Category Archives: Legal/Constitutional

The Constitutional Crisis, Impeachment and Russophobia

I think this is what you call a constitutional crisis.

The president says the Mueller Report exonerates him of Russian collusion and obstruction of justice. Democrats in Congress insist it does show evidence for obstruction, that needs further investigation through hearings. Trump has ordered his officials, lawyers and aides to refuse to testify, citing executive privilege, obliging the seven House committees investigating Trump to subpoena witnesses, who may still refuse to appear. Such people, if cited by Congress, with contempt could be forced by courts to pay fines or even be imprisoned. But it is not clear what will happen; hence, a crisis.

Trump now indicates that he will not cooperate with the Democratic majority in the House on key issues such as infrastructure until they conclude their annoying investigations of his alleged obstruction, as well as his finances. His puerile tantrum at the Wednesday White House meeting with the Democratic leadership was occasioned by a remark by the Democratic Speaker of the House that Trump was guilty of a “cover-up.” He essentially told Nancy Pelosi that if she was going to speak rudely of him, he would takes his toys and go home.

One can understand his feelings, of course. Why work with people who are (falsely, in your own mind) accusing you of misbehavior? Pundits are noting that Nixon and Clinton during their impeachment proceedings could stay focused on government business and compartmentalize their minds. But Trump may be unable or unwilling to do that. And it may well be that he is positively courting impeachment, assuming the Republican-dominated Senate would acquit him and that the proceedings might actually consolidate his base for the 2020 election.

The constitutional crisis pits Congressional oversight against executive privilege. The parliament against the king. It’s an exciting spectacle to watch, but there are no heroes in it. The Democrats hoped to bring Trump down (and discredit the result of the 2016 election) by using Cold War-type Russophobia. They are bitterly disappointed they could not wed their effort to drive Trump from office to that Russophobia, and that the Mueller probe found no evidence for Russian collusion with the Trump campaign much less the full-fledged conspiracy imagined by many. Now the goal is to bring him down through the investigation of his finances. (Of course, allegations of a mysteriously cordial relationship between Trump and Putin will also continue, and nascent plans for a Trump Tower in Moscow, where Trump hosted a Miss Universe pageant in 2013, will be adduced as evidence for somehow inappropriate ties with an “adversary” nation.)

Documents subpoenaed by the Congress from Deutsche Bank and Capital One might well show illicit financial transactions. Trump has called the investigation of his finances a red line; in his view they are none of the people’s business. One reason (we now know, thanks to New York Times reporting) Trump lost billions in the 1990s; he is not a very good businessman after all, and it’s embarrassing to him for the world to know it. But soon we know much more about his finances, and may discover scandals sufficient to turn more Republicans against the president and allow for impeachment in both houses. Who knows, we may even discover evidence for illegal Russian loans to Trump, which would make the Democrats’ dream come true.

Pelosi has been cautious about seeking impeachment, pending more investigations that could produce a bipartisan effort. To see that, as many Dems do, as excessively careful would be a mistake, since the move would allow the Democrats to vent but fail in the end. And any move towards impeachment now would dwell on alleged obstruction of a probe into his Russian ties, and necessarily center around the premise that Russia is an adversary with whom all contact is suspicious. More promotion of Russophobia, just as Trump and Putin are finally talking, would be unfortunate.

Now that a federal judge has ruled against Trump’s effort to prevent the Congress from obtaining his bank records, we can expect some details about the two billion loans made to him by Deutsche Bank before the 2016 election. But can he be impeached for white-collar crimes committed before taking office? There are a number of constitutional issues here. But more important than these, and the fate of this particularly odious president, are the problem of corporate control over the political process in this country, and the problem of capitalist imperialism which requires the positing of adversaries, chief among them Russia.

The Sovereign Indigenous Power of Veto in Canada

1. The Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia, 2014 S.C.C. 44, [2014] 2 S.C.R. 256 erred as a matter of law by interpreting section 35(1):— in breach of the maxim1 interpretatio cessat in claris [interpretation stops when a text is clear]; since, as held in R. v. Nicholas, 232 A.P.R.248, ¶9 (1988), by Justice Dickson of the New Brunswick Court of Queen’s Bench, the “use of the expression existing aboriginal and treaty rights in s. 35(1) can only be taken to mean those rights as they existed on April 17, 1982,” the day Canada’s Constitution Act, 1982, came into force and effect by the royal assent. [Emphasis added.]

2. Section 35(1) of the Constitution Act, 1982, unambiguously enacted, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

3. The following excerpts read together from Tsilhqot’in Nation are extrajudicial errors based on “interpreting” section 35(1):

[1] What is the test for Aboriginal title to land? If title is established, what rights does it confer? Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157, apply to land covered by Aboriginal title? What are the constitutional constraints on provincial regulation of land under Aboriginal title? Finally, how are broader public interests to be reconciled with the rights conferred by Aboriginal title? These are among the important questions raised by this appeal. [Emphasis added]

[23] … cases such as this require an approach that results in decisions based on the best evidence that emerges, not what a lawyer may have envisaged when drafting the initial claim. What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal. It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved. [Emphasis added]

[71] What remains, then, of the Crown’s radical or underlying title to lands held under Aboriginal title? The authorities suggest two related elements — a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35 of the Constitution Act, 1982. The Court in Delgamuukw referred to this as a process of reconciling Aboriginal interests with the broader public interests under s. 35 of the Constitution Act, 1982. [Emphasis added]

[88] In summary, Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out — that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations. Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group. [Emphasis added]

[113] And what about the long period of time during which land claims progress and ultimate Aboriginal title remains uncertain? During this period, Aboriginal groups have no legal right to manage the forest; their only right is to be consulted, and if appropriate, accommodated with respect to the land’s use: Haida. [Emphasis added]

[125] As discussed earlier, to justify an infringement, the Crown must demonstrate that: (1) it complied with its procedural duty to consult with the right holders and accommodate the right to an appropriate extent at the stage when infringement was contemplated; (2) the infringement is backed by a compelling and substantial legislative objective in the public interest; and (3) the benefit to the public is proportionate to any adverse effect on the Aboriginal interest. This framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians. [Emphasis added]

[139] As discussed, s. 35 of the Constitution Act, 1982 imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title. Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group. The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society. [Emphasis added]

4. The preceding excerpts identify a revolutionary political regime arrived at by improperly interpreting section 35 by means of “openly declaring a new principle of law.” The new principle introduces expropriation into the native and newcomer relationship and by so doing, were it not extrajudicial, effectively would put an end to the independent indigenous statehood that has survived. A.V. Dicey, Lectures on the Relation between Law and Public Opinion in England in the Nineteenth Century, 1905, (at page 483), delivered a critical legal opinion about the limits on the judicial power:

