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writing for godot

Constitutional Democracy v. Unconstitutional Empire: The Legal Argument: Part II

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Written by W'Lawpsh   
Monday, 26 September 2011 14:22

II.

JURISPRUDENCE


The precondition to the existence of constitutional democracy is a poltically impartial supreme court to answer the constitutional question of jurisdictional law alone as to whether the government exceeds the constitution’s grant of government power.

An unconstitutional empire is a former constitutional democracy whose supreme court obstructs and ignores such a jurisdictional challenge, thereby permitting acts in excess of constitutional jurisdiction to be enforced as if they were legal. Two theories of justice bear upon this issue: 1st the Emersonian definition of justice as the application of the constitutional truth regardless of the political consequences; and 2ndly the Rawlsian definition of justice as political, social and economic fairness.

Actually no conflict exists between the theories since Emerson’s definition applies to the governmental judicial duty whereas Rawls’s applies to the governmental political duty.

The conflict only arises because the supreme court is politicized. In consequence, it obstructs and ignores the constitutional truth when it is not poltically opportune. From all that presently appears the US Supreme Court feels it would not serve justice as political fairness were it to stop obstructing and ignoring the constitutional truth.

That is the reason the Court Clerk stonewalls the Indian case: to prevent the constitutional question getting before the Court and thereby forcing the Justices publicly to be seen refusing to do their sworn or affirmed duty with regard to such a high profile issue as this mortal conflict between constitutional democracy and unconstitutional empire.

Ralph Waldo Emerson, “Essay on Character,” Essays, Houghton Mifflin Co., Boston & New York, 1865, p. 95 proposed: "Truth is the summit of being: justice is the application of it to affairs.…; and whatever instances can be quoted of unpunished theft, or of a lie which somebody has credited, justice must prevail, and it is the privilege of truth to make itself believed."

John Rawls in “Justice as Fairness: Political Not Metaphysical,” Philosophy and Public Affairs, Princeton UP, 1985, pp. 223-251, clarified his famous “theory of justice as fairness.”See,http://philosophyfaculty.ucsd.edu/faculty/rarneson/Philosophy%20167/Rawlsjusticeasfairness.pdf:"One thing I failed to say in A Theory of Justice, or failed to stress sufficiently, is that justice as fairness is intended as a political conception of justice. While a political conception of justice is, of course, a moral conception, it is a moral conception worked out for a specific kind of subject, namely, for political, social, and economic institutions."

The Appropriations Act of 1871 abolished Indian tribal sovereignty so the United States could govern and possess the Indians’ land without bothering duly to process the mandatory constitutional amendment in compliance with the amendment clause. Indian tribal sovereignty unequivocally and unambiguously shelters under the protection of the commerce, defence and treaty clauses read together as a legislative scheme, as required by the original and authoritative precedents prior to 1871.

With regard to the prima facie unconstitutionality of that statute US Supreme Court Justice Clarence Thomas in U.S. v. Lara, 541 us 193, 214 27, correctly held: "In 1871, Congress enacted a statute that purported to prohibit entering into treaties with the “Indian nation[s] or tribe[s].” 16 Stat. 566, codified at 25 usc §71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. ii, §2, cl. 2, and to recognize foreign governments, Art. ii, §3; see, e.g., United States v. Pink, 315 us 203, 228-230 (1942)), it nevertheless reflects the view of the political branches that the tribes had become a purely domestic matter. To be sure, this does not quite suffice to demonstrate that the tribes lost their sovereignty. …The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty…and I would be willing to revisit the question."

Chief Justice Roberts speaking for the others obstructed and ignored that constitutional truth perversely by holding (p. 200), “…the central function of the Indian Commerce Clause, as we have said, is to provide Congress with plenary power to legislate in the field of Indian affairs.”

Yet, in the years 1789 through 1871 when lawyers searched title to real property they traced it back to a good root of title, namely, the Indian treaty by which the British crown before the Revolution, or the United States or a State of the Union after the Revolution, itself acquired dispositive jurisdiction capable of putting title into private ownership. The constitutional legislation, the confirmatory domestic legislation and the myriad precedents settling this principle beyond any conceivable shadow of a doubt are identified at W’Lawpsh, “Case Court Documents,” “Documents 1, 2 and 3,” Might is Not Right, available at http://mightisnotright.org/.

