Written by W'Lawpsh   

The constitution is hard to amend. For this reason the government’s judicial branch has taken upon itself the jurisdiction to amend. This is treasonable. The crime is prefect because the judicial branch enjoys a monopoly over the process by which guilt and innocence is ascertained. The constitution enacts that if the People feel it is too hard to amend, their solution is to amend the amendment clause to make it easier. Until then the amendment clause is binding on both the judicial and political branches so long as the country remains a constitutional democracy. Indeed it is precisely the sanctity of the amendment clause that puts the word constitutional with the word democracy.

The United States of America stopped being a constitutional democracy when Congress initiated its current foreign policy of global sovereignty justifying war with indifference to its genocidal consequence. The political branch took the first step in that direction by enacting the Appropriations Act of 1871. It did not comply with the amendment clause. It repealed Indian tribal sovereignty that until then had enjoyed the constitutional protection of the commerce, defence and treaty clauses. The precedents settling the meaning of those clauses, as a foreign policy set, establish that government can regulate trade with foreign Nations and Indian tribes but can not trespass on their lands unless pursuant to a treaty with them or, alternatively, a war in self defence to repel an invasion of the United States by them.

The second and by far the most critical step was taken by the judicial branch in or very shortly after 1871. Prior to then the court cases recognizing and affirming Indian tribal sovereignty as a constitutional right protected under the commerce, defence and treaty clauses were legion. That came to a full stop as at 1871 but for the one case of Holden v. Joy, 84 US 211, 244 (1872). In it the Supreme Court of the United States reiterated a principle that had been a staple of colonial and then constitutional government since the enactment of the ecclesiastical statute Sublimus Dei of 1537.

The Supreme Court in the 1872 case of Holden v. Joy paraphrased it this way: “Obviously this principle regulated the right conceded by discovery among the discoverers, but it did not affect the rights of those already in possession, either as aboriginal occupants or as occupants by virtue of a more ancient discovery. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell…Unmistakably their title was absolute, subject only to the preemption right of purchase acquired by the United States as the successors of Great Britain, and the right also on their part as successors of the discoverer to prohibit the sale of the land to any other governments or their subjects, and to exclude all other governments from any interference in their affairs.”

The total absence of similar judgments subsequent to Holden v. Joy is circumstantial evidence that following Holden v. Joy the Supreme Court confidentially instructed its Court Clerks to brick up the Courthouse doors to Indians other than those Indians who voluntarily conformed to the unconstitutional regime of federal Indian law inaugurated by the Appropriations Act of 1871. I can not think of any other way by which such a well understood and profoundly important constitutional principle could so suddenly, utterly and absolutely have disappeared from the legal historical record. Certainly the conflict between natives and newcomers with regard to jurisdiction over and possession of land did not itself disappear. Only the Indian tribes’ previously established legal remedy of court access disappeared.

Indians that resisted the invasion of the lawyers, judges, police, land speculators and settlers onto their constitutionally sovereign tribal territories after Holden v. Joy were either murdered, imprisoned or slowly starved to death as their aboriginal economy utterly and systemically was destroyed. Events were staged such as the Massacre at Wounded Knee in 1890 where soldiers fell upon a sleeping Indian village and slaughtered the men, women and children before dumping them into a mass grave that carefully was photographed so the message widely could be disseminated among any other Indians who might otherwise think to raise their heads from the bowed position. Twenty four purple hearts were awarded to the executioners for their ostensible courage in the line of duty in the service of the unconstitutional empire that had replaced the former constitutional democracy.

The name remained the same but, after the inferred in camera resolution by the judicial branch to block the constitutional question of the repeal of the commerce, defence and treaty clauses by the Appropriations Act of 1871 from getting through the Courthouse doors, the United States of America was a different kind of body politic in virtue of that judicial treason. And this is why the phrase the “living tree” was coined. If and when a person questions the legitimacy of the practice whereby politicians and judges freely go about their business re-inventing the constitution, the answer they receive is delivered with a thinly veiled sneer of disbelief and the words, “The constitution is a living tree, isn’t it?”