Judge-made law is subject to certain limitations. It can not openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or the application or interpretation of some statutory enactment. [Emphasis added]

5. James Kirby (2018), in an article entitled “A. V. Dicey and English constitutionalism,” History of European Ideas, accounted for the significance of Dicey:

Abstract: The jurist A. V. Dicey’s study of the Law of the Constitution (1885) has been since its publication the dominant analysis of the British constitution and the source of orthodoxy on such subjects as parliamentary sovereignty and the rule of law. This canonical status has obscured the originality of Dicey’s ideas in the history of legal and political thought. Dicey reworked the traditional idea of sovereignty into two separate concepts – legal and political sovereignty – in order to square the common law notion of the sovereignty of parliament with the democratic idea of the sovereignty of the people. He forged a new concept – “the rule of law” – to explain the legal basis of liberty in common law countries in a manner that was both Benthamite and constitutionalist. Finally, he provided a democratic and anti-federalist rationale for maintaining the Union of Great Britain and Ireland. This majoritarian, centralist and utilitarian constitutionalism has been one of the most enduring products of Victorian scholarship. This article seeks to recover it in its original context and, in so doing, to show the value of reintegrating legal thought into the mainstream of modern British history and the history of political thought.

6. The Supreme Court’s interpretation of Tsilhqot’in Nation thus purports to supersede the previously established definition of “existing aboriginal rights” within the meaning of section 35(1) of the Constitution Act, 1982 by inventing new law. The “superseded” (if that were possible in lieu of a legislative constitutional amendment) constitutional law is provided by three constitutive authorities, namely:

(a) by the Canadian common law case on the doctrine of discovery, being Connolly v. Woolrich, (1867), 11 L.C.J. 197, 205-207 (S.C. Quebec) which confirmed the continuity of the indigenous jurisdiction to create their own law governing themselves and their beneficial interest:

…will it be contended that the territorial rights, political organization such as it was, or the laws of the Indian tribes, were abrogated that they ceased to exist when these two European nations began to trade with the aboriginal occupants? In my opinion, it is beyond controversy that they did not, that so far from being abolished, they were not even modified in the slightest degree in regard to the civil rights of the natives. As bearing upon this point, I cannot do better than to cite the decision of learned and august tribunal the Supreme Court of the United States. In the celebrated case of Worcester against the State of Georgia, (6th Peters Reports, pages 515-542), Chief Justice Marshall perhaps one of the greatest lawyers of our times in delivering the judgment of the Court, said:

America separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.
After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in the possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting and fishing.
Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the Creator of all things, conferred these rights over hunters and fishermen, on agriculturalists and manufacturers?
But power, war, conquest give rights, which after possession, are conceded by the world; and that can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might shed some light on existing pretensions.
The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any of them to grasp the whole; and the claimants too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously for all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession. Johnson vs. McIntosh, 8 Wheaton’s Rep., 543.
This principle, acknowledged by all Europeans, because it was in the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one that could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.
The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this preemptive privilege in the particular place. The United States succeeded to all, the claims of Great Britain, both territorial and political; but no attempt so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist; are asserted by the one, and admitted by the other.
Soon after Great Britain determined upon planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect claim; nor was it so understood.
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.

Though speaking more particularly of Indian lands and territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines, is manifest throughout. The principles laid down in this judgment, (and Mr. Justice Story as a Member of the Court concurred in this decision), admit of no doubt.

(b) the constitutional legislation being the Indian part of the Royal Proclamation of 1763 which, excerpted, enacted:

[Paragraph 1] And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure, that no Governor or Commander in Chief…do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands…upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.

[Paragraph 3] And We do further strictly enjoin and require all Persons whatever, who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands, which, not having been ceded to, or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

[Paragraph 4]…if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, that same shall be purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in Chief of Our Colonies respectively, within which they shall lie:…

(c) the proclamation’s original and authoritative precedent being St. Catherine’s Milling and Lumber Company Ltd. v. The Queen, (1888), 14 A.C. 46 (J.C.P.C.), which held:

[52-53] Of the territory thus ceded to the Crown, an area of not less than 32,000 square miles is situated within the boundaries of the Province of Ontario; and, with respect to that area, a controversy has arisen between the Dominion and Ontario, each of them maintaining that the legal effect of extinguishing the Indian title has been to transmit to itself the entire beneficial interest of the lands, as now vested in the Crown, freed from encumbrance of any kind, save the qualified privilege of hunting and fishing mentioned in the treaty….Although the present case relates exclusively to the right of the Government of Canada to dispose of the timber in question to the appellant company, yet its decision necessarily involves the determination of the larger question between that government and the province of Ontario with respect to the legal consequences of the treaty of 1873.

[54] Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty.

[55] It appears to them [their Lordships] to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

[58] The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden. The ceded territory was at the time of the union, land vested in the Crown, subject to “an interest other than that of the Province in the same,” within the meaning of sect. 109; and must now belong to Ontario in terms of that clause,…

[59] The fact that the power of legislating for Indians, and for lands which are reserved for their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.

[60] By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit, “to the Government of the Dominion of Canada,” for the Queen and Her successors forever…. The treaty leaves the Indians no right whatever to the timber growing upon the lands which they gave up, which is now fully vested in the Crown, all revenues derivable from the sale of such portions of it as are situate within the boundaries of Ontario being the property of that Province.

7. The status of statehood is implicit in the designation by the proclamation of “Nations or Tribes of Indians.”

The Cherokees are a State. They have been uniformly treated as a State since the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war; of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our Government plainly recognize the Cherokee Nation as a State, and the Courts are bound by those acts.2

8. John Burke, Osborn’s Concise Law Dictionary, 6th ed., Sweet & Maxwell, London, 1976, defined sovereignty in the unitary state of the United Kingdom:

Sovereignty. The supreme authority in an independent political society. It is essential indivisible and illimitable (Austin). However, it is now considered both divisible and limitable. Sovereignty is limited externally by the possibility of a general resistance. Internal sovereignty is paramount power over all action within, and is limited by the nature of the power itself. In the British Constitution the Sovereign de jure is the Queen or Crown. The legislative sovereign is the Queen in Parliament, which can make or unmake any law whatever. The legal sovereign is the Queen and the Judiciary. The executive sovereign is the Queen and her Ministers. The de facto or political sovereign is the electorate; the Ministry resign on a defeat at a general election.

9. Indigenous internal sovereignty is unique relative to Canada in virtue of its doctrine of discovery, its royal proclamation and the St. Catherine’s precedent.

10. The sovereign Indigenous power of veto in Canada over land development, then, consists in the right to say ‘no’ to the making of a treaty surrendering their beneficial interest (actual possession and exclusive use) in all land “not ceded to or purchased by Us” within the meaning of the Royal Proclamation of 1763. The indigenous peoples are entitled to veto developments by vetoing the applications for their consent to the use of the land without which development can not take place. Development is settlement and the proclamation orders settlers off land not proven by the Crown or its third-party grantees to be ceded.