The Case exhaustively documents the amendment, commerce, defence and treaty clauses and their constitutive interpretive precedents in the constitutionally formative years. That body of constitutional law establishes Congress has jurisdiction to regulate commerce with the Indian tribes and foreign Nations but not to govern them or to posses their lands until they have consented by treaty to relinquish their previously established and constitutionally protected sovereignty and possession. If they should start a war and commit genocide against the United States by invading it, the United States government then acquires jurisdiction to act in self defence by retaliating.

That law willfully was blindsided by Chief Justice Roberts’s ignoring of the constitutional question on the perverse ground the commerce clause, read in isolation, preempts the question.

The case is named Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, Netherlands, France, Portugal, Spain, Russia, United Kingdom and United States.

As a matter of procedural law it asks the case be overseen by Justice Clarence Thomas in the Lara case, as is the Indians’ right under Rule 22 of the Rules of the Supreme Court of the United States. The Clerk ignores the Rule and simply sends the court documents back, no discussion and no appeal permitted. Thus the imperial war and genocide is perfected by the criminal chicanery of obstruction by the Clerk in aid of the Chief Justice’s ignoring of the critical constitutional question and the law answering it in the Lara case.




IV.

ANTHROPOLOGY


Consciousness—-which only recently has become a physical science subject in virtue of the experimental proof that it is conscious observation that determines whether matter is undular or corpuscular—-has long been a special concern of anthropology.

Sir James George Frazer’s The Golden Bough: A study in magic and religion, 1922, ebooks@Adelaide, demonstrates prehistoric or “primitive” peoples’ consciousness was based upon the capacity of a thing simultaneously to be located in different locations, and secondly upon action at a distance based upon previous contact between things.

To his own “civilized” consciousness this primitive consciousness self evidently was and remains absurd: after all, it is only common sense that things are separated by space and by time and, as modernity has since confirmed, instantaneous interconnectedness is precluded by the speed of light. Indeed the common sense consciousness of cosmological locality is the precondition of reality to which economic competition and private property naturally and inevitably respond in the political, social and economic system of the commercial empire.

But quantum mechanics recently has established that the primitive consciousness is not childishly silly and ridiculous. That is how the “real” world and universe actually work. Action at a distance may well as Einstein thought be “spooky” but it is nonetheless true given the experimentally established scientific fact that the human choice either directly to look into one of the split boxes or alternatively to allow the split wavefunction to emerge simultaneously to create an interference pattern on a screen which determines not only contradictory physical realities but the contradictory histories appropriate thereto.

To modern culture’s ordinary folk including even physicists this constitutes an enigma, a paradox, an impenetrable mystery, a preposterous absurdity, an impossibility, regardless of its irrefutable scientific proof by objective experiments and an economy one third of which is based upon quantum theory as vindicated by quantum mechanics.

To supposedly primitive humans such as the Indian complainants in Might is Not Right who are seeking to prevent the final solution of the genocide being perpetrated unconstitutionally against the last of the old way Mahican and Mi’kmaq tribes, the physical proof is not in the least enigmatic because it is common sense. Mass emerged out of energy in the beginning of this universe and after its end the Hawking radiation from the black holes that will be the repository of its remnants will include all of the information associated with that formerly existing aspect of energy called mass or matter in this universe (Engima, p. 259).

The information came from energy and will return to it, i.e., another “example of cyclical thinking in which the after-future returns to the before-past, as with generational kinship terms.” Robin Fox, The Tribal Imagination: Civilization and the savage mind, Chapter 1 “Time Out of Mind: Tribal tempo and civilized temporality,” Harvard UP, 2011, p. 27.

The old-way tribal peoples are conscious that the great spirit or cosmic energy is conscious as are all the material formats or aspects of it: the stone people, the air people, the plant people, the two legged people, the four legged, the wingèd, the finnèd and crustaceous, and on and on and on to include all that has been, is or ever can be for there can be nothing that is not an aspect of the great spirit, to be loved as the universal self. But not mastered, owned and dominated. All is one, inseparable, in reality, in actuality.

If humans cannot help being selfish neither do they have to, so long as they can rediscover, and act upon, the consciousness of their own ancient ancestors and the scientific revolution. We can stay selfish so long as we re-identify self as the universal energy that subsumes the several formats contemplated as matter including us.

