Written by W'Lawpsh   

ARGUMENT

ORGANIZATION


I.INTRODUCTION TO THE PREVENTION OF IMPERIAL WAR AND GENOCIDE AS AT 2011:The role of the judicial branch relative to the rule of the existing law bearing upon this issue

II.CONSTITUTIONAL DEMOCRACY vs REPRESENTATIVE DEMOCRACY:The positive law basis for each of these two alternative models for government

III.CONSTITUTIONAL DEMOCRACY vs. UNCONSTITUTIONAL EMPIRE: The physical, jurisprudential and anthropological underpinnings of this fundamental conflict




I.

INTRODUCTION TO THE PREVENTION OF IMPERIAL WAR AND GENOCIDE AS AT 2011: The role of the judicial branch relative to the rule of the existing law bearing upon this issue


The role of the judicial branch relative to the rule of the existing law bearing upon The prevention of the genocide-in-progress globally that is the judicial duty of the several national court systems of the nation states that historically discovered the Americas and their North American successors the United States and Canada, who saved and continued the constitutional and international law agreement of the discovers: France, Netherlands, Portugal, Spain, Russia and the United Kingdom.

The agreement was and remains that in virtue of discovery the discoverer or its successor by operation of constitutional and international law alone acquires the preemptive right, i.e., exclusive jurisdiction to treat with the Indian tribe in occupation for the consensual conveyance or quit-claim of the tribe's previously established sovereignty and possession, subject only to the discovers complementary jurisdiction to regulate its own citizens' trade with the tribe's citizens.

This status quo ante in due course was reiterated by the legislative scheme of the commerce, defence and treaty clauses of the constitutions of Canada and the United States as settled by their original, authoritative and therefore constitutive interpretive precedents in the Supreme Court of the United States and the Judicial Committee of the Privy Council of the United Kingdom and Quebec Court of Appeal.

However, since the enactment by the US Congress of the Appropriations Act of 1871 and the Canadian Parliament's counterpart Indian Act of 1876 both of which purported to repeal the previously established constitutional law in favor of extinguishing Indian tribal sovereignty's constitutional protection under the commerce, defence and treaty clauses and, instead, placing the tribal lands and peoples under federal jurisdiction, the courts of the United States and Canada have obstructed and ignored the constitutional question of the incapacity of Congress and Parliament to enlarge their constitutional jurisdiction without complying with their respective constitutions' amendment clause.

The courts of Canada and the USA invariably evade constitutional challenges to Appropriations Act of 1871 and Indian Act of 1876 and the regime of federal Indian law enabled by those statutes, on the ground of those statutes. They literally hold they will not address a tribe's constitutional challenge to the existence of federal law on the ground the federal law does not recognize the legal standing of tribes as sovereign bodies politic, even though the written documents submitted to the courts establish the constitutional law does recognize such sovereign status.

Gary Metallic, an ambassador and public minister of the original i.e., constitutional government of the Mi'kmaq tribe and Rick Vanguilder, his counterpart of the Mahican tribe are members of an association of like-minded tribal sovereigntists who for the past 40 years have attempted to deliver court cases in the domestic civil and criminal courts of North America (Washington, DC, Maine, Massachusetts, New York, Nevada, New Brunswick, Quebec, Ontario, Saskatchewan, Alberta, British Columbia), in international tribunals (International Court of Justice, International Criminal Court, Judicial Committee of the Privy Council, United Nations Human Rights Committee) and selected national courts (Malta, Norway).

Each and every such attempt was either rebuffed by court administrator and never got before the court or, made it past the court administrator only to have the constitutional question ignored by the judges. Invariably the administrators and judges apply federal law on the ground no issue of that law's constitutionality has been identified.

