‘Anything else, Miss Harmon?’
Kiah paused for some seconds.
‘Just this, Your Honour. In Marbury v Madison – the citation’s in our brief – the Supreme Court said, “It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it.” That’s part of the principle that the Constitution is the supreme law of the land – and I don’t remember Your Honour wavering on that yet.’
Brilliant. It was said respectfully, and Kiah had the judge, as well as the courtroom, laughing quietly with her.
‘But if you go with Mr Petrosian here, you’re treating the first paragraph of Article Six as without effect. And the first paragraph of Article Six has never even been interpreted judicially, not once since March 4, 1789. If you look at all the ink that’s been spilled, all the annotations on the other articles of the Constitution, and the amendments including the Bill of Rights, that’s a remarkable fact. We have volume after volume of pronouncements by the Supreme Court, and lower courts, on every other article and amendment, but not a word about Article Six. If you decide to say what it means in this case, what you say will be the first word on the subject; and if you go with Mr Petrosian on this, it will be the last word, because it will have been wiped – erased from history – without ever having been given effect.
‘If you go with Mr Petrosian, what happens to the price of liberty? What happens to the “charge against the United States, for the payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged”? What does that even mean, solemnly pledged, if you go with Mr Petrosian?’
I saw the judge lift his head and look up.
‘If I may, Your Honour,’ Kiah said, ‘I would like Alexander Hamilton to have the last word, rather than me. This is from his first Report on the Public Credit. It’s in our brief:
While the observance of that good faith, which is the basis of public credit, is recommended by the strongest inducements of political expediency, it is enforced by considerations of still greater authority. There are arguments for it which rest on the immutable principles of moral obligation. And in proportion as the mind is disposed to contemplate, in the order of Providence, an intimate connection between public virtue and public happiness, will be its repugnancy to a violation of these principles. This reflection derives additional strength from the nature of the debt of the United States. It was the price of liberty. The faith of America has been repeatedly pledged for it, and with solemnities that give particular force to the obligation.
Unless Your Honour has any questions?
Judge Morrow stared at Kiah for some time, nodding almost imperceptibly. She stood quietly, without moving, returning his look. As I watched, I felt a new admiration for her. She was harnessing the silence and making it work for her. She was holding the courtroom in her spell by the sheer force of her presence. How was she doing that? It was extraordinary to watch. I had a lump in my throat. Eventually, it was Tomorrow who turned his eyes away. They turned to me.
‘Thank you, Miss Harmon. Anything further, Mr Petrosian?’
I glanced at Ellen. She shook her head. She was right. We had made our position very clear. If Tomorrow wasn’t with us now, repeating ourselves wasn’t going to change his mind.
‘No, Your Honour, thank you.’
I’m not sure what we were expecting to happen next. Judges will often rule on motions like this from the bench at the close of argument, but where there are difficult issues of law they prefer to take the matter under advisement and issue a written ruling later. What was Tomorrow going to do? It’s another thing I would probably have asked Maisie about before we started if it hadn’t all been so frenetic. Thinking about it, putting myself in the judge’s position, I would have taken time to reflect on it and put my reasons in writing as clearly as I could, even if I’d already made my mind up which way I was going. For one thing, I would have assumed that I wouldn’t be having the last word on this case. In all likelihood, whatever I did, this was going down the hall to another part of the building, to the Court of Appeals for the Federal Circuit, and from there perhaps even to the Supreme Court. With so many more senior judges poised to dissect and criticise my every word, making sure I was clear in my own mind before committing pen to paper would seem sensible. I sensed that the same thoughts were going through Tomorrow’s mind, but I wasn’t prepared for what came next.
‘I’d like to see counsel in chambers,’ he said. ‘Just Mr Petrosian and Miss Harmon.’
He was off the bench before we could react.