The potentially fatal anthropological flaw that results in imperialism, war and genocide and threatens ecocide is not the tendency to anthropomorphize the great spirit or cosmic energy in their own image in order better to relate to it; rather, the flaw is humankind’s relatively recent commercialization and politicization of that power so that some humans can exploit and dictate to others in its name.

Bertrand Russell struggled by means of his prodigious intellect and in spite of his civilization to acquire, late in his life, the consciousness that is bred in the bone and experienced personally by those tribal peoples who live directly in and from the natural environment. In his Portraits from Memory and Other Essays: A Treatise in the Sociology of Knowledge, New York, Simon & Schuster, 1956, p.52, Russell wrote:"An individual existence should be like a river—small at first, narrowly contained within its banks, and rushing passionately past boulders and over waterfalls. Gradually the river grows wider, the banks recede, the waters flow more quietly, and in the end, without any visible break, they become merged in the sea, and painlessly lose their individual being. The man who, in old age, can see his life in this way, will not suffer from the fear of death, seeing the things he cares for will continue."

How like Hermann Hesse’s poetically imagined end for the Buddha in Siddhartha where at the end of his time formatted in human shape waded ever deeper into the river until he and it merged in the realization he and the sacred water nature had always been a unity.

Or like Krishna in the Bhagavad-Gita where he defined “True Knowledge” for Prince Arjuna as, “seeing the unchanging Life in all the lives and in the separate, One inseparable.”

Or like the Sufi mystic reputedly made the answer to a Muslim co-religionist who had questioned whether his prayer mat faced Mecca, “Please point out for me the direction where God is not.”

The Jesuit Gerard Manly Hopkins in his intuitive religious, mystical and magical poem God’s Grandeur, http://www.bartleby.com/122/7.html, put the perception this way:

"The world is charged with the grandeur of God.
It will flame out, like shining from shook foil;
It gathers to a greatness, like the ooze of oil
Crushed. Why do men then now not reck his rod? Generations have trod, have trod, have trod;
And all is seared with trade; bleared, smeared with toil;
And wears man's smudge |&| shares man's smell: the soil Is bare now, nor can foot feel, being shod.

And for all this, nature is never spent;
There lives the dearest freshness deep down things;
And though the last lights off the black West went
Oh, morning, at the brown brink eastward, springs—
Because the Holy Ghost over the bent
World broods with warm breast and with ah! bright wings.




V.

CONCLUSION


The persons and interest groups who run the empire for their own benefit have a good chance, given the imminence of the physicists’ brilliant gift to them of fusion power, to cleanse the earth both of power competitors and resource competitors. They will be able to try to recreate the Garden of Eden on earth for themselves and their civil servants and military protectors. Since the combined number of the rulers, servants and protectors significantly will be less than the burgeoning global population that presently threatens earth’s sustainability, the deletion of the excess population certainly will leave the survivors in a glorious position.

Or maybe the Mahican and Mi’kmaq tribes will find help to carry on to overcome the obstruction of the Clerk of the US Supreme Court so the Honorable Justices can save their People’s constitutional democracy from the empire, in time.




APPENDIX

DOCUMENT 19. A LETTER


Rick Vanguilder, Mahican Tribe & Gary Metallic, Mi’kmaq Tribe 29A Fairmont Street, Nashua, NH 03064
Mail: Box 604, Nashua, NH 03061

September 20 2011

William K. Suter
Clerk of the Supreme Court of the United States
1 First Street NEWashington, DC 20543

To the Attention of:

John G. Roberts, Jr., Chief Justice of the United States
Antonin Scalia, Associate Justice of the Supreme Court
Anthony M. Kennedy, Associate Justice of the Supreme Court
Clarence Thomas, Associate Justice of the Supreme Court
Ruth Bader Ginsburg, Associate Justice of the Supreme Court Stephen G. Breyer, Associate Justice of the Supreme Court
Samuel A. Alito, Jr., Associate Justice of the Supreme Court Sonia Sotomayor, Associate Justice of the Supreme Court
Elena Kagan, Associate Justice of the Supreme Court