  1. A compactly expressed and deeply entrenched principle of law.
  2. See, Cherokee Nation v. State of Georgia, 30 U.S. 1, 1-2 (1831):

The Sovereign Indigenous Power of Veto in Canada

1. The Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia, 2014 S.C.C. 44, [2014] 2 S.C.R. 256 erred as a matter of law by interpreting section 35(1):— in breach of the maxim1 interpretatio cessat in claris [interpretation stops when a text is clear]; since, as held in R. v. Nicholas, 232 A.P.R.248, ¶9 (1988), by Justice Dickson of the New Brunswick Court of Queen’s Bench, the “use of the expression existing aboriginal and treaty rightsin s. 35(1) can only be taken to mean those rights as they existed on April 17, 1982,” the day Canada’s Constitution Act, 1982, came into force and effect by the royal assent. [Emphasis added.]

2. Section 35(1) of the Constitution Act, 1982, unambiguously enacted, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

3. The following excerpts read together from Tsilhqot’in Nation are extrajudicial errors based on “interpreting” section 35(1):

[1] What is the test for Aboriginal title to land?  If title is established, what rights does it confer? Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157, apply to land covered by Aboriginal title?  What are the constitutional constraints on provincial regulation of land under Aboriginal title?  Finally, how are broader public interests to be reconciled with the rights conferred by Aboriginal title?  These are among the important questions raised by this appeal. [Emphasis added]

[23] … cases such as this require an approach that results in decisions based on the best evidence that emerges, not what a lawyer may have envisaged when drafting the initial claim.  What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal.  It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved. [Emphasis added]

[71] What remains, then, of the Crown’s radical or underlying title to lands held under Aboriginal title?  The authorities suggest two related elements — a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35 of the Constitution Act, 1982. The Court in Delgamuukw referred to this as a process of reconciling Aboriginal interests with the broader public interests under s. 35 of the Constitution Act, 1982. [Emphasis added]

[88] In summary, Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out — that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.  Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group. [Emphasis added]

[113] And what about the long period of time during which land claims progress and ultimate Aboriginal title remains uncertain? During this period, Aboriginal groups have no legal right to manage the forest; their only right is to be consulted, and if appropriate, accommodated with respect to the land’s use: Haida.

[125] As discussed earlier, to justify an infringement, the Crown must demonstrate that: (1) it complied with its procedural duty to consult with the right holders and accommodate the right to an appropriate extent at the stage when infringement was contemplated; (2) the infringement is backed by a compelling and substantial legislative objective in the public interest; and (3) the benefit to the public is proportionate to any adverse effect on the Aboriginal interest.  This framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians. [Emphasis added]

[139] As discussed, s. 35 of the Constitution Act, 1982 imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title.  Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group.  The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society. [Emphasis added]

4. The preceding excerpts identify a revolutionary political regime arrived at by improperly interpreting section 35 by means of “openly declaring a new principle of law.” The new principle introduces expropriation into the native and newcomer relationship and by so doing, were it not extrajudicial, effectively would put an end to the independent indigenous statehood that has survived. A.V. Dicey, Lectures on the Relation between Law and Public Opinion in England in the Nineteenth Century, 1905, (at page 483), delivered a critical legal opinion about the limits on the judicial power:

Judge-made law is subject to certain limitations. It can not openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or the application or interpretation of some statutory enactment. [Emphasis added]

5. James Kirby (2018), in an article entitled “A. V. Dicey and English constitutionalism,” History of European Ideas, accounted for the significance of Dicey:

Abstract: The jurist A. V. Dicey’s study of the Law of the Constitution (1885) has been since its publication the dominant analysis of the British constitution and the source of orthodoxy on such subjects as parliamentary sovereignty and the rule of law. This canonical status has obscured the originality of Dicey’s ideas in the history of legal and political thought. Dicey reworked the traditional idea of sovereignty into two separate concepts – legal and political sovereignty – in order to square the common law notion of the sovereignty of parliament with the democratic idea of the sovereignty of the people. He forged a new concept – “the rule of law” – to explain the legal basis of liberty in common law countries in a manner that was both Benthamite and constitutionalist. Finally, he provided a democratic and anti-federalist rationale for maintaining the Union of Great Britain and Ireland. This majoritarian, centralist and utilitarian constitutionalism has been one of the most enduring products of Victorian scholarship. This article seeks to recover it in its original context and, in so doing, to show the value of reintegrating legal thought into the mainstream of modern British history and the history of political thought.

6. The Supreme Court’s interpretation of Tsilhqot’in Nation thus purports to supersede the previously established definition of “existing aboriginal rights” within the meaning of section 35(1) of the Constitution Act, 1982 by inventing new law. The “superseded” (if that were possible in lieu of a legislative constitutional amendment) constitutional law is provided by three constitutive authorities, namely:

(a) by the Canadian common law case on the doctrine of discovery, being Connolly v. Woolrich, (1867), 11 L.C.J. 197, 205-207 (S.C. Quebec) which confirmed the continuity of the indigenous jurisdiction to create their own law governing themselves and their beneficial interest:

…will it be contended that the territorial rights, political organization such as it was, or the laws of the Indian tribes, were abrogated that they ceased to exist when these two European nations began to trade with the aboriginal occupants? In my opinion, it is beyond controversy that they did not, that so far from being abolished, they were not even modified in the slightest degree in regard to the civil rights of the natives. As bearing upon this point, I cannot do better than to cite the decision of learned and august tribunal the Supreme Court of the United States. In the celebrated case of Worcester against the State of Georgia, (6th Peters Reports, pages 515-542), Chief Justice Marshall perhaps one of the greatest lawyers of our times in delivering the judgment of the Court, said:

America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.
After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in the possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting and fishing.
Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the Creator of all things, conferred these rights over hunters and fishermen, on agriculturalists and manufacturers?
But power, war, conquest give rights, which after possession, are conceded by the world; and that can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might shed some light on existing pretensions.
The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any of them to grasp the whole; and the claimants too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously for all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession. Johnson vs. McIntosh, 8 Wheaton’s Rep., 543.
This principle, acknowledged by all Europeans, because it was in the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one that could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.
The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this preemptive privilege in the particular place. The United States succeeded to all, the claims of Great Britain, both territorial and political; but no attempt so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist; are asserted by the one, and admitted by the other.
Soon after Great Britain determined upon planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect claim; nor was it so understood.
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.

Though speaking more particularly of Indian lands and territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines, is manifest throughout. The principles laid down in this judgment, (and Mr. Justice Story as a Member of the Court concurred in this decision), admit of no doubt.

