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.
Authority & Jurisdiction
This article is the core of this website. It is also the most difficult to comprehend because some of the concepts are either beyond normal US Constitutional understandings or are subtle.
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 to confine the scope of our Tribunal to conform to those authorities.
At first glance, there seem to be few such hooks in our national organic document, the Constitution of the United States. On this website, we will look more deeply. And (foreshadowing) we will find that the United States does in fact 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 as a selection and organization of the totality of powers of a nation-state. In other words, let us look at the US Constitution not as an ultimate God but rather like a subordinate Archangel 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 by modern nation states such as the United States of America. We will find that that is a vast body of powers and authorities - more than enough to support the kind of American Tribunal proposed here.
Modern nations, except in moments of extreme stress, tend not to utilize all of those powers and authorities.
Under the Constitution of the United States, that totality of powers and authorities is apportioned to three groups: the Federal government, the individual States, and "the people."
The piece apportioned to the Federal government is done via explicit (albeit often diffuse and ambiguous) delegations.
It is important to note that our Constitution does not give the full scope of nation-state powers and authorities to our Federal government. There is a large residual body of nation-state powers and authorities that are not apportioned to the Federal government.
That residuary is apportioned to the States and the people.
In other words, those nation-state powers and authorities that are not granted to the Federal government by our Constitution remain to be exercised by the States or the people.
This website argues that there is residual power to correct and redress wrongs and errors - such as those committed by the Trump/MAGA administration - and by the terms of our Constitution, that power belongs to the people, not to the States and certainly not to the Federal government.
There are several possible paths to establish this Tribunal. These paths are not mutually exclusive. All are difficult.
Each of these paths is described in the article "Multiple Paths".
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 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 displaces all other sources of law and authority. This means that things like common law notions of property or rights have no independent existence except as derived from the Constitution, which usually means they 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 familiar 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 and 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 adoption.
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 Constitution's 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 inaccurate 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 Constitution gives to our national Federal government is but a selection from the full inventory of powers that every nation-state possesses. 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 Independence 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 there are laws and a system of moral values that exist outside of, and perhaps transcend, 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 choose 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 extent of the authority and 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.
The United States Declaration of Independence put it this way: A nation-state has "full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."
The Declaration of Independence also states "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Although the Declaration is not the law of the United States, the Declaration does suggest that the power of the United States is vast, and indeed is rather larger than that portion of those powers that our Constitution allocated to the Federal government.
(Principles, such as the idea of geographic extent and borders, came from the Peace of Westphalia in 1648. That notion of clear borders has been significantly eroded since the close of WWII in 1945, the rise of multinational corporations, and the near erasure, for some purposes, of borders 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 seize any property, and to do largely whatever 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 merely works of man and may be changed or replaced by man.
Several nations have changed the form of their governments recently.
Here is a list of those that have made such changes since year 2000:
- Barbados
- Bhutan
- Myanmar
- Nepal
- Turkey
Not all of these changes were in the direction of increased democracy.
And not all changes of this nature are peaceful.
This website is not arguing that we change our system of government (although admittedly the Trump/MAGA era has revealed several aspects that are in serious need of review and change.)
What this website is arguing is that in the full scope of power possessed by the United States, there is a part beyond that allocated to the Federal government and that that part contains the powers and authorities to make repairs, such as the American Tribunal being proposed here.
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.
An Analogy - Cutting A Cake
For fun, let's use an analogy. Let's consider the full scope of authority and power of a nation state to be a round cake. And let's think about how we are going to cut that cake and hand out the pieces.
There are three at this party. We can call them "The Federal Government", "The States", and "The People".
It is a big cake, and our United States Constitution cuts a nice large slice for the Federal government.
Our Constitution also quite explicitly leaves the rest of that cake to be divided between the States and the People.
Even if the States and the People do not want such large slices of the cake-of-power and are happy to take smaller slices, anything left over is still in the realm of the power and authority that our Constitution has assigned to the States and the People.
It is upon those leftover pieces of our cake-of-power that we can build our American Tribunal.
Constitutions Are Not The Last Word
Constitutions define powers allocated to, and prohibited from, governments. Constitutions may also define rights, privileges, and immunities 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 sufficient 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 of whether the Constitution allocates a residuary power to the Federal government or to the States.
But few cases have reached the Supreme Court regarding the allocation of residuary powers to "the people".
And the words of the Preamble are largely unheard of 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 the Constitutional 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 with 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 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 United States Constitution, which states that it is "the people" who "ordain and establish" the Constitution. 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 states AND to the people. That later delegation to the people is often overlooked.