Written by W'Lawpsh   

Some people consider the administration of George W. Bush is guilty of the crimes of war and genocide. Some act upon the belief such as by attempting a citizen’s arrest of a member of the administration. The assumption can not survive the War Powers Act of 1973. People who are troubled by the thought the politicians commit crimes with impunity simply because they are not put on trial should move on to a more promising ways to establish peace based upon the rule of law.

In order to convict a person for a crime, any crime, you have to prove both the act and the intent. You can’t prove intent if upon reasonable grounds the accused believed his act was legal at the time he did it. The War Powers Act of 1973 of the Congress of the United States of America enacts that if the President feels there is a threat to the economy he can declare a national emergency and make war to deal with it. Genocide that occurs in consequence of a legal war is not crime because it is not the consequence of a guilty act.

International law is not actually law. Law creates a right that has a judicial remedy. If an interest that colloquially is referred to as a right does not have such a remedy then the word “right” is a misnomer for what at most is a privilege or an aspiration. The phrase "international law" describes a set of privileges and aspirations that sometimes become laws if, but only if, they are incorporated into the constitutional or the domestic law.

For legal purposes the empire alone is capable of providing judicial remedies that are enforceable in the international arena. The empire controls the United Nations and its so-called courts of law such as the International Court of Justice and the International Criminal Court and, in any event, no court order other than one emanating from the Supreme Court of the United States is enforceable against the United States. Any force applied pursuant to an order by any other court is an act of war against the United States in the view of the United States. For practical purposes that is all that matters.

The War Powers Act of 1973 is not constitutional and for that reason it was null and void on the day it ostensibly came into force and effect. However only the Supreme Court of the United States can make the determination of unconstitutionality stick. Until that Court declares the War Powers Act of 1973 unconstitutional it remains "the law: enforced by the empire with the might of imperial power. Though unconstitutional it creates an impregnable right no matter how wrong it is, so long as the Supreme Court the United States remains on the sidelines.

This is so because of the principle of constitutional supremacy that is the sine qua non of all constitutional democracies. If a candidate enactment for the status of law is not authorized by the constitution it is not law. This goes for Resolutions of the Security Council of the United Nations the same as for any other candidate for law status. Whether or not a law is authorized by the constitution for legal purposes is called a constitutional question. Only the United States Supreme Court has both the jurisdiction to answer constitutional questions and the power to enforce the answers. This flows from the superprecedent Marbury v. Madison.

Marbury v. Madison, 5 US 137, 163, 176-179 (1803). [163] “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. [176] ¶The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts pro-[177]hibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. ¶Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. ¶If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. ¶Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. ¶This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. ¶If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. ¶It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. ¶If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. ¶Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. ¶This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. ¶That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection. ¶The judicial power of the United States is extended to all cases arising under the constitution. [179] Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? ¶This is too extravagant to be maintained. ¶In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey? ¶There are many other parts of the constitution which serve to illustrate this subject.” [Emphasis added]

The emphasized phrase “an act of the legislature repugnant to the constitution is void” is the key to deconstructing the unconstitutional empire and reinstating the constitutional democracy. States of the United States, Indian tribes and foreign Nations have a right of direct access to the Supreme Court of the United States. All other litigants have to go through the lower courts and then apply for permission from the Supreme Court to appeal to it. For them raising a constitutional question before that Court is a privilege not a right.

The political branch of the government of the United States of America, persons like George W. Bush and his administration and the members of Congress, have not got the power to convert the constitutional democracy into the unconstitutional empire that exists today. It is only natural and therefor inevitable politicians unconstitutionally will try to usurp power in the hope the Court won’t stop them. As Chief Justice Marshall on behalf all of the Justices of the Supreme Court of the United States explained, it is the Court’s highest and most important duty to be the safety net to save constitutional democracy from its politicians.

Today there is a court case by two Indian tribes that should be awaiting a decision from the Supreme Court of the United States declaring the Appropriations Act of 1871 and by necessary implication the War Powers Act of 1973 void by reason of conflict with the constitution’s commerce, defence and treaty clauses and their constitutive precedents. The Clerk of the Supreme Court who refuses to place it before the Judges on the ground the Appropriations Act of 1871 can not constitutionally be attacked on constitutional grounds. The Clerk is doing precisely what Marbury v. Madison settles can not be done.

The Court or at least the Chief Justice John G. Roberts, Jr., who as the chief justice is also the particular judge that guides and instructs the Clerk does not want to have to address the constitutional question of the Appropriations Act of 1871. Justice Clarence Thomas on his own raised that very question in a Case in 2004 but at that time the rest of the Judges ignored the conflict between that statute and the constitution’s treaty clause identified by Justice Thomas. Chief Justice Roberts in willful blindness to the set of clauses that establish the constitutional foreign policy held the commerce clause power to regulate trade with the tribes really means “plenary power” over the tribes, i.e., the sovereign power to abolish them.

Since Roberts did not address the set of clauses his decision is without relevance to the constitutional question of the conflict between the Appropriations Act of 1871 and the set and its precedents. The perversity of the Chief Justice’s reasoning that the mere jurisdiction to regulate trade “with,” really means to exercise sovereignty “over,” is sufficiently strained as to act as a barometer to his emotional condition in terms of his personal commitment to imperial power regardless of his constitutional duty.