(b) the constitutional legislation being the Indian part of the Royal Proclamation of 1763 which, excerpted, enacted:

[Paragraph 1] And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure, that no Governor or Commander in Chief…do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands…upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.

[Paragraph 3] And We do further strictly enjoin and require all Persons whatever, who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands, which, not having been ceded to, or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

[Paragraph 4]…if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, that same shall be purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in Chief of Our Colonies respectively, within which they shall lie:…

(c) the proclamation’s original and authoritative precedent being St. Catherine’s Milling and Lumber Company Ltd. v. The Queen, (1888), 14 A.C. 46 (J.C.P.C.), which held:

[52-53] Of the territory thus ceded to the Crown, an area of not less than 32,000 square miles is situated within the boundaries of the Province of Ontario; and, with respect to that area, a controversy has arisen between the Dominion and Ontario, each of them maintaining that the legal effect of extinguishing the Indian title has been to transmit to itself the entire beneficial interest of the lands, as now vested in the Crown, freed from encumbrance of any kind, save the qualified privilege of hunting and fishing mentioned in the treaty….Although the present case relates exclusively to the right of the Government of Canada to dispose of the timber in question to the appellant company, yet its decision necessarily involves the determination of the larger question between that government and the province of Ontario with respect to the legal consequences of the treaty of 1873.

[54] Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty.

[55] It appears to them [their Lordships] to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

[58] The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden. The ceded territory was at the time of the union, land vested in the Crown, subject to “an interest other than that of the Province in the same,” within the meaning of sect. 109; and must now belong to Ontario in terms of that clause,…

[59] The fact that the power of legislating for Indians, and for lands which are reserved for their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.

[60] By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit, “to the Government of the Dominion of Canada,” for the Queen and Her successors forever…. The treaty leaves the Indians no right whatever to the timber growing upon the lands which they gave up, which is now fully vested in the Crown, all revenues derivable from the sale of such portions of it as are situate within the boundaries of Ontario being the property of that Province.

7.  The status of statehood is implicit in the designation by the proclamation of “Nations or Tribes of Indians.”2

The Cherokees are a State. They have been uniformly treated as a State since the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war; of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our Government plainly recognize the Cherokee Nation as a State, and the Courts are bound by those acts.

8.  John Burke, Osborn’s Concise Law Dictionary, 6th ed., Sweet & Maxwell, London, 1976, defined sovereignty in the unitary state of the United Kingdom:

Sovereignty. The supreme authority in an independent political society. It is essential indivisible and illimitable (Austin). However, it is now considered both divisible and limitable. Sovereignty is limited externally by the possibility of a general resistance. Internal sovereignty is paramount power over all action within, and is limited by the nature of the power itself. In the British Constitution the Sovereign de jure is the Queen or Crown. The legislative sovereign is the Queen in Parliament, which can make or unmake any law whatever. The legal sovereign is the Queen and the Judiciary. The executive sovereign is the Queen and her Ministers. The de facto or political sovereign is the electorate; the Ministry resign on a defeat at a general election.

9. Indigenous internal sovereignty is unique relative to Canada in virtue of its doctrine of discovery, its royal proclamation and the St. Catherine’s precedent.

10. The sovereign Indigenous power of veto in Canada over land development, then, consists in the right to say ‘no’ to the making of a treaty surrendering their beneficial interest (actual possession and exclusive use) in all land “not ceded to or purchased by Us” within the meaning of the Royal Proclamation of 1763. The indigenous peoples are entitled to veto developments by vetoing the applications for their consent to the use of the land without which development can not take place. Development is settlement and the proclamation orders settlers off land not proven by the Crown or its third-party grantees to be ceded.

  1. A compactly expressed and deeply entrenched principle of law.
  2. See, Cherokee Nation v. State of Georgia, 30 U.S. 1, 1-2 (1831):

Challenging Orthodoxies: Alabama’s Anti-Abortion Law

It seems like a grand ploy of massive distraction.  On the surface, the move by Alabama to place the most onerous restrictions on the granting of an abortion has become a lighting-rod of conviction for Democrat agitators.  And not just them.

The fear, and one with suggestive implication, is that various legislatures are paving the way to push Roe v Wade into the domain of a Supreme Court so conservative it is being touted as reactionary.  Colorado lawmakers, earlier this year, made a similar attempt to pass a bill banning elective abortions every bit as nasty as the Alabama version. The feeling is that the 1973 decision will be terminated in the name of foetus worship taking way the injunction against states from interfering in a woman’s right to an abortion within the first trimester.

Roe was never, in truth, such a radical innovation in the field of social reform.  It, for one, heavily circumscribes the way choice operates for a woman in terms of her relationship with the foetus.  Its celebration of a woman’s autonomy leaves the designation of how it is used, not in the hands of the carrier, but the Supreme Court.

What certain stone throwing conservatives have repeatedly disliked about it is that the decision was reformist at all. “Roe,” tut tuts Rich Lowry of the National Review, “is judicially wrought social legislation pretending to the status of constitutional law.”  It was a product of such judicial activism that produced the Miranda and Griswold cases, “as much a highhanded attempt to impose a settlement on a hotly contested political question as the abhorrent Dred Scott decision denying the rights of blacks.”

Lowry’s swipe belies the broader problem facing anti-abortion advocates, many of whom simply think that the legislators in that good red state have lost the plot.  The Alabama move is being seen on the part of some on the right as too extreme, painting advocates who favour limiting abortion into a narrow, extreme corner.  In the words of conservative pundit Jonathan V. Last, having such a law was the very counter-reproductive thing the movement feared, “the most damaging development to the pro-life movement in decades.”

HB314 is a heavy artillery shell for the anti-abortion movement, reclassifying abortion as a Class A felony. The implication of this is gruesome enough: those found guilty of falling foul of the law, notably those providing such services, may spend up to 99 years in prison.

Alabama governor, Kay Ivey, ennobled bill HB314 with words mindful of the great Sky God that continues to mark significant stretches of US political thought. (In Freedom’s Land, the unseen and unknowable have traditional anti-democratic tendencies.)  “To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” HB314’s sponsor, Rep Terry Collins, was attempting to be more pragmatic in a political sense, claiming that HB314 was part of the grand plan to subvert and ultimately sink Roe v Wade.

The media presses in Alabama have been filled with pungent responses, many indignant, others glazing in their holy reflection.  A Guest Voices segment for AL.com, part of the Alabama Media Group, made rich reading.  Rene Washington of Birmingham refused to accept the anti-abortion rights law as one of protecting life. “The abysmal statistics on children’s health and welfare prove that.”  The ban was a traditional, based on old issues of control, be they “religious, patriarchal and cultural.”

