Justice-as-Truth Legal Argument

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.

— Ralph Waldo Emerson (1803-1882)

1. The Constitution precludes imperialism as against “foreign Nations and Indian tribes.”

2. Cherokee Nation v. State of Georgia, 30 US 1, 20 (1831), settled their legal remedy for encroachment by the United States upon their territorial sovereignty is under the constitution’s original jurisdiction clause that exists for the purpose of adjudicating territorial jurisdiction disputes between the United States and other sovereign States exclusively in the US Supreme Court.

3. Although that Court refused to consider the Cherokees’ complaint on its merits (incidentally resulting in the genocidal “Trail of Tears”) the Court’s ground for its refusal was a critical error of legal draftsmanship on the part of the nation’s lawyer. He identified his client as a “foreign Nation” styled the Cherokee Nation instead of styling it an “Indian tribe.” The Court held that although an Indian tribe equally is a sovereign “State” it is not “foreign.”

4. Subsequently Congress enacted the Appropriations Act of 1871, 25 United States Code §71¶1 and 28 United States Code §1251¶(b)(1), ostensibly restricting the original jurisdiction clause remedy to “foreign states” thus excluding Indian tribes.

5. The ostensible repeal is ineffective since it does not comply with the constitution’s amendment clause and such compliance is the mandatory precondition to constitutional change. United States v. Lara, 541 US 193, 214, 227 (2004) (Justice Thomas).

6. The Clerk of the Supreme Court nevertheless enforces the repeal as if it were the law by arbitrarily refusing to file tribal complaints challenging its constitutionality.

7. The War Powers Act of 1973, 50 United States Code §1541, puts foreign Nations in the same position as Indian tribes by unconstitutionally repealing their territorial sovereignty too, so long as the President feels any given foreign Nation threatens the foreign policy or economy of the United States.

8. These events have terminated “constitutional“ democracy which depends for its existence upon judicial review of the constitutionality of federal statutes. Marbury v. Madison, 5 US 137 (1803).

9. The consequence is the existing unconstitutional American Empire and, in its train, the wars and genocides that characterize all empires. It reverses the constitution’s express and explicit intent “to establish” “Justice” “Tranquility” “defence” “Welfare” and “Liberty” in peace based upon the respect for the territorial sovereignty of foreign Nations and Indian Tribes under the commerce, defence and treaty clauses and their constitutive precedents.

10. Under the commerce clause the US government constitutionally has delegated jurisdiction to regulate trade “with” the others but NOT to enter their territories, except with treaty consent, or in self defence in order to repel an invasion of the United States by them or any of them.

11. The precedents on the inviolability of the foreign nations and Indian tribes territorial sovereignty are legion, consistent and unequivocal from the 1790s to 1872.

12. Then the court record goes blank until the 2004 Lara Case when Justice Thomas alone addressed the treaty clause of the set.

13. Neither he nor any other has addressed the commerce, defence and treaty clauses and their precedents as a harmoniously settled anti-imperial set since 1872.

14. The reason is simple: the Supreme Court Clerk refuses to adjudicate complaints based upon the conflict between the anti-imperialist policy of the Constitution of the United States of America, on the one hand, and the federal imperial statutes, on the other: and so the original jurisdiction clause is in abeyance because the Court does not want to have to grant to Indian tribes their constitutional remedy for the Court’s and others’ willful blindness to their constitutional right of territorial sovereignty.

15. Nor will any other domestic court. The Supreme Court invariably denies permission to appeal against lower court willful blindness to existence of the constitutional question.

16. It is possible that since 1871 the Supreme Court Clerk’s have all been engaged in this imperialism-by-chicanery but it is more likely that in each generation every time a complaint has arrived in the mail the Clerk has checked with the Chief Justice the United States and been instructed to maintain the stone wall against constitutional democracy under the rule of law so as to enable the extra-constitutional imperial era.

17. Whichever does not matter for present purposes since the critical emergency objective now is not to punish either the present Clerk or Chief Justice of the Court for knowingly causing the wars and genocides attributable to the unconstitutional imperialism, but to prevent those crimes against the constitution and humanity for the future.

18. The only way speedily to achieve this objective is to get the Mahican and Mi’kmaq Tribes’ case-under-obstruction before the Supreme Court and to trust that, in the light of day, the Justices will want to be seen to do their clear and plain duty as defined by the supreme law, judicial oath and original jurisdiction clauses.

19. Their alternative is to be seen not doing it; specifically, by “adhering to their [the United States’s] Enemies, giving them Aid and Comfort” contrary to the treason clause of the Constitution.

20. Certainly those Americans who for their own power, prestige and profit persist in playing “The Great Game” of imperialism are “Enemies” in the treasonable constitutional sense.

21. Their success to date has terminated the existence of the United States as a constitutional democracy under the rule of law. That is the only right to exist that the country claims. Or can claim, pending a duly processed constitutional amendment.

W'Lawpsh is a scholar and author of jurisprudential anthropology, constitutional history, and international human rights law. Read other articles by W'Lawpsh, or visit W'Lawpsh's website.