Written by W'Lawpsh   

Some critics criticize the Supreme Court for making a bad political decision. Other times the complaint is the Court has made a bad legal decision. Last and by far the most important is when it is alleged the Court has evaded making a decision in order to suppress law with which the judges poltically disagree but whose legal truth they are unable to discount because it is too unequivocally and unambiguously established.

The sole criterion for this critique of court reason and court critics is, constitutional duty. After stipulating and thereby limiting the respective powers of the federal legislative, executive and judicial branches in Articles I, II and III and of the states in Article IV the constitution goes on in Article V to identify the way by which government of, by and for We the People is secured by the public notoriety and high majority requirement of the amendment process. Article VI expressly and explicitly inflicts upon the rulers the duty to safeguard the political arrangement that the constitution has in the previous Articles enshrined and entrenched as the law, compliance with which is the precondition for any other candidate for the status of law to qualify.

The constitution does not expressly and explicitly say that every citizen and sojourner in the country is also duty bound to act to uphold the supremacy of the constitution as opposed to the lesser duty of not personally breaking the law. But I like to think the duty is at least implicit. I am not aware of any judicial decision directly on point although I have not searched the court records to try and find one. Even so I have to suggest it is the right of every person who is under the rule of law in virtue of being in a constitutional democracy to speak out and be heard in the political arena against breaches of constitutional duty by the Supreme Court without fear of prosecution for contempt of court.

Correspondingly no one has the right falsely and maliciously to accuse the Court or a Judge of it of dereliction of duty, for to do that impairs respect for the rule of law upon the integrity of which the constitution’s intent is based: its intent being, as the preamble proclaims, to establish Justice, Tranquility, defence, Welfare and Liberty. A critic who is disturbed by what seems to be a politically disastrous judicial opinion is not entitled to defame the Court or a Judge by alleging a breach of the judicial duty unsupported by evidence of a conflict between the constitution and the judicial opinion.

The reason is, judicial officers do not bear the burden of being both true to the constitution and politically popular. They are duty bound to be true to the constitution regardless of the constitution’s political popularity. Nevertheless hardly a day goes by without the appearance in the media of some fresh defamation that contains absolutely no evidence and certainly no proof of any conflict between the judicial opinion and the words of the constitution. Furthermore many of the defamers are law professors. To them I have to say, please think twice next time you disagree poltically but can’t identify a constitutional conflict that justifies your wish to allege breach of judicial duty.

To those critics who complain the Court has made a bad legal decision and have identified the law that requires a different decision, I have to say thanks and recommend them to readers. Unfortunately not many of these critics appear in the media. What they have to say makes pretty boring reading because the law itself often makes difficult reading; the law other than the constitution, that is. The constitution itself is above literary criticism since it is the epitome of grace, clarity and simplicity of expression. Only those who would manipulate it for political ends pretend that it is badly written so they can then go about filling in the imaginary blank spaces left by its fictional literary inadequacy.

The other reason the second category of critics do not much appear in non-professional publications is that what they talk about is details as opposed to issues of profoundly structural significance. Legal issues of that quality simply do not arise upon the basis of reported Judgments issued by the Court and supported by rational Reasons for Judgment. Reported decisions deal with issues with which the Court itself wants to deal, as opposed to issues with which it does not want to deal. Or more accurately I should say issue, since there is only one issue with which the Court will not deal: the unmentionable issue of Court sponsored imperialism. And that is the only issue that is of general and pervasive interest and importance to all of the set known as We the People.

The third set of critics, so far as I can see, consists in me. By far the most dangerous breach of the judicial duty arises if and when the Court knows the constitution precludes a political path it wishes to walk and, with the intent to evade the constitution, the Court simply obstructs and ignores the constitutional truth. This is “dangerous” in several senses. Of these most important is the first of the five intents identified by the constitution: Justice. And here I rely upon the definition given by Ralph Waldo Emerson (1803-1882). In his “Essay on Character,” Essays (Cromwell Company: New York, 1926, p. 329) he said, “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.”

This defines “Justice” within the meaning of the constitution. There can be no such justice in a country whose Supreme Court lies to achieve a political end.

A second sense in which the Court’s lie by means of obstructing and ignoring the truth is dangerous is the risk it creates of political, social, economic and military collapse. The epitome of this sense is the obstruction and ignoring by the Supreme Court of the United States since 1871 of the fact the federal imperial statutes profoundly and structurally conflict with the constitution’s anti-imperial political resolution. The federal imperial statutes are the Appropriations Act of 1871 and the War Powers Act of 1973.

The 1871 statute abrogates the treaty and defence clauses’ respect for the sovereignty of “Indian Tribes” within the meaning of the commerce clause which gives to Congress the power to regulate trade with them. The 1973 statute does the same with regard to “foreign Nations,” the other category of sovereign trading partner.

The danger attributable to the Court’s obstruction and ignoring of the constitutional question of those statutes’ adoption of imperialism previously was identified by the Declaration of Independence which precisely is why the commerce, defence and treaty clauses took the political stance they did take. And still do take, except that the Court won’t hear of it, even though the Court certainly knows of it.

Government of, by and for the People and imperialism are not compatible in part because it is inevitable that the imperial elite (the 1%) exists in its own mind to exploit the rest (the 99%). The imperialist era 1871-2011 that began with invading, occupying, usurping and dispossessing the Indian tribes at last has arrived at the point where the country teeters on the brink of military suppression of We the People by their own army and police.

The hate and rage in the faces of the white shirted police who unconstitutionally impede Occupy Wall Street tell the story from here on. Either the emperors will rule through such as these, or the protest will lead on to a reinstatement of constitutional democracy. And this is the greatest danger of all. The emperors who so obviously control the police at home and the army abroad are violent by nature and character and, since the Supreme Court is on their side and against the constitution’s intent of Tranquility under the rule of law, the rule of law itself has become a criminal weapon.

It is not possible for a lawyer or legal academic to say or publicly to admit this particular truth and make a living. Media agencies are advised by their lawyers not to publish this particular truth out of fear of prejudice against themselves. And of course in many cases the media is owned and controlled by persons who are emperors or closely aligned in political interest with them. So it is not at all surprising this particular truth does not get heard nearly so much as the other two types of criticism of the Supreme Court.

Still unless We the People do hear and, having heard, do then act to require Supreme Court publicly to address and resolve the constitutional question of the federal imperial statutes before it is too late, which it may already be, the People are and will remain lambs to the slaughter each waiting its turn wide eyed and bleating ‘til silenced.