fyi: Today, more than 12 years after it aired, I finally saw the Quantum Leap series finale. This is a big milestone for me.

Nicolas, Peter, “Nine, of Course: A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court“. New York University Journal of Law & Liberty, Forthcoming

In this article, I hypothesize that 28 U.S.C. Section 1, which sets the number of justices on the United States Supreme Court at nine, is not a constitutionally valid exercise of congressional power. Rather, I theorize, under the design of the Constitution, the number of justices on the Supreme Court at any given time will vary depending on the number of justices the President chooses to nominate and how many of those, if any, members of the Senate opt to confirm.

In the manuscript, I consider and reject potential sources of congressional power to enact the statute, including the Necessary and Proper Clause of Article I and the Regulations Clause of Article III. I then consider how the constitutionality of the statute would be determined, including who would have standing to bring a challenge. Finally, I examine the consequences of my hypothesis.

My great-great-grandfather, Charles Lewis Francis, arrived from Wales in 1860, at age 17, and shortly thereafter participated in the action of the Civil War. In 1879, he wrote and published a memoir of this period. I’ve scanned in the text and made it available as raw PDF scans and as an incomplete full-text PDF. As I correct the OCR’d chapters, I’ll be posting the sections to my blog. This is the third section of Chapter I.

Early in May I left Baltimore entirely, and remained in Washington and its neighborhood. Until July my time was divided between visiting camps and forts, attending the sessions of Congress, and generally, in taking in the events occurring around and about me. The battle of Bull Run was fought, and I witnessed the wonderfull extremes. A few days before, and I saw the fine looking troops from the North: they were well fed, well dressed, full of fight, and they moved from the various camps in the city, over the Long Bridge and on to Arlington Heights, in time with the music of many gorgeously uniformed and well appointed bands. With virgin banners flying, and speeches from the Preisdent and the eminent Senators and Representatives from their several States, the various regiments and brigades marched gayly on to finish the war in sixty days.

I saw the retreat, and when the troops filed into the city I mingled my feelings with those who feared that the existence of the nation was in its greatest peril. To render it worse, that direful day was dark and gloomy, and it rained in torrents. The returning soldiers were dirty, and begrimed with the historic clay of Virginia; some were shoeless, many hatless — all minus something, and all but very few with any but drooping and dejected spirits. All will hurry-scurry, and to all appearances without any definite aim other than that of arriving at comfortable camping grounds. Then we were afraid that the rebels would follow up their victory and enter Washington. It was said by many that the Government were wholly prepared to flee, that the President had gone, and it was fully a week before the people were reassured of their immediate safety. The best conditioned of our troops had been left on the southern side of the Potomac, but what did we know of that? Besides, our Provost Marshal’s office had not yet been completely organized, our spies were not so diligent or numerous as those on the other side, and the city contained within its limits a vast number of those who thought the enemy would soon be at our doors, and with whom a wish was father to the thought.

However, the feeling of despair in time gave way to that of hope and confidence, General McDowell was superseded, and by and by General McClellan, the “great soldier,” the “young Napoleon,” the “savior of his country,” took command of our armies. Troops poured into the city by thousands, daily and hourly: fortifications rose as if by magic, and upon all the hills around the city were bristling cannon, while at the feet of those hills and all around them was a vast camp of armed men. From the Insane Asylum beyond the eastern branch of the Potomac river to Tennalytown on the Rockville Pike road, and around in a circle, were camps of infantry, cavalry, and batteries of artillery.

My great-great-grandfather, Charles Lewis Francis, arrived from Wales in 1860, at age 17, and shortly thereafter participated in the action of the Civil War. In 1879, he wrote and published a memoir of this period. I’ve scanned in the text and made it available as raw PDF scans and as an incomplete full-text PDF. As I correct the OCR’d chapters, I’ll be posting the sections to my blog. This is the second section of Chapter I.

On Monday the city was calm. The hot blood had run itself down. Orders had been sent to the North from Washington, the country at large had got over the first scare, and in a day or two after, an Ohio regiment of infantry and some regular tropps entered the city, partially in secret, but with loaded cannons and muskets and fixed bayonets — indeed, in full fighting trim. They marched down from the Central Railroad depot to the Washington depot on Camden street. It was an impresssive sight. Dread determination was on each and every man’s face. There were closed ranks and generally true soldierly bearing and carriage. Every eye was fixed. Not a smiling countenance nor an answering cheer from the populace greeted them, and not handkerchiefs of fair ladies waved in welcome. The crowds on the sidewalks were dense, and kept a sullen silence. The silenve was almost painful. I remember that I heard the ominous, heavy, regular tread of the soldiers as they marched to the defiant rolling of the drums. There was no music save that, and, if it may be so called, an occasional dramatic blast of the bugle as changes in the direction of the column were announced. Then indeed the people begin to breathe free. The city had been controlled, troops had safely passed through, and the “seccessionists” and their allies, the mob, had alike been awed into submission.

The first regiment of loyal troops that I saw venture on the bloody route of the Sixth Massachusetts was, I think, from Vermont or Maine. They were uniformly tall, full-bearded, healthy looking men, and a jauntily attired vivandiere was with them. They did not ride in the cars from the President street depot to the Camden depot, as the gallant Sixth attempted, but, having formed near the depot, with loaded muskets and fixed bayonets, they wisely marched along Pratt street through the great crowds to the cars. Soon after that New York city sent some regiments, composed in part of what were then called toughs. They were firemen and of that class. It was expected by the Southerners that these troops would fraternize with them, but they did not, and that was the last of Baltimore’s prospects of ruin. She settled down to terrible hard times and the mortification of seeing United States enginineers surveying old Federal Hill, as a preliminary to the erection of a strong fort right in the city itself.