Savannah Crabtree, keen to remind us of her age (23 years old), wrote of having a uterus and living in the state of Alabama. “And I am scared.”  A troubled Crabtree was puzzled that the governor had expressed no reservation, racing the bill into law. “I hoped that maybe, because she is a woman, she’d empathize with a 12-year-old rape victim seeking an abortion more so than the 25 men who voted on the bill in the Senate did.”

The worriers and activists have come out.  “This,” laments Democratic strategist Jess McIntosh, “is the endgame of many years chipping away at our freedoms.” For McIntosh, a tyrannical instinct is finally being played out in US jurisprudence – a play, as it were, to alter the court’s reformist agenda.  “They’ve waited for the moment they believed the courts would overturn precedent and go against the overwhelming will of the people.”

For a strategist, McIntosh is far from sharp.  (She did work for Hillary Clinton’s 2016 campaign.)  The Alabama law, along with any aspiring facsimiles, risks falling at the first hurdle, given that an appellate court is bound to give defenders of the bill a good going over.  The issue of placing “undue burdens” on a woman’s access to abortion services would come into play.  As Kim Wehle explains, the Alabama law is “by any stretch” an “undue burden” because it entails no abortions except in instances where the “unborn child has a lethal anomaly” in order “to avoid serious risk to the unborn child’s mother” or in instances of “ectopic pregnancies” (where the fertilized egg finds itself implanted outside the uterus, often in fallopian tubes which might burst causing bleeding, infection and death to the mother).

Keeping the Democrats noisily busy is a Trump tactic, and he has kept markedly reticent on not wishing to push views on the Alabama move.  A tweet re-iterated his stance as being “strongly pro-life, with three exceptions – rape, incest and protecting the life of the mother.”  It was, he suggested, “the same position taken by Ronald Reagan.”  Similar exceptions can be found in thirty-three states and the District Colombia, which allow funding for the tripartite list of exceptions.  A range of superstitions dot the legislative provisions of other states: five, for instance, demand that women be counselled on a claimed link between abortion and breast cancer, one firmly lodged in the realm of fantasy.

Alabama’s HB314, however, in its crudely blanket application, leaves minimal room for exceptions.  It is savagely onerous, even for conservatives.  The wheels may well be in motion for certain brands of foetus defenders, but citizens with uteri can well be comforted that they will move in retarded fashion.

The Sovereign Indigenous Power of Veto in Canada

1. The Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia, 2014 S.C.C. 44, [2014] 2 S.C.R. 256 erred as a matter of law by interpreting section 35(1):— in breach of the maxim1 interpretatio cessat in claris [interpretation stops when a text is clear]; since, as held in R. v. Nicholas, 232 A.P.R. 248, ¶9 (1988), by Justice Dickson of the New Brunswick Court of Queen’s Bench, the “use of the expression existing aboriginal and treaty rights in s. 35(1) can only be taken to mean those rights as they existed on April 17, 1982,” the day Canada’s Constitution Act, 1982, came into force and effect by the royal assent. [Underlining added.]

2. Section 35(1) of the Constitution Act, 1982, unambiguously enacted, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

3. The following excerpts read together from Tsilhqot’in Nation are extrajudicial errors based on “interpreting” section 35(1):

[1] What is the test for Aboriginal title to land? If title is established, what rights does it confer? Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157, apply to land covered by Aboriginal title? What are the constitutional constraints on provincial regulation of land under Aboriginal title? Finally, how are broader public interests to be reconciled with the rights conferred by Aboriginal title? These are among the important questions raised by this appeal. [Emphasis added]

[23] … cases such as this require an approach that results in decisions based on the best evidence that emerges, not what a lawyer may have envisaged when drafting the initial claim. What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society. A technical approach to pleadings would serve neither goal. It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter. Only thus can the project of reconciliation this Court spoke of in Delgamuukw be achieved. [Emphasis added]

[71] What remains, then, of the Crown’s radical or underlying title to lands held under Aboriginal title? The authorities suggest two related elements — a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35 of the Constitution Act, 1982. The Court in Delgamuukw referred to this as a process of reconciling Aboriginal interests with the broader public interests under s. 35 of the Constitution Act, 1982. [Emphasis added]

[88] In summary, Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out — that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations. Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group. [Emphasis added]

[113] And what about the long period of time during which land claims progress and ultimate Aboriginal title remains uncertain? During this period, Aboriginal groups have no legal right to manage the forest; their only right is to be consulted, and if appropriate, accommodated with respect to the land’s use: Haida.

[125] As discussed earlier, to justify an infringement, the Crown must demonstrate that: (1) it complied with its procedural duty to consult with the right holders and accommodate the right to an appropriate extent at the stage when infringement was contemplated; (2) the infringement is backed by a compelling and substantial legislative objective in the public interest; and (3) the benefit to the public is proportionate to any adverse effect on the Aboriginal interest. This framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians. [Emphasis added]

[139] As discussed, s. 35 of the Constitution Act, 1982 imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title. Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group. The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society. [Emphasis added]

4. The preceding excerpts identify a revolutionary political regime arrived at by improperly interpreting section 35 by means of “openly declaring a new principle of law.” The new principle introduces expropriation into the native and newcomer relationship and by so doing, were it not extrajudicial, effectively would put an end to the independent indigenous statehood that has survived. A.V. Dicey, Lectures on the Relation between Law and Public Opinion in England in the Nineteenth Century, 1905, (at page 483), delivered a critical legal opinion about the limits on the judicial power:

Judge-made law is subject to certain limitations. It can not openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or the application or interpretation of some statutory enactment. [Emphasis added]

5. James Kirby (2018), in an article entitled “A. V. Dicey and English constitutionalism,” History of European Ideas, accounted for the significance of Dicey:

Abstract: The jurist A. V. Dicey’s study of the Law of the Constitution (1885) has been since its publication the dominant analysis of the British constitution and the source of orthodoxy on such subjects as parliamentary sovereignty and the rule of law. This canonical status has obscured the originality of Dicey’s ideas in the history of legal and political thought. Dicey reworked the traditional idea of sovereignty into two separate concepts – legal and political sovereignty – in order to square the common law notion of the sovereignty of parliament with the democratic idea of the sovereignty of the people. He forged a new concept – “the rule of law” – to explain the legal basis of liberty in common law countries in a manner that was both Benthamite and constitutionalist. Finally, he provided a democratic and anti-federalist rationale for maintaining the Union of Great Britain and Ireland. This majoritarian, centralist and utilitarian constitutionalism has been one of the most enduring products of Victorian scholarship. This article seeks to recover it in its original context and, in so doing, to show the value of reintegrating legal thought into the mainstream of modern British history and the history of political thought.

