Confirmation logjam

[David Cruz]

On Sun, 20 Oct 2002, Eastman, John wrote:

> [snip]
> First, it is not clear to me that "public Ministers and Consuls" would
> not include the heads of departments.

Well, given that the phrase in Article II Section 2 is actually "*other*
public Ministers and Consuls" (emphasis supplied), one might well think
that one should apply the maxim noscitur a sociis, that a word is known by
the company it keeps, to understand all of these personages to be
representatives of foreign governments.

Moreover, I had always thought that to be the ostensible "original
understanding" of the phrase.  Otherwise, why shouldn't William Marbury
not have counted (according to the allegations of his suit) as a public
Minister by virture of his (claimed) position as a Justice of the Peace
for D.C.?  And yet if he did, then his suit presumably would have fallen
within the original jurisdiction of the Supreme Court as allocated in
Article III, Section 2; Section 13 of the Judiciary Act would not have
been unconstitutional as construed and applied by the Court in his case;
and history might well have looked very different.

Furthermore, even limiting "public Ministers and Consuls" to more august
officials such as the heads of departments still would leave distinct
structural problems.  Among the duties imposed by Article III, Section 3,
the President "shall receive Ambassadors and other public Ministers."
Yet, if that latter term had domestic application, the Constitution would
be imposing a duty on the Chief Executive to receive his own subordinates,
which to many would seem palpably preposterous.

[My apologies for not recalling which of the scholarship on Marbury v.
Madison first called these points to my attention.]


David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071  U.S.A.