This website http://mightisnotright.org/ is devoted to the most recent attempt by Gary and Rick to deliver the same constitutional question as that previously obstructed and ignored by court administrators and judges. This time round the application to prevent the genocide-by-chicanery that is the consequence of the unconstitutional federal law invasion, occupation, usurpation and dispossession, which is the say the war against the tribes, is made directly to the supreme court of the United States. As "public ministers" of constitutionally and treaty (1724 and 1776) recognized tribes, the manifestly unconstitutional federal law extinguishment of their previously established jurisdiction is "affecting" Gary and Rick within the meaning of the supreme court original jurisdiction clause in the constitution:Article III§2¶ 2.

It enacts, "In all Cases affecting Ambassadors, other public Ministers and Consuls…the Supreme Court shall have original Jurisdiction.”

Without addressing the constitutional challenge to the federal law that is the sole issue of the case, the Clerk of the US Supreme Court refuses to file the case on the ground a federal statute in effect has repealed Article III§2¶ 2 of the constitution. The federal statute is 28 USC §1251¶(b)(1). It enacts, “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.”

The determinative precedent establishes that Article III§2¶ 2 of the constitution applies equally to "Indian tribes and foreign Nations" and, correspondingly, that both are "States" in both the international and constitutional law senses: Cherokee Nation v. State of Georgia, 30 us 1 (1831).

The Clerk does not address the precedent since he refuses to acknowledge the existence of the constitutional question that the precedent resolves.

But he is aware of it since it is drawn to the Clerk's attention in the case documents: See, Document 8, page 1, paragraph 4, and Document 14, “Case Court Documents,” http://mightisnotright.org/.

In sum the Clerk's intent to commit the genocide identified for him by the documents he fuses to file is established on the face of the terms of his rejection as a matter of record without the need for evidence or further proof or argument. His genocide-by-chicanery classically illustrates the reason the unconstitutional empire based upon initiating war against Indian tribes has superseded constitutional democracy based upon peace except in self defence to repel invasions by Indian tribes.

War and genocide are facts in consequence of the obstruction and ignoring of the constitutional law precluding those crimes against humanity.

Although the currently stonewalled case 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 directly places in issue only the sovereignty of "Indian tribes," by necessary implication of law alone the resolution of that issue ipso facto answers the inextricably related question of the sovereignty of "foreign Nations."

The blindsided constitutional law regime is straightforward. The commerce clause enacts Congress has jurisdiction to regulate commerce with "Indian tribes" and "foreign Nations" but not "plenary power" i.e. sovereignty over them, since (a) the treaty clause delegates to the President jurisdiction to contract with them by "treaty" which implicitly recognizes their sovereignty, and (b) the defence clause delegates to Congress jurisdiction to declare war to repel invasion but not to initiate invasion.

US Supreme Court Justice Clarence Thomas on his own motion in United States v. Lara, 541 US 193, 214, 227 (2004) fulfilled the judicial constitutional duty under Article VI¶¶2,3 to uphold the supremacy of the constitution and fulfill the judicial oath of office by reading the commerce clause subject to the treaty clause (he did not also address the complementary defence clause) so as challenge the constitutionality of the Appropriations Act of 1871 upon which the entire field of federal Indian rests.

But Chief Justice Roberts speaking [page 200] for the rest of the Court ignored Justice Thomas's notice of constitutional question and in willful blindness to constitutional supremacy and the judicial oath addressed the commerce clause, in isolation, as if the jurisdiction to regulate commerce with another state did not just mean what it said but rather meant to exercise "plenary power" i.e. sovereignty over them. See, Document 2, page 2, note 3, “Case Court Documents,” http://mightisnotright.org/.

Such reasoning is the only basis for upholding the War Powers Act of 1973 pursuant to which Congress unconstitutionally sub-delegated its own defensive war power to the President, while in the same breath enlarging the power from defence to repel invasion to offence to initiate invasion other than in self defence, so long as the President in his unfettered discretion declares an "emergency" upon the basis of a "threat" to "the economy."

