Written by W'Lawpsh   

Occupy Wall Street identifies an urgent need for a constitutional amendment answering what the People want.

The country began as a reaction against the imperialism of the British Empire. And in the era 1789-1871 the Supreme Court and the lower courts settled that the constitution’s commerce, defence and treaty clauses together precluded imperialism. Instead of claiming the imperial right of sovereignty over foreign Nations and Indian tribes those clauses restricted the new country’s power to regulating trade with them without any territorial right of entry other than by treaty or in defence to repel an invasion by them. Most critically, they were guaranteed a rule of law remedy for the protection of their sovereignty in the event of an unlawful entry or a non-defensive invasion. This is the legislative intent of the original jurisdiction clause. It enacts that their representatives can complain directly to the Supreme Court if they are affected by some statute or executive order that abrogates their sovereignty. Such an abrogation automatically terminates the representatives’ constitutional status as “Ambassadors, public Ministers or Consuls” because only sovereign entities have such offices. The conversion from constitutional powers to imperial power occurred when the Supreme Court decided not to act upon its original jurisdiction with regard to complaints made by the Indian tribes that by enacting that the President and Senate can no longer negotiate and ratify treaties with them, the Appropriations Act of 1871 extinguished their previously protected sovereignty and abrogated the named offices. There was never a ruling by the Court on that legal point. It is just that after 1871 the Clerk of the Supreme refused to accept documents from Indian tribes. There was no judicial determination involved since it simply came down to the Court Clerks carrying out the instructions of their administrative superiors the Chief Justices of the United States. In due course the War Powers Act of 1973 did the same thing vis-à-vis foreign Nations. Under this, the second of the federal imperial statutes, the President can declare and wage war against any of those that he feels constitute an emergency threat to the economy. It is as if the commerce clause had been intended for economic reasons to delegate to the government sovereignty over the entire world. It didn’t in view of the defence and treaty clauses but, so long as the Supreme Court refuses to permit the foreign Nations and Indian tribes constitutionally to question the validity of the federal imperial statutes pursuant to the original jurisdiction clause, it may as well have. The stonewalling of the remedy has the same effect for all practical purposes as a repeal of the right itself. The fact that this particular kind of constitutional repeal of a previously vested constitutional right does not comply with the constitution’s amendment clause and is therefor unconstitutional is a problem that has no solution under the rule of law. The Supreme Court is not bound by the rule of law. In the result the United States now leads the pack of ostensible constitutional democracies that in reality constitute a traditional unconstitutional empire engaged in doing all the things it dedicated its existence to not doing.

Empires make lots of money until they implode. Or at least that has been the historical pattern. Although the British and French Empires seem today not to have followed the pattern, they actually did. Their imperial era was over by 1950. But then they caught hold of the coattails of the American Empire and have ridden back into junior partnership roles, though not too many people are fooled by that into thinking they quite deserve to be as bellicose and bullying as they are, since like cowards generally they take no imperial actions without the approval of the real emperor: whomever that is. And this is where Occupy Wall Street comes to the fore. There is reason to doubt that the President is Emperor, or Congress, or even the Supreme Court although it certainly has the power of veto over what power the other two can exercise. In a money economy the probability suggests itself that those who control the money control everything including the government. At the very least there is an imperial partnership. Just as important as the money is the military industrial complex. Empires thrive on growth and collapse when it stagnates. The military industrial complex ensures growth by persuasion where possible and otherwise by force. Since the destructive power of this particular empire is beyond the world’s capacity to sustain, as is its economic power, the capriciousness of the empire is its greatest argument. The point is not lost on anyone on earth that this particular empire is irrational enough to obliterate civilization if it can not be first. Well, not just first. Since growth has to be infinite and the resources to permit it are not, the empire will have in order to survive to squeeze the rest of the world out of existence in the hope that it will be able to colonize the universe next. And it may. Certainly the physicist and educator Michio Kaku in his book Physics of the Future: How science will shape human destiny and our daily lives by the year 2100 (Knopf Doubleday, 2011) thinks that is the consensus of the three hundred physicists who are at the leading edge and should know. Unlimited, cheap and clean fusion power to replace fossil fuels and fission power and indeed all the other alternative clean forms apparently is now highly probable within a decade and a virtual certainty by mid century, so long at least as the huge amounts of energy required to bring it online are not exhausted first. This is why imperialistic wars and genocides are necessary. Energy and the resources it modifies are the precondition to the progress to stellar civilization. Not all the people of the world are going to find a spot in the interplanetary transportation vehicles. Neither can they just be left behind to grow in numbers and compete with the comfort of the scientists, military personnel, police, service providers and owners of the empire. Not all the people who are the “We the People” of the constitution are likely to find room either. It could be that this is an aspect behind the Occupy Wall Street event: a creeping awareness in the face of the horrendous build up of secret police and not-so-secret ordinary police who do special duty for the elites and jails. In sum the ruling class is ready, willing, able and indeed poised to defend itself upon the basis of the adage that the best defence is offence. For people who are infatuated with themselves there is never any doubt that it is better that countless millions die than that their elevation be jeopardized. Occupy Wall Street is perceived as a life and death threat by the emperors and their retinue precisely because, for them, life without great privilege is a fate worse than death.