6. The Supreme Court’s interpretation of Tsilhqot’in Nation thus purports to supersede the previously established definition of “existing aboriginal rights” within the meaning of section 35(1) of the Constitution Act, 1982 by inventing new law. The “superseded” (if that were possible in lieu of a legislative constitutional amendment) constitutional law is provided by three constitutive authorities, namely:

(a) by the Canadian common law case on the doctrine of discovery, being Connolly v. Woolrich, (1867), 11 L.C.J. 197, 205-207 (S.C. Quebec) which confirmed the continuity of the indigenous jurisdiction to create their own law governing themselves and their beneficial interest:

…will it be contended that the territorial rights, political organization such as it was, or the laws of the Indian tribes, were abrogated that they ceased to exist when these two European nations began to trade with the aboriginal occupants? In my opinion, it is beyond controversy that they did not, that so far from being abolished, they were not even modified in the slightest degree in regard to the civil rights of the natives. As bearing upon this point, I cannot do better than to cite the decision of learned and august tribunal the Supreme Court of the United States. In the celebrated case of Worcester against the State of Georgia, (6th Peters Reports, pages 515-542), Chief Justice Marshall perhaps one of the greatest lawyers of our times in delivering the judgment of the Court, said:

America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors. After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in the possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting and fishing.

Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the Creator of all things, conferred these rights over hunters and fishermen, on agriculturalists and manufacturers?

But power, war, conquest give rights, which after possession, are conceded by the world; and that can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might shed some light on existing pretensions.

The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any of them to grasp the whole; and the claimants too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously for all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession. Johnson vs. McIntosh, 8 Wheaton’s Rep., 543.

This principle, acknowledged by all Europeans, because it was in the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one that could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.

The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this preemptive privilege in the particular place. The United States succeeded to all, the claims of Great Britain, both territorial and political; but no attempt so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist; are asserted by the one, and admitted by the other.

Soon after Great Britain determined upon planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect claim; nor was it so understood.

Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.

Though speaking more particularly of Indian lands and territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines, is manifest throughout. The principles laid down in this judgment, (and Mr. Justice Story as a Member of the Court concurred in this decision), admit of no doubt.

(b) the constitutional legislation being the Indian part of the Royal Proclamation of 1763 which, excerpted, enacted:

[Paragraph 1] And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure, that no Governor or Commander in Chief…do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands…upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.

[Paragraph 3] And We do further strictly enjoin and require all Persons whatever, who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands, which, not having been ceded to, or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

[Paragraph 4]…if, at any Time, any of the said Indians should be inclined to dispose of the said Lands, that same shall be purchased only for Us, in Our Name, at some publick Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in Chief of Our Colonies respectively, within which they shall lie:…

(c) the proclamation’s original and authoritative precedent being St. Catherine’s Milling and Lumber Company Ltd. v. The Queen, (1888), 14 A.C. 46 (J.C.P.C.), which held:

[52-53] Of the territory thus ceded to the Crown, an area of not less than 32,000 square miles is situated within the boundaries of the Province of Ontario; and, with respect to that area, a controversy has arisen between the Dominion and Ontario, each of them maintaining that the legal effect of extinguishing the Indian title has been to transmit to itself the entire beneficial interest of the lands, as now vested in the Crown, freed from encumbrance of any kind, save the qualified privilege of hunting and fishing mentioned in the treaty….Although the present case relates exclusively to the right of the Government of Canada to dispose of the timber in question to the appellant company, yet its decision necessarily involves the determination of the larger question between that government and the province of Ontario with respect to the legal consequences of the treaty of 1873.

[54] Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty.

[55] It appears to them [their Lordships] to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.

[58] The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden. The ceded territory was at the time of the union, land vested in the Crown, subject to “an interest other than that of the Province in the same,” within the meaning of sect. 109; and must now belong to Ontario in terms of that clause,…

[59] The fact that the power of legislating for Indians, and for lands which are reserved for their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.

[60] By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit, “to the Government of the Dominion of Canada,” for the Queen and Her successors forever…. The treaty leaves the Indians no right whatever to the timber growing upon the lands which they gave up, which is now fully vested in the Crown, all revenues derivable from the sale of such portions of it as are situate within the boundaries of Ontario being the property of that Province.

7. The status of statehood is implicit in the designation by the proclamation of “Nations or Tribes of Indians.” See, Cherokee Nation v. State of Georgia, 30 U.S. 1, 1-2 (1831):

The Cherokees are a State. They have been uniformly treated as a State since the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war; of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our Government plainly recognize the Cherokee Nation as a State, and the Courts are bound by those acts.

8. John Burke, Osborn’s Concise Law Dictionary, 6th ed., Sweet & Maxwell, London, 1976, defined sovereignty in the unitary state of the United Kingdom:

Sovereignty. The supreme authority in an independent political society. It is essential indivisible and illimitable (Austin). However, it is now considered both divisible and limitable. Sovereignty is limited externally by the possibility of a general resistance. Internal sovereignty is paramount power over all action within, and is limited by the nature of the power itself. In the British Constitution the Sovereign de jure is the Queen or Crown. The legislative sovereign is the Queen in Parliament, which can make or unmake any law whatever. The legal sovereign is the Queen and the Judiciary. The executive sovereign is the Queen and her Ministers. The de facto or political sovereign is the electorate; the Ministry resign on a defeat at a general election.

9. Indigenous internal sovereignty is unique relative to Canada in virtue of its doctrine of discovery, its royal proclamation and the St. Catherine’s precedent.

10. The sovereign Indigenous power of veto in Canada over land development, then, consists in the right to say ‘no’ to the making of a treaty surrendering their beneficial interest (actual possession and exclusive use) in all land “not ceded to or purchased by Us” within the meaning of the Royal Proclamation of 1763. The indigenous peoples are entitled to veto developments by vetoing the applications for their consent to the use of the land without which development can not take place. Development is settlement and the proclamation orders settlers off land not proven by the Crown or its third-party grantees to be ceded.

  1. A compactly expressed and deeply entrenched principle of law.

BUI: Born Under the Influence

Some of it is physical, but there’s more than muscle and mass to consider.  Men seem to perceive, process, and react differently than women.  A biological base to our differences is obvious, as is the likely interplay of socialization.  It’s not necessarily a negative: male specialization has been integral to the survival of our species.  Physical strength, aggression, and audacious behavior have enabled males to nurture and protect tribal identity, while concurrently spreading their half of the genetic seed.  But it’s not always a positive either: male aggression and perilous behavior can also be lethal to tribe, family, and self, especially in today’s world where masculinity is combined with modern technology.

Male boldness is visible and well documented.  4,833 people have climbed to the top of Mt. Everest (thru 2018).  288 have died in the attempt.  89% of the climbers were male and they comprised 96% of all deaths.  In 2017, Alex Honnold scaled the 3,000 foot shear face of Yosemite’s El Capitan alone, without aid of ropes or safety gear.  He’s made similar vertical climbs at other imposing cliff sites (as of this writing, he’s still alive).  At least 31 wingsuit BASE jumpers plummeted to their deaths in 2016; apparently all were male.  These risk takers are (or were) all brave, though not necessarily heroic individuals.  Their feats were performed not to escape or disable danger, but to experience it.  Such flirtations with death pose immense self risk, but little danger to others.  The same cannot be said for all male inclination towards audacious behavior.