The questioner is put firmly in his place since the alternative is for him to say, “Well no, the constitution is a dead tree.” Ridicule is persuasive especially when administered by experts such as lawyers, judges, law professors and the academic establishment the members of which by and large respect the conventional wisdom of each other’s disciplines. The living tree is a hanging tree. From it dangle the bones of the children murdered as collateral damage at all the Wounded Knees stretching from the once wild west round the globe through the My Lais and wherever else the fingers of the emperors of death have pointed and will point as directed by the war mongers of commerce who run this newer, bigger empire as they always have done with empires before.

But the American empire will be the last because unlike any before it this empire’s power exceeds the capacity of the Earth to sustain. The other difference is that past empires though brutal were at least honest. Genghis Khan and the absolute monarchs of Europe, like those of the late Shah of Iran and the present King of Saudi Arabia, and the other despots put and maintained in power by the unconstitutional empire that is the United States of America, made and make clear they are “the law” in the phrase “the rule of law.” The despotisms that are the former constitutional democracies of the American empire such as Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and last but certainly not least the United States itself have in common one Leviathan of a lie: that the democratic Peoples rule by means of their constitutions.

The constitution by the way is not a tree. It is a constitution. There are many differences between a tree and a constitution. It is not necessary to list them. Simply remarking the fact makes it obvious just how spurious and superficial the emotional and intellectual weapons are in the defence of the unconstitutional empire. All the empire really has is the ability and will to flummox, ridicule, coerce, intimidate, kill, torture, maim and starve those who question its omniscience and omnipresence. It has the power to put even those ostensibly its own out of work and drive them to internecine violence, alcoholism, drug abuse and all the signs of deep social malaise and dysfunction.

Even if the constitution were a tree it does not rationally follow that the judicial branch of government is gardener in charge. The particular tree that by analogy is the constitution has in its biological nature a feature that signifies the existence of one and only one institution qualified to prune, splice, cut down, replant or whatever else may need to be done to it. It is the People. The genes that together perennially reproduce this failsafe device are the constitution’s own amendment, supremacy of the constitution, judicial duty and treason clauses.

Article V signifies that only after substantial publicity and debate pursuant to which the will of the People is ascertained can the constitution tree be pruned of something as fundamental as whether its foreign policy is based upon peace and friendship or converted to war and dictatorial power. Article VI paragraphs 2 and 3 signify the constitution tree will always be the tallest in the forest and it is duty of the judges to make sure of it, never permitting themselves to substitute their own predilections for what it better could say to obscure what it does say.

Finally Article III section 3 paragraph 1 enacts, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Certainly the war mongers who work so hard and so efficiently to convert the constitutional democracy into their unconstitutional empire, for profit, are the “Enemies” of constitutional democracy. Actually, its arch-enemies since no enemy from outside has a snowball’s chance of laying low the constitutional democracy.

And no enemy within has anything to match the money and power of the war mongers and their mates the merchant bankers who fund the arms industry pursuant to which the United States makes its fortune arming the world while at the same time developing new modes of destruction that make the ones it sells useless against it.

If the judicial branch of the government of the United States of America were to stop “giving Aid and Comfort” to these arch-enemies of constitutional democracy it would rise from the ashes to which the fires of unconstitutional empire have consigned it. And it would be so easy, so very, very easy for the Justices of the Supreme Court of the United States bloodlessly, justly and fairly to award the victory.

All the Justices have to do is either to remove William Suter from his position as Clerk of the Supreme Court and put in his place a person who will do his job of rejecting Cases for defects of form in accordance with the Clerk’s job description in Rule 1 of the Rule of the Supreme Court or, alternatively, instruct him to stop refusing to let the Justices do their duty under the constitution’s original jurisdiction clause Article III section 2 paragraph 2.

Their duty is declare the Appropriations Act of 1871 null and void by reason of conflict with the commerce, defence and treaty clauses and their precedents.

The Case the Clerk obstructs and which is restricted to and fully apprises the Court of the legislation and precedents bearing upon the constitutional question is Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. See http://mightisnotright.org/.