…and the Request for Further Judicial Consideration: The Limited Purpose of This Request
This memorandum does not presume that every disagreement with a judicial decision justifies a petition for rehearing.
To the contrary, petitions for rehearing are extraordinary proceedings governed by strict procedural rules and are granted only in limited circumstances.
The author’s purpose is therefore not to suggest that Rule 44 provides an opportunity simply to reargue matters already presented.
Rather, the purpose is to respectfully ask whether the historical and constitutional questions identified throughout this memorandum warrant careful professional evaluation to determine whether they present grounds, if any, that counsel believes may properly be raised through the lawful procedures established by the Supreme Court.
Accordingly, this memorandum is addressed primarily to attorneys.
It asks them to exercise their own independent professional judgment.
The Responsibility of Counsel
The author is not a member of the legal profession.
He neither presumes to instruct counsel concerning litigation strategy nor suggests that any attorney should advance arguments inconsistent with professional ethics or governing law.
Instead, he respectfully asks counsel to examine the historical record assembled herein.
If counsel concludes that the questions presented have no legal merit, then the matter should proceed no further.
If counsel concludes that portions of the historical record deserve additional legal examination, then counsel may determine whether those matters may properly be presented within the procedures established by Rule 44 or through any other lawful means.
The responsibility for those legal judgments belongs to counsel, not to the author.
The Questions Presented
This memorandum respectfully asks attorneys to consider, among other matters:
Whether the relationship between the Civil Rights Act of 1866 and the Fourteenth Amendment has been examined according to their original chronology.
Whether President Andrew Johnson’s contemporaneous veto messages bear upon the historical identity of the legislation enacted by Congress.
Whether the methodology proposed throughout this memorandum—beginning with the historical subject before broader constitutional interpretation—assists in understanding the Reconstruction settlement.
Whether those questions, individually or collectively, warrant additional legal consideration.
The author advances these questions with humility and recognizes that reasonable lawyers may reach differing conclusions.
Rule 44 as a Lawful Procedure
Rule 44 exists to provide a lawful procedure through which limited requests for further consideration may be presented to the Supreme Court.
This memorandum neither expands nor contracts that Rule.
It merely recognizes its existence.
Whether the present circumstances satisfy its requirements is a matter for professional legal judgment.
The author’s request is therefore modest.
Examine the evidence.
Evaluate the law.
Determine whether Rule 44, or any other lawful procedure, may appropriately be invoked.
Beyond the Court
The author also recognizes that constitutional responsibility does not end with judicial proceedings.
Even if counsel ultimately concludes that further judicial review is unavailable or unwarranted, the constitutional questions presented throughout this memorandum may continue to bear upon the Executive Branch’s independent responsibilities under Article II.
For that reason, this memorandum presents a second and separate constitutional avenue.
That avenue is the subject of the next Part.
It concerns the President’s constitutional duty to faithfully execute the laws of the United States and the continuing operation of Reconstruction legislation that remains part of the law of the Nation.