Thus the commerce clause perversely read in isolation from the defence and treaty clauses erroneously is supposed to justify the constitutional claim of the American empire to the universal sovereign power to make war and commit genocide at will against both "Indian tribes" and "foreign Nations," which is to say, against everyone everywhere.

This is the apotheosis of the unconstitutional empire of commerce that mortally is in conflict with constitutional democracy due to the judicial obstruction and ignoring of the constitution aided and abetted by court administrators such, most crucially, the Clerk of the Supreme Court of the United States.

Therefore the prevention of imperial war and genocide as at 2011 depends upon overcoming the culpable obstruction by the Clerk of the Supreme Court of the United States of the constitutional question of the codification by 25 USC §71¶1 and 28 USC §1251¶(b)(1) of the federal repeal of the tribes' previously established constitutional right to that Court's protection against invasion, occupation, usurpation and dispossession contrary to the constitution's legislative intent with regard to Indian tribes and foreign Nations enacted by the commerce, defence and treaty clauses as settled by the original, authoritative and therefor constitutionally constitutive precedents of the era before 1871, after which judicial and administrative obstruction and ignoring in aid of unconstitutional empire in lieu of constitutional democracy set in.


II.

CONSTITUTIONAL DEMOCRACY vs REPRESENTATIVE DEMOCRACY: The positive law basis for each of these two alternative models for government


Although the Declaration of Independence, 1776, justified the American War of Independence as an inherently lawful response to “absolute Despotism” evidenced by the arbitrariness of “the present King of Great Britain,” in fact the leading colonial constitutional case of Campbell v. Hall, (1774), 98 English Reports 848, 898, had already settled that the King had no jurisdiction to interfere with the legislative sovereignty of the colonies.

Thus, said the Court, “If the King has power (and when I say the King, I mean in this case to be understood ‘without the concurrence of Parliament’) to make laws for a conquered country, this being a power subordinate to his own authority, as a part of the supreme Legislature in Parliament, he can make none which are contrary to fundamental principles.”

The constitutionally critical principle established was that once the King, acting pursuant to the Royal Prerogative to create constitutional law for overseas dominions, concedes the right of self government such as he had done by the Royal Proclamation of 1763’s recognition, first, of Indian tribal sovereignty relative to land not yet purchased by treaty from the aboriginal government and, secondly, of the corresponding territorial sovereignty of the colonial Legislatures to land acquired by treaty, thereafter the King can has no plenary power to revoke either form of sovereignty, such despotism then being reserved solely to Parliament, which in British law is as “supreme” as the constitution in any of the constitutional democracies.

The problem was not absolute monarchy but the nature and character of representative democracy that, in contrast with constitutional democracy, can do anything it wants by simple majority vote of the People’s elected representatives, including being an imperial power that, as such, bases its foreign policy upon war and its consequence genocide.

This perception is essential to the legislative intent of the ensuing Constitution of the United States of America of 1789 and indeed of all of the constitutions of the other respondents, other than the United Kingdom which still remains a representative democracy but not a constitutional democracy. This distinction makes all the difference to the constitutional question raised by the Mahican and Mi’kmaq Complaint herein of unconstitutional war and genocide attributable to the Court’s culpable willful blindness to the constitutional protection both of Indian tribal sovereignty and the sovereignty of foreign Nations.

The constitutions of the respondents other than the UK preclude invading others' sovereign lands (and whether the other is an Indian tribe or a foreign Nation is beside the point) except in self defence to repel invasion by them.

Yet the fact is the ostensible constitutional democracies no less than the United Kingdom's representative but not constitutional democracy collectively are an empire that characteristically does invade other than in self defence. Unconstitutional war, and genocide pursuant to it, is and always has been the definitive imperial norm.

