We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Sources of Authority and Jurisdiction
This article is the core of this website.
It is safe to say that most of us do not want to engage in the kind of unprincipled, unguided, unlimited chaos that we call a "revolution".
Most of us would prefer that there be some guiding stars and an established, even if vague and uncharted, framework in which changes are made.
That means that we need to look for hooks that we can use as sources for authority and, implicitly, confine the scope of our Tribunal.
At first glance there seem to be few such hooks in our organic document, the Constitution of the United States. Here we look more deeply and do find that the United States does have the authority and jurisdiction for a tribunal that is both powerful and wide in scope.
Justices on the United States Supreme Court (SCOTUS) have at various times said the Constitution "is not a suicide pact".
So let us look at the US Constitution not as the pinnacle of our national authority but rather an selection and organization of the totality of powers of a nation state and the people of that nation. In other words let us look at the US Constitution not as an ultimate God but rather as akin to an Arch Angel operating under the aegis of a higher authority.
The question becomes what is that higher authority and what is the relation of that higher authority to the US Constitution?
This inquiry begins with the concept of the totality of powers and authorities possessed my modern nation states such as the United States of America. We then note that that totality of powers and authorities is apportioned by the United States Constitution to three groups: the Federal government, the individual States, and to "the people." The piece apportioned to the Federal government is done via explicit (albeing somewhat diffuse) delegations. The residuary is apportioned to the States and the people. In other words, powers and authorities not granted to the Federal government remain as powers and authorities, but they are excercised by the States and the people.
This website argues that the resudual power to correct and redress wrongs and errors - such as commited by the Trump/MAGA adminstration - that transcend our Constitution belongs to the people, not to the States and certainly not to the Federal government.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
There are two basic ways that one may view the the position of the Constitution of the United States.
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First is the view that the Constitution is the ultimate source of all authority and that it displayes all other sources of law and authority. This means that things like common law notions of property or rights have no independent existance except as derived form the Constitution, which usually means exist only through implicit or explicit adoption of those notions by some authority (such as Congress or a State legislature) that exists within the Constitutional structure.
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Second is the view that the Constitution exists against a background of some kind.
Those of you who have done video or photo editing are probably familar with the concept of layers. At the deepest level is "the background". And on top of that background are placed image layers in which each layer blocks the layers underneath except for where that layer is transparent.
We can consider that the Constitution is the first layer above that background. Where there are gaps an ambiguities in the Constitution, that background is visible. In this view things like common law penetrate through those gaps and ambiguities in the Constitution without the need for adoptation.
Many find the latter view troublesome, not so much because of the layering of authority - we already have that in our Constitutional Federa/State system and the Constitutions Supremacy clause. Rather the concern is more about the vagueness of that background and the risk that some may simply fabricate a background to achieve a desired outcome. That risk is not hypothetical - we have seen how the District of Columbia v. Heller (554 U.S. 570 (2008)) decision was based on a historical background that is both geographically inacurate and also largely the result of historical cherry picking. The concept of "natural law" as that background is even more subject to risk of bias and fabrication.
The point that this writer wants you, the reader, to draw is that our Constitutution gives to our national Federal government is but a selection from the full inventory of powers that every nation state posesses. The nation state powers that the Constitution did not select for the Federal government fall (via the Preamble and the Ninth and Tenth Amendments) to the individual states and to the people.
So, just as Justice Scalia was able in the Heller decsion able to pluck individual gun rights out of that full inventory background, we - you and I, the people - can create a foundation for the proposed tribunal from that same background.
Many people mistakenly believe that our Declaration of Independence is part of our system of laws. The Declaration of Indepdence is an aspirational and explanatory document, but it is not in our laws.
"Natural Law" is a concept that appeals to some of us, including some members (such as C. Thomas) of the US Supreme Court.
Natural law is the idea that exists law and system of moral values that exists outside of, and perhaps transcends, our Constitution and state laws.