Re: A request pursuant to 28 USC §671(a)¶2[1] and Rule 1[2] of the Rules of the Supreme Court of the United States for the removal of William K. Suter, Clerk of the Supreme Court of the United States, on the ground of culpable excess and abuse of jurisdiction in virtue preemptively of rejecting a constitutional challenge to 25 USC §71¶1[3] and 28 USC §1251¶(b)(1)[4] by chicanery[5] on the ground of 25 USC §71¶1 and 28 USC §1251[6]; thusly preempting the question and usurping the strictly judicial jurisdiction to answer it with judicious reasons for judgment. The rejected Case establishes on its face: (a) the questioned statutes are “affecting” the complainant “public Ministers” within the meaning of the Court’s original jurisdiction clause; (b) it identifies an irreconcilable conflict between those statutes and the constitution’s amendment, commerce, defence and treaty clauses read together as the legislative scheme regulating jurisdiction vis-à-vis Indian tribes and foreign Nations as settled by the original, authoritative and therefore constitutionally constitutive interpretive precedents; (c) it manifestly complies with Rules 17(3), 17(4), 22(3), 22(4), 33(1)(d), 33(1)(g)(i) and 33(h) read as a set[7] although the Clerk, without providing reasons, baldly says it does not comply with Rule 17[8]; and (d) it establishes the reasonably foreseeable, probable and actual result of the Clerk’s excess and abuse of jurisdiction is war and genocide-in-progress in consequence of the inauguration of unconstitutional empire above the rule of law instead of constitutional democracy under the rule of law.

Dear Justices:

Please see the rejected case and full particulars at http://mightisnotright.org/.

Sincerely,
/s/ "Gary Metallic" /s/ "Rick Vanguilder" Gary Metallic Rick Vanguilder Public Minister Public Minister
Mi’kmaq Tribe Mahican Tribe


ENDNOTES

[1] 28 USC §671(a)¶2. “The clerk shall be subject to removal by the Court.”

[2] Rule 1. “The Clerk receives documents for filing with the Court and has authority to reject any submitted filing that does not comply with these Rules.”

[3] 25 USC §71¶1. “No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired.” See, Document 2, page 2, note 8, “Case Court Documents,”http://mightisnotright.org/. And see Documents 1, 2 and 3 for the constitutional legislation and precedents not considered in the Lara case and which establish that case’s per incuriam status and therefore irrelevance for stare decisis purposes.

[4] 28 USC §1251¶(b)(1). “The Supreme Court shall have original but not exclusive jurisdiction of: All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties.” N.B: The restriction in the federal statute to “foreign states” is not in the Court’s original jurisdiction clause, constitution Article III§2¶2, which stipulates, “In all Cases affecting Ambassadors, other public Ministers and Consuls…the Supreme Court shall have original Jurisdiction.” In Cherokee Nation v. State of Georgia, 30 us 1 (1831), this Court settled Tribes are States (Johnson, J, dissenting) albeit not “foreign” (Thompson and Story, JJ, dissenting) and, since the Cherokee complainant explicitly relied exclusively upon the reference in the general jurisdiction clause, constitution Article III§2¶1 to disputes “between a state [Georgia] and foreign states [Cherokee Nation],” in the result Marshall, CJ, held [p.20], "this court cannot interpose; at least in the form in which those matters are presented.” The case to be at bar herein of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic [or any of them] v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States corrects the defect in the form adopted by the Cherokee Nation in 1831. See, Document 8, page 1, paragraph 4 determinative precedent, “Case Court Documents,” http://mightisnotright.org/.

[5] “Case Court Documents,” http://mightisnotright.org/, read in pari materia and in toto establish the intent of the Clerk to evade the constitution and, in aid thereof, to evade Justice Thomas becoming seized of procedural matters pursuant to Rule 22(1) that require the Clerk to deliver the case to a Single Judge of the Court for procedural directions, which he refused to do. The Clerk fully was informed of the constitutional law precluding his ground for rejection; of the genocidal consequence of his rejection; and of his abuse of the constitution’s supremacy and oath clauses: Article VI¶2. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Article VI¶3. “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” See, e.g., Document 1, page 9, paragraph 3(h) judicial duty.

[6] Note 5, Document 14.

[7] Note 5, Document 1, page 1.

[8] Note 6.

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