The empire’s leading Nation is of course the United States. Its invasion of the Indian lands is under the auspices of the federal statute Title 25 United States Code §71 that, beginning in 1871, ostensibly repealed the constitutional right of Indian tribal sovereignty and, complementarily, Title 28 United States Code §1251 that ostensibly repealed the constitutional right’s constitutional remedy of direct recourse to the Supreme Court. America’s counterpart habit also of invading foreign Nations other than in self defence ostensibly is lawful under the auspices of the War Powers Act of 1973 being Title 50 United States Code §1541.

In it Congress purports to delegate to the President absolute despotic discretionary power to wage war and commit war’s consequence genocide if he personally feels there is an national emergency caused by disagreeing with American foreign policy or prejudicing the US economy.

This is a jurisdiction that Congress itself does not have and so it is de jure impossible for Congress to have delegated it to the President, but this does not matter for the same reason the unconstitutional character of the Indian wars does not matter: the judges and their bureaucracy will not allow the constitutional question to be raised.

The existing constitutional protection of both Indian tribal sovereignty and the sovereignty of foreign Nations arguably could have been repealed pursuant to the constitution’s Amendment Clause: Article V. But the People would have had to be informed and the issue publicly debated, that being the entire point of being a constitutional democracy in which the sovereignty of the People is reserved by two complementary modes: one being the constitutional delegation of limited as opposed to plenary governmental powers; the other being the representative government electoral process based upon universal suffrage.

The United Kingdom is the exception, being democratic in the representative government aspect although not in constitutional limitation upon government plenary power aspect. Whether the supremacy of Parliament (UK) has survived the European Union is another matter, one that the Mahican and Mi’kmaq Case is poised to resolve, assuming the judicial imperial stonewall can be overcome, by some miracle or at least judicial epiphany.

The point of the lead taken by the United States in virtue of its Declaration of Independence as implemented by its Constitution was to establish, for strictly legal purposes, the very principle for which Lincoln subsequently was to pray and upon which the Mahicans and Mi'kmaqs currently rely: that right is might rather than might is right.

The constitutional democracy way and the imperial way are irreconcilable opposites. No such amendment has been processed by any of the respondents.

The argument, then, is that in 1776 by force of arms America rightfully and justly withdrew from the British Empire due to the inherent injustice and manifest unjustifiability of the absolute Despotism of an Imperial Parliament claiming the right to govern other Peoples by means of war and genocide, an injustice shared by the Mahicans and Mi'kmaqs whose lands had been invaded, occupied, usurped and dispossessed under the British regime in spite of the ostensible guarantee of Indian tribal sovereignty legislated by Queen Anne's Royal Commission of 1704 and King George's Royal Proclamation of 1763 of independent and impartial third-party court protection.

The existing constitutional protection of both Indian tribal sovereignty and the sovereignty of foreign Nations arguably could have been repealed pursuant to the constitution’s Amendment Clause: Article V. But the People would have had to be informed and the issue publicly debated, that being the entire point of being a constitutional democracy in which the sovereignty of the People is reserved by two complementary modes: one being the constitutional delegation of limited as opposed to plenary governmental powers; the other being the representative government electoral process based upon universal suffrage. The United Kingdom is the exception, being democratic in the representative government aspect although not in constitutional limitation upon government plenary power aspect.

Whether the supremacy of Parliament (UK) has survived the European Union is another matter, one that the Mahican and Mi’kmaq Case is poised to resolve, assuming the judicial imperial stonewall can be overcome, by some miracle or at least judicial epiphany.

The point of the lead taken by the United States in virtue of its Declaration of Independence as implemented by its Constitution was to establish, for strictly legal purposes, the very principle for which Lincoln subsequently was to pray and upon which the Mahicans and Mi'kmaqs currently rely: that right is might rather than might is right.

The constitutional democracy way and the imperial way are irreconcilable opposites.

No such amendment has been processed by any of the respondents.