Clearly there are practices and values that existed before we ever wrote a law or a constitution. But those practices and values are not clearly defined, may at times be imagined or distorted reflections of other practices, and are largely a means through which judges can pick and chose pieces,of "natural law" (perhaps out of context) to support a pre-decided outcome. (See District of Columbia v. Heller 554 US 570 (2008))
One could say that "natural law" is a euphemism for "I made it up."
What Is The Ultimate Power Of A Nation State?
Let us begin at the beginning and ask: What is the ultimate power of a nation-state?
If we answer honestly we begin with the axiom that the power of a nation-state is limited only by its own abilities and by the willingness of others to oppose that power.
(Principles, such as the idea of geographic extend and borders came from the Peace of Westphalia in 1648. That notion of clear borders has been significantly eroded since the close of WW-II in 1945, the rise of multi-national corporations, and the near erasure, for some purposes, of boarders by the Internet.)
A realpolitik view of nation-state power tells us that a nation-state as a whole has the power even to terminate the life of those within its borders, to sieze any property, and to largely whatevever else it wants to do. One only has to look at the Soviet Union under Stalin to see how far a nation-state can go.
Most nation-states today have organic documents - such as Constitutions - that disavow, or at least partition, that full range of power. Unlike the Biblical Ten Commandments, as shown in the painting at the top of this piece, Constitutions are not granted by gods. Documents, such as the United States Constitution, are merly works of man and may be changed or replaced by man.
And as recent events in the United States have shown, unless backed by some degree of power, Constitutional limits can be little more than words on a sheet of paper.
The Constitution Is A Limited Selection Of The Ultimate Power Of A Nation State And Delegation Of Those Selected Powers To The Federal Government.
Constitions define powers allocated to, and prohibited from, governments. Constitutions may also define rights, privileges, and immunites of residents and citizens.
However, while a Constitution apportions the full range of a nation state's power, that Constitution does not define the scope of that nation state's power.
In the context of the United States and its Constitution a large piece of that full nation state power is assigned to the central, Federal government, while the remaining residuary of power flows to the individual states and to "the people".
It is that residuary power that is of interest here on this website.
It is asserted that that residuary power is sufficent for the establishment and operation of the proposed American Tribunal.
There are multiple pieces to this examination:
- The Preamble To the United States Constitution
- The Ninth Amendment To the United States Constitution
- The Tenth Amendment To the United States Constitution
Many cases have reached the Supreme Court (SCOTUS) on the question whether the Constituion allocates a residuary power to the Federal government or to the States.
But few cases have reached the Supreme Court regarding allocation of residuary powers to "the people".
And the words of the Preamble are largely unheard or considered nothing more than grand words signifying little of substance. There are no cases regarding the primacy of "the people" to take up and exercise the full nation state powers, even ignoring and overriding Constitional apportionment of those powers.
(The paragraph above may strike readers as bordering on revolution. It is certainly not a comfortable option to be taken without the greatest of provocation and serious, well informed, consideration. However, in our attempt here to deal the repercussions and remediation of the Trump/MAGA era we should not disregard uncomfortable topics and instead look at all things with clarity.)
Preamble To The United States Constitution
The Ninth and Tenth Amendments to the United States Constitution
The Ninth and Tenth Amendments partition powers of a Nation State into two broad (but partially overlapping) categories:
- Powers allocated to the Federal government.
- Powers allocated to the individual states or "the people".
The Ninth and Tenth Amendments make it quite clear that the authority of the Federal government is circumscribed and limited. Simply put the Federal Government does not have the power or authority to exercise the full range of powers of a Nation State.
Those amendments also make it quite clear that the powers of a Nation State that are not granted by the Constitution to the Federal government are powers that belong to the individual States of the United States or to "the people" of the United States.
This body of authority and power granted to the states and the people is so so enormous that it stretches to the limits of the powers of sovereign nation states.
This allocation of authority and power is reinforced by the words of the Preamble to the Unites States Constitution, which states that it is "the people" who "ordain and establish" the Conttitution. In other words that "the people" are the source of sovereignty and that they, not some outside force or god-like entity, are the creators and are in charge.
TODO - non Federal powers to to states AND to the people. That later delegation, to the people, is often overlooked.