We (males) capriciously put lives at risk, including our own, for no apparent survival benefit.  Often our displays are acts of aggression, and they’re not always just angry reactions.  Sometimes our behavior is planned; sometimes it’s simply bizarre and beyond rational explanation.  It’s not quite monopolized; females too, are seen to exhibit such behavior, but not nearly to the extent observed in males.

Males commit 70% to 90% of all murders.  Men perpetrate about 98% of all mass killings and constitute at least 90% of all modern day serial killers.  In domestic settings, 80% of spousal murders are committed by men, and in the workplace, males account for 97% of all rampage style killings.  The propensity towards violence and instability is clearly evident.  Less visible are some underlying neurological conditions that might give biological evidence to male associated instability. Men are three times more likely to be born with ADHD.  There are also several neurological diseases that display earlier and more severely in males: OCD (obsessive compulsive disorder), schizophrenia, and bipolar disorder are three following that pattern.  Later in life, males are twice as likely to exhibit symptoms of Parkinson’s disease.  None of these conditions are twined to a misanthropic nature, but they do indicate the presence of neurological instabilities that are closely associated with males.  That these recognized expressions exist provides reason to suspect the existence of other less conspicuous volatilities; predispositions that trigger some of our male associated acts of violence.

What Lies Beneath?

Brain Wave (by Poul Anderson) was a 1953 science fiction novel that posited the earth finally passing out of a stellar radiation field that had dampened cognitive function for eons.  Suddenly, every earthly animal with neurological activity became five times more conscious.  Humans, along with all animal species, were no longer cognitively suppressed (leading to human/non-human ethical complications).  Could something in that fiction be relevant to our nonfictional reality?  We like to think of ourselves as being completely aware, with an unimpeded rational thought process.  Maybe we’re not really so free and unimpeded.  Maybe evolution (rather than cosmic radiation) has bent us towards behavior patterns of which we take little notice.  We (males) have a shown proclivity to exhibit risky, bizarre, and violent behavior, yet are inclined to see ourselves as being completely cool and rational: “I’m totally okay” (even when it’s clear that some of us aren’t).

It might be comparable to alcohol.  In the history of the world, has any man in any bar, ever felt unable to drive home safely after two drinks?  We look around and observe others who are clearly inebriated and pose danger on the road, but see ourselves as completely unimpaired.  We might shake our head when another with five or eight drinks loudly declares himself still fit to drive; we ourselves have had two, yet clearly have it all together.  We’re under the influence, but don’t admit or even feel it.  We might drive home a thousand times without a mishap, but the two drinks have sent alcohol to our brain and have made our travel less certain.

Our male propensity for risk and violence is like that: we’re all at least “two drinks” along, but feel sober (and those further along than just two are equally confident).  Individually we think we pose no danger, but in fact have always been under the influence.  We’ve never known sobriety; two drinks minimum is our only plane of reference; our condition feels normal and unimpaired.  It’s not always a fixed plane; our level of impairment is multiplied by external events: humiliation, a terminated relationship, substance abuse, loss of employment, financial setback, etc.  From whatever baseline, we jump ahead and are suddenly more than just two drinks under and are no longer even close to “okay”.  We’re in a heightened state of flux and not quite predictable.  After an eruption, it’s not uncommon to hear: “He didn’t seem like the type.” or “I didn’t see it coming.”

So there’s a biological “drunkenness” that leaves males more inclined to exhibit risky, aggressive, and even misanthropic behavior with little pause for reflection.  It’s not the boldness, but various expressions of violence that arouse concern, especially in this era of lethal weaponry when an individual gone amok can reek havoc on so many.  When it happens, the easily available weapon of choice is usually a gun.

It took sober minded mothers (MADD) to arouse awareness and activate meaningful DUI regulation.  Recently, it’s activist children (Parkside) trying to motivate the nation to meaningful confrontation of another glaring danger: the proliferation of guns.  There’s something telling in that it took our mothers to awaken us to the drinking/driving/death reality, and it’s now taking children to shake us from the stupor of a nation’s infatuation with guns.

So Many Guns

We’ve a long history with guns. They’ve been present through all of U.S. history and the prior European conquest of America.  In some form or another, hand held guns have killed for more than 500 years.  That’s a lot of years, but just a blip on the historical time line of humans killing one another; guns have simply made the process more efficient and impersonal.  As with other human innovations, firearm refinements have come incrementally.  Bit by bit, they’ve morphed into incredible deadly machines.  Guns of today have visual resemblance (triggers and barrels) to early predecessors; beyond that, the similarities fade.  It’s now “rate of fire” per second rather than “rate of fire” per minute. While the lethal power of our weaponry has continuously advanced, human nature hasn’t.  Our mental/emotional soundness is as fragile (or inebriated) today as it was ten thousand years ago; we’ve armed our Stone Age mindset with 21st century killing machines.

Throw a dart at the calendar.  The gun statistics (U.S.) for that one single day will likely include the following: 135 gun related incidents, 37 murders (7 children), and 63 injuries.  Mention of a particular mass shooting will probably be old news, because one happens about every 30 hours.  Nearly everyone of these gun related acts of violence will be perpetrated by a male.

Gun ownership appears ubiquitous and nearly religious (“a god-given right”).  The U.S. adult population (15 & above) is roughly 265 million.  There are approximately 310 million civilian owned firearms in the USA.  That’s more than enough to arm every adult (except that 3% of all gun owners own 50% of the guns).  At least 39% of adult males claim to own guns, while female gun ownership is pegged at 22%.  About 42% of all homes have at least one gun present.

So Little Need

It’s a bizarre reality: so many guns and so little need.  Law enforcement has a need (much of it to deal with the 310 million civilian guns in circulation).  Some ranchers, farmers, and rural dwellers can claim a legitimate need for livestock protection and pest control.  Far on the fringes, there might still be some for whom a gun is needed to provide food and protection.  For the vast majority, though, that time has long past.  We have no survival need to hunt; shooting animals has become little more than a traditional exercise or an entertainment venue.  Most gun ownership for protection is delusional; the presence of a gun actually increases the likelihood of both personal and household victimization.  Why then, the infatuation?  At least a few reasons present themselves: tradition, machismo, fear, and NRA/weapons industry marketing.  We (especially males) have been targeted by gun makers, and our BUI mentality provides an easy mark.  The NRA’s marketing campaigns have always nurtured ego enhancement through conflation of gun ownership and ideals of strength, independence, and patriotism.  Invariably, the Second Amendment is called upon to portray weapon ownership as an expression of patriotic fervor.  Posing private gun ownership as protection from tyranny or foreign invasion is obsolete by about a century.  It’s now little more than a “two drink” fantasy; a passionate hustle aimed at those of us under the influence.