The argument, then, is that in 1776 by force of arms America rightfully and justly withdrew from the British Empire due to the inherent injustice and manifest unjustifiability of the absolute Despotism of an Imperial Parliament claiming the right to govern other Peoples by means of war and genocide, an injustice shared by the Mahicans and Mi'kmaqs whose lands had been invaded, occupied, usurped and dispossessed under the British regime in spite of the ostensible guarantee of Indian tribal sovereignty legislated by Queen Anne's Royal Commission of 1704 and King George's Royal Proclamation of 1763 of independent and impartial third-party court protection.

Also in 1776 the United States of America in right of the State of Massachusetts contracted by treaty with the Mi'kmaqs that if they fought alongside the Americans the broken promise of the British Empire would be honored and, in consequence, the Mi'kmaq warriors fought and died for the freedom of their generations yet unborn under the protection of the resulting Constitution of the United States of America, the original and authoritative interpretive Supreme Court precedents of which settled that that court had been constituted the new third-party court of original jurisdiction for the purpose thereafter of protecting the constitutional right of Indian tribal sovereignty. This protection against the former absolute Despotism of the Imperial Parliament also was extended to foreign Nations in virtue of the Constitution's express and explicit delegation to the Congress of the United States of jurisdiction to invade others and commit war and genocide against them if, but only if they asked for it by starting the fight by invading the United States.

In sum America was founded upon the premise that in contrast with the imperial Parliament of the United Kingdom which claimed sovereign power over the world-at-large in behalf of the British Empire, the Congress of the United States would not do so, because it could not given the limited nature of the power invested in it by the Constitution of the People.

Unless of course the People should be inclined to amend their constitution pursuant to Article V: the amendment clause. The Members of Congress breached their oath of office subsequent to 1870 by invading the constitutionally sovereign Indian lands and blocking their access to the United States Supreme Court under the auspices of statutes now codified as 25 USC 71 and 28 USC 1251.

They did the same relative foreign Nations in virtue of the War Powers Act of 1973, codified as 50 USC 1541, thereby completing the conversion of the constitutional democracy into the unconstitutional empire. The 1973 statute purported to sub-delegate to the President some of Congress's exclusive jurisdiction to declare war in self defence, albeit with the self defence aspect deleted, in virtue of which deletion the President now supposedly enjoys the power of absolute Despotism.

That is, he has the discretion of an Absolute Monarch or Emperor to initiate war anywhere on earth should he personally feel America foreign policy or economy is threatened. Except for the fact it is quite unconstitutional. But, since the US Supreme Court will not hear constitutional questions challenging the Appropriations Act of 1871 or the War Powers Act of 1973, the effect for all practical purposes is the same as it would be if a constitutional amendment had been processed pursuant to the amendment clause: Article V.

Given the conjunction of of judicial willful blindness and the greatest accumulation of physical power to commit war and genocide the world has known, the President makes George III's despotism seem benign.

Ultimate responsibility for this manifestly unconstitutional outrage against the American People's sovereignty and the sovereignty of all other Peoples on earth who may want or be allowed to be accomplices such as are Canada and the European respondents rests with the Clerk and Justices of the Supreme Court of the United States.

Their oath of office is to uphold the supremacy of the Constitution. And they are in breach of their oath in virtue of their refusal to address the conflict between the Constitution and the identified acts of Congress.

The difference between the threat to world posed by the British Empire in 1776 and the American Empire in 2011 is that the power of the United States is so much greater as to exceed the capacity of the world to regenerate and recover.

The genocide that unconstitutionally threatens all Peoples has all but run its course to final solution as against the Mahican and Mi'kmaq complainants



III.

