‘Yes, Your Honour.’
I sat down. I realised for the first time that I was sweating. Ellen was grinning at me. She leaned over to whisper in my ear.
‘A government lawyer caused a sensation today by admitting in court that the government’s failure to provide a remedy –’
‘Yes, thank you, Walter Cronkite,’ I whispered back.
‘But you were right,’ she said.
34
‘He has a point, Miss Harmon,’ Judge Morrow began, ‘doesn’t he?’
‘He has a point, Your Honour,’ Kiah replied. ‘Just not a good one.’
There was some laughter around the courtroom. Tomorrow smiled.
‘That depends on what you mean by “good”, doesn’t it? Mr Petrosian concedes that the government’s position is somewhat unattractive, but he says that’s irrelevant if the law is on his side. Why is he wrong about that?’
‘He’s wrong because, if he’s right, then Congress, by enacting a statute of limitations, has effectively repealed an article of our Constitution, the first paragraph of Article Six. Congress can’t repeal an article of our Constitution; the President can’t repeal an article of our Constitution; this court can’t do it; and for that matter, even the Supreme Court can’t do it. In fact, not even Mr Petrosian can repeal an article of our Constitution.’
This drew some loud laughter. I grinned. I deserved it after the cheesy faux compliment I’d paid her.
‘Well, there’s no arguing with that,’ the judge countered, ‘but why do you say they are repealing it?’
‘Because if they’re right, taking account of the statute of limitations, every claim under Article Six was forever barred as of March 3, 1893, at the latest.’
‘Why is that a problem?’
‘Because Article Six is not limited in time. It’s an indefinite constitutional obligation, and Congress can’t place a time limit on it retrospectively. Your Honour, maybe I should start with what the Founding Fathers were trying to do?’
‘It seems clear enough what the Founding Fathers were trying to do,’ Tomorrow replied. ‘They were telling everyone how important the war debt was, because they wanted to create confidence that the government would honour its obligations.’
‘Yes, Your Honour,’ Kiah replied, ‘but they were doing a lot more than that. They were trying to make sure that the debt was in fact repaid in full. That was something they couldn’t control. They couldn’t do it themselves. The country didn’t have the money at that time. We were essentially bankrupt. The currency was almost worthless. They knew it would be a long time before America became strong enough economically to pay the debt, and they knew there would be a temptation for future politicians and bureaucrats to find excuses for not paying.’
She paused to glance in my direction.
‘And how right they were.’
Further sniggers around the courtroom. I wasn’t entirely sure I deserved that one.
‘If we look at the language of the predecessor of Article Six, which was Article Twelve of the Articles of Confederation, adopted on March 1, 1781, they said this: “All bills of credit emitted, monies borrowed and debts contracted by or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for the payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged.”
‘I invite Your Honour’s attention particularly to the words, “The United States and the public faith are hereby solemnly pledged.”
‘Then we go to the first paragraph of Article Six of the Constitution, adopted on March 4, 1789, which is the provision we’re concerned with: “All Debts and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The magic words there, Your Honour, are, “Under this Constitution”.
‘Your Honour, these provisions were discussed in great depth before they were adopted. There was a high level of agreement about the proposed constitutional provision. We’ve covered this in our brief, beginning at page twenty-two, so I needn’t take Your Honour through it all. Among those who spoke and submitted drafts of the proposed provision were Mr Randolph of Virginia, Mr Paterson of New Jersey, and Mr Pinckney of South Carolina. The House appointed a committee of five members to prepare a final draft for approval.
‘But, Your Honour, this is important – this is at page twenty-six of our brief. Some members, includ
ing Mr Ellsworth of Connecticut, thought that the provision was unnecessary. He said: “The United States heretofore entered into engagements by Congress, who were their agents. They will hereafter be bound to fulfill them by their new agents.”
‘But Alexander Hamilton reminded the delegates that, in his words, “Contracts between a sovereign nation and individuals” – he means its citizens – “are binding only on the conscience of the sovereign and have no pretensions to a compulsive force.” In other words, he was worried that future politicians might be less scrupulous than Mr Ellsworth and himself.
‘So, enshrining in the Constitution itself a duty – a duty, not a mere power – to repay the public debt was the only way in which to guarantee that the United States would one day meet its obligations.’
Kiah paused for several sips of water.
‘Hamilton was very aware of the need to ensure that later governments didn’t renege on their obligations. He couldn’t foresee what economic and political pressures, what temptations to renege later governments might face, but he knew it was a real danger. In his second Report on the Public Credit, he wrote: “It can hardly happen that all the branches, or parts of government can be infected at one time with a common passion, or disposition, so manifestly inimical to justice and the public good, as to prostrate the public credit, by revoking a pledge, given to the creditors.” But in case they did, there was only one remedy. If you made the obligation part of the Constitution itself, you took it out of the hands of the government altogether, so even if all three branches of government were tempted to avoid responsibility, the debt remained valid and must be paid.’
Judge Morrow nodded.
‘All right, Miss Harmon, assuming I’m with you so far, you’ve established a moral case for making the government pay. But where do you get your legal case?’