The birth of our nation occurred in the flint-lock musket era of small arms development.  It was state of the art technology that required 20 seconds of practiced reloading time.  A skilled and calm soldier (or civilian) could fire up to three rounds a minute, if aiming time was minimal.  Armies were without airplanes, tanks, helicopters, missiles, etc.  Aside from rather bulky cannons, soldiers armed with muskets provided the essence of battlefield might.  Anyone with tradable goods or financial means could acquire a musket and be as well armed as any soldier in any army.  The Second Amendment of 1791 provided the authorization for a state to reach an armed equivalency to federal or foreign armies (protection from tyranny): “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  In 1791, “well-regulated Militias” were today’s National Guards, and armed equivalency required only muskets.

Second Amendment Fog

The Second Amendment is now cited as providing the Constitutional right of all citizens to own virtually any type of hand weapon.  They’re no longer “three shots per minute” muskets; with today’s modern machines, a semi-automatic rifle enthusiast can easily fire 60 deadly bullets in a minute (without aid of a “bump stock”).  However incredible the fire power, our armed citizens lack equivalency to National Guard troops, the U.S. military, or supposed foreign invaders.  In whatever imagined standoff, automated rifles would provide but token resistance to the array of weaponry available to state supported military forces.  Citizens armed with modern rifles afford no significant protection from tyranny; they have meaningful significance only to the non-military victims they’ve come to target.

The NRA and arms industry is undeterred by that reality; they continue to market weaponry as the patriotic expression of constitutional rights.  The ad campaigns have evolved and spiraled into themselves: guns for patriotism, guns for sport, guns for self enhancement, and guns to protect against people with guns.  The circle of death is complete: with a population already saturated with weapons, gun ownership is now promoted as necessary protection against the success of previous marketing campaigns (imagine the tobacco industry promoting active cigarette consumption as protection against second hand smoke).

Dire Straits

Our situation needs acknowledgement: born under the influence and guns all around.  The statistics are undeniable; we (males) are prone to acts of audacious behavior that are often violent and even misanthropic.  It’s obvious we need some separation from the weapons that magnify the repercussions of our instability.  It’s a need resisted; we’re under the influence, yet sure of our clarity.  We look about and all is normal.

It’s normal; we accept forty thousand gun deaths a year through murder and suicide.  It’s normal; we accept the marketing and political manipulation.  It’s normal because we provide the votes.  It’s normal because we purchase the guns.  It’s normal because we’re under the influence.

A Passage Through

If meaningful regulation is ever to occur, it will likely come through those least under the influence: female activists and legislators.  Mothers Against Drunk Driving (MADD) did it in 1980 (but faced less resistance).  Perhaps the recent influx of female representation in the legislative body will be the catalyst to sustained effort.  There are some positive signs: the Violence Against Women Act (VAWA), revival of industry accountability, the curbing of bump stocks.  To be meaningful and lasting, true gun regulation will necessitate actual reduction of weapons in circulation; both number and type.  True regulation will remove the most egregious weapons that make mass killings easy, and will attempt to keep guns from the hands of those demonstrably under the influence.

The industry, its political sycophants, and those most under the influence will howl about loss of freedom, liberty, and constitutional rights.  It’s obfuscation; the only thing truly lost will be a quick and easy route to murder and mass killings.  Even if erring on the side of caution, nothing more than this will occur: accessibility to a machine whose sole function is to kill will be lost to one deemed most likely to use it.  The “loss” is really a freedom gained.  It would allow for passage through a dangerous period of instability: someone under the influence will not become a murderer, and those who might have died will still be alive.  Regulation means only that and nothing more (when under the influence, it’s easy to feel otherwise).

• Photo can be viewed here

Republicrats: Begin Anew!

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.

— Abraham Lincoln, Gettysburg Address, November 19, 1863

Lord, what fools these mortals be!

— Puck, in A Midsummer’s Night’s Dream

We have not yet reached the horrific insanities of the American Civil War…but we seem hell-bent on approaching that precipice and tumbling over like lemmings following manic “leaders,” disguised as politicians, “educators,” celebrities, journalists and the commentariat, et. al. We are not yet engulfed in Civil War, but we are certainly “testing” whether our nation, “or any nation so conceived and so dedicated, can long endure.”  If it were to come to actual Civil War, given a population that is 10 times what it was 158 years ago, given our dependence on our modern “grid,” our reliance upon drone weapons, and a vulnerable WorldWideWeb where deadly information spreads like cyclonic fires, the horrors we are facing could be many times what America’s soldiers/patriots/and misguided citizens faced back then.

Since the 2016 election, we have been passing through what Kierkegaard might have called “the long night of the soul.”  Accusations and counter-accusations have flown like blind, maddened bats out of the caves of our collective hells, collective guilts.  As we pause at the precipice now (if we are wise and steady enough to pause), we may wonder: What next?  What have we learned?

Though he did not frame it so, the great experiment Lincoln admonished we were “testing” was just what angels-and-demons-wrestling Milton had speculated about two centuries before: “the liberty to know, to utter, and to argue freely according to my conscience.”

But, in our age of Information Overload (or Overkill!), when our news and information is managed and mangled by a handful of media magnates and mega-corporations, their retinue among subservient “noble” (and highly remunerated) classes of attendants/scribes/and lawyerly mouthpieces…how can we hope—no matter how “conceived” and “dedicated”—to grasp and hold such “liberty”?

Dostoyevsky wrote that it was necessary to enter a nation’s prisons to understand its culture.  I taught in prisons for two years and I’ll vouch for Fyodor that it’s still true; but in our day a more handy entry point is through a nation’s media—MSM or “social.”  TV dramas and their sibling newscasts are the muezzins of our popular culture, calling us to a shared, created universe.  How to emerge from Plato’s cave to sunshine?

Is it too much to hope for commonsense and honesty?  Civil discourse to temper civil derangement?  Guidance based on the wisdom of the ages—Socratic, Confucian, Jobian, Sufi (take your pick or mix judiciously)?

In The Ornament of the World, her neglected, modern classic, (unfortunately published about the same time as the headline-engulfing 911 horror), Maria Rosa Menocal describes a “golden age” of medieval Spain, “where for more than seven centuries Muslims, Jews, and Christians lived together in an atmosphere of tolerance…where literature, science, and the arts flourished.”

Seven centuries!  They translated each other’s books; they recognized each other’s human rights; they practiced what they preached.  They learned each other’s languages; participated in the “commonwealth,” respected each other’s traditions, worked towards mutual respect and understanding