CONSTITUTIONAL DEMOCRACY vs. UNCONSTITUTIONAL EMPIRE: The physical, jurisprudential and anthropological underpinnings of this fundamental conflict


ORGANIZATION & REFERENCES

I. Introduction
II. Physics
•Dunningham & Vedral, “Nonlocality of a Single
Particle,” Physical Review Letters 99 (2007)
•Kaku, Physics of the Future: How science will shape
human destiny and our daily lives by the year 2100,
Knopf Doubleday PG, 2011
•Rosenblum & Kuttner, Quantum Enigma: Physics
encounters consciousness, 2nd ed., Oxford UP, 2011
III. Jurisprudence
•Emerson, “Essay on Character,” Essays, Houghton
Mifflin, Boston & New York, 1865, p.95
•Rawls, “Justice as Fairness: Political Not
Metaphysical,” Philosophy and Public Affairs,
Princeton UP, 1985, pp. 223-251
•W’Lawpsh, Might is Not Right,
http://mightisnotright.org/, “Case Court Documents,”
Case Court Documents 1, 2 and 3
IV. Anthropology
•Frazer, The Golden Bough: A study in magic and
religion, 1922, ebooks@Adelaide,
http://ebooks.adelaide.edu.au/f/frazer/james/golden/
•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.
V. Conclusion
•Russell, Portraits from Memory and Other Essays: A
Treatise in the Sociology of Knowledge, New York,
Simon & Schuster, 1956, p.52
•Hopkins, God’s Grandeur,
http://www.bartleby.com/122/7.html
APPENDIX: DOCUMENT 19. A LETTER
•September 20 2011 Request to Court pursuant to 28
USC §671(a)¶2 and Rule 1 to Remove the Court Clerk
from Office for Chicanery in Excess and Abuse of
Jurisdiction




I.

INTRODUCTION


Preventing the war, genocide and planetary ecocide of unsustainable commercial empire is the survival challenge of our time.

Recently quantum mechanics has vindicated the aboriginal Indian tribes’ consciousness of the unity of creation and implicitly undermined the rationale for commercial empire: modernity’s consciousness that severability and exploitation is real whereas unity is far-fetched.

Correspondingly jurisprudence and anthropology reinforce the urgency of the need to depoliticize the US Supreme Court so it can do its sworn constitutional duty of vindicating constitutional supremacy in mortal competition with commercial empire.

The empire was brought into existence by the Appropriations Act of 1871 abolishing constitutional protection of Indian tribal sovereignty without complying with the amendment clause, a constitutional impossibility genocidally given force as if it were law by the Clerk of the Supreme Court of the United States.




II.

PHYSICS


Quantum mechanics’ simple albeit technologically sophisticated split-box and entanglement experiments have established the truth of observation-created reality with scientifically objective certainty. Dunningham & Vedral, “Nonlocality of a Single Particle,” Physical Review Letters99 (2007); Kaku, Physics of the Future: How science will shape human destiny and our daily lives by the year 2100, Knopf Doubleday PG, 2011; Rosenblum & Kuttner, Quantum Enigma: Physics encounters consciousness, 2nd ed, Oxford UP, 2011.

Based on interviews with some three hundred leading physicists Kaku establishes that fusion power from water probably will be accessed by the United States and the European Union within the next decade and then made available for massive commercial development. It is a cheap and inexhaustible source of unlimited power.

Militarily it can be used without risk to the deployer. It can focus with pin-point accuracy against a single individual or location. Or it can be directed more broadly against an entire population and the total infrastructure of a region, nation or even a continent. There is no danger of nuclear fallout as with the use of fission power militarily.

The only obstacle to this mastery of nature is the vast quantity of power from fossil fuel required to bring fusion power to the point where the theory is proven and implemented on a commercial scale. The most reliable, responsible and scientific estimate of the exhaustion of fossil fuel appears to be 2050. So long as fusion power is up and running on a big scale before that we can look forward to colonizing the galaxy, Kaku says. And this is now is a foregone conclusion as opposed to a science fiction dream.

Since democracies cannot or at least according to Kaku do not initiate war against other democracies this is a peaceful enterprise and, by necessary implication, the democracies have no choice but to secure the oil for their own consumption.

The implicit alternative is that less tolerant dictatorships will win the race and, in consequence, inaugurate global tyranny and genocide to reduce the size of the global population to a number that is sustainable in relation to the finite availability of the earth’s consumable natural resources.