David Hume (1711-1776) in his Theory of Politics: Containing a treatise on human nature said, “Nothing is more certain that men are, in a great measure, governed by interest, and that even when they extend their concern beyond themselves, it is not any great distance.…The only difficulty, therefore, is to find out this expedient, by which men cure their natural weakness and lay themselves under the necessity of observing the laws of justice and equity.…Here then is the origin of civil government and society.” His solution was independent and impartial third-party adjudication. He reasoned that the only people who could do that were the ones who were so well off as to be indifferent to disputes and petty conflicts that bothered the less well off: rule by the elite as opposed to government of, by and for people. That is not how America started out but it is how it has ended up. Now some ordinary people are gathering to ask where it all went wrong. My own suggestion is it went wrong when in 1871 when the Supreme Court of the United States chose for the future to obstruct and ignore the constitutional question of the very obvious conflict between the commerce, defence and treaty clauses based upon peace with respect, and the first federal imperial statute that declared permanent war with contempt for the Indian tribes. Since 1871 its history boils down to consolidating and expanding the imperial power, which is to say government of, by and for the imperial class. If that is true, the question for the Occupation Movement is how to deal with the propensity to prefer comfortable short term decisions over uncomfortable long term ones. In a nutshell will Occupy Wall Street be worn down and bought off by the prospect of a greater share in the spoils of imperial wars and genocides or, alternatively, will it seek a constitutional amendment requiring the Supreme Court to address the constitutional question of the federal imperial statutes before it is too late? Therefore I hope that the Occupation Movement will curtail debating the problem so as to lobby for a constitutional amendment to reinstate the constitution and reestablish their control over it. Even if the Supreme Court is a lost cause (and having personally experienced 40 years of Court obstruction and ignoring I believe it is) the People can deal with its continued stonewalling by other or a series of constitutional amendments. Failing the Supreme Court doing its duty soon perhaps one of the first alternatives could be an amendment making the amendment process easier so the courts don’t assume they have unconstitutionally to do the amending because the constitutional way is too hard. The constitution must be brought back under the control of We the People and since the political and judicial branches so obviously has proven they can not be trusted to do their constitutional duty the reality is, if constitutional democracy is to exist at all We the People must have direct control of ordinary legislation and constitutional amendments without suffering any longer the power of veto enjoyed by the emperor’s control over the actions of both the political branch and judicial branches.

In sum if We the People want constitutional democracy they are going to have to do it themselves and, as a very practical matter, if they do not seize the moment to do it right away they will not get a second chance for they will be murdered, imprisoned or brought to heel by witnessing the imperial wrath inflicted on others. That is the lesson taught to the Peoples of the Indian tribes and foreign Nations by the federal imperial statutes of 1871 and 1973 and the homeland is already in the cross hairs.