And Judge Thomas picked up on only half the story. It is not just the treaty clause that is in conflict with the Appropriations Act of 1871. It is the set of three clauses and their precedents. The commerce, defence and treaty clauses read together are the constitution’s foreign policy mandate to government. Pursuant to them the government can regulate trade with Indian tribes and foreign nations but not go upon their territory without their consent recorded by treaty, or wage war against them other than in self defence to repel an invasion of the United States by them.

The unconstitutional empire was inaugurated by the Appropriations Act of 1871 which, by abolishing the Indian tribes’ sovereign power to make treaties, justified the ensuing war and genocide by which America unconstitutionally “won” the unceded Indian territories. The offshore extension of the empire similarly is justified by the War Powers Act of 1973. Both statutes are unconstitutional for the same reason: conflict with the constitution’s foreign policy established by the commerce, defence and treaty clauses and their precedents.

This is not an exotic topic or even a controversial one. To the contrary the unconstitutionality of the two statutes is obvious when one reads those clauses and precedents. That is why the Judges or at least Chief Justice Roberts does not want to have to read them. And that, in turn, is why the Clerk of the Court is so arrogant and confident he will get away with exceeding his modest administrative jurisdiction to adjudicate whether a case complies with the Rules of the Supreme Court in terms of the form and formatting of the documents.

The Clerk rejects the documents (which are perfect in terms of form and formatting) on the substantive law ground Indian tribes can not challenge the abolition of themselves by the Appropriations Act of 1871 because the Appropriations Act of 1871 abolished them. This Catch-22 so obviously is chicanery that it is simply not credible that the Clerk would take it upon himself so to expose himself to ridicule as well as censure, unless he knew he had the backing of the Chief Justice. Presumably he asked.

For the past forty years I have been putting this same constitutional question to the courts of the United States and Canada, the Judicial Committee of the Privy Council (UK), the International Court of Justice and the International Criminal Court, in both the civil law and the criminal contexts. There have been some fifty or so cases. In 1999 I was convicted of criminal contempt of court and disbarred as a criminal for scandalizing the courts by presenting the Indian tribes’ allegation the courts’ obstruction and ignoring of the manifest conflict between the constitutions’ commerce, defence and treaty clauses and the mentioned federal statutes (or their Canadian counterparts) constitutes the crimes of treason, war and genocide. The allegation is quite true as a matter of law alone.

The mentioned obstruction of the constitutional question by the Clerk of the Supreme Court of the United States with regard to the currently stonewalled Indian tribal sovereignty case is the culmination of many years of painstaking preparation. I can attest to the fact of the genocide-by-chicanery not only upon the basis personal experience, but also upon the basis of a master of arts degree in constitutional history and a law doctorate in the jurisprudence bearing directly upon the constitutional question. It is quite simple. The unconstitutional empire of war and genocide has no case capable of being argued to contradict the supremacy of the constitutional democracy of peace and respect.

That is the reason for the obstruction and ignoring by the unconstitutional empire’s judicial branch. It is the same reason no one who is successful in the empire will come to the aid of the advancement of the case, whether in terms of money to pay court costs (no lawyer fees) or personal contacts in Europe where complementary court cases can and should be commenced. Successful people in the empire do not want to risk swamping the imperial boat. They ride on the top deck in the royal comfort; indeed, in the imperial suites.

Many enjoy rocking it; especially politically because that is all irrelevant showmanship. The proposition that the courts are going suddenly to become honest, after dishonestly suppressing the constitutional question since 1871, is simply too “far-fetched” for them seriously to consider.

The Indian tribal sovereignty case presented to the Supreme Court of the United States but obstructed by the Clerk’s criminal chicanery is called Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. Particulars of it are at http://mightisnotright.org/.

To those protesting on Wall Street and those who may be involved in the October March on Washington I have to beg you to realize the unconstitutional empire wants nothing so much as an excuse to nip in the bud the risk of political uprisings. Certainly its agents will use violence that will be attributed to you by a complicit media. Truth is no defence in a court system that is already committed to unconstitutional empire and opposed to constitutional democracy.

Everything Chief Justice Marshall in Marbury v. Madison and President Eisenhower in his Farewell Address to the Nation warned about is now a done deal. If you allow yourselves to become political scapegoats the unconstitutional empire will not only crush you it will raise such an apprehension of a state of emergency that any chance of getting the Supreme Court of the United States to do its job of upholding constitutional supremacy will be lost, probably forever.

The opportunity presented by the Mahican and Mi’kmaq Case probably is the last opportunity the rule of law can be made to function.

The rule of law is the only power bigger than might is right which is the only power the empire possesses.

You do not need a revolution.

You should not want a revolution. Words like “bring it on” from the mouths of people armed only with ideals and hopes spoken to people armed with batons, tear gas and guns are heroic but not tactical.

You can not win a revolution based upon violence; and you can not lose a revolution based upon the rule of law.

Tactically you must see you way to choosing the high ground and leave to the empire the swamp.

In any event the American Revolution of 1776 achieved all that you could hope for.

It resulted in a constitution to end empires forever.

That constitution needs defending. It needs you. You need it.

Please take care of yourselves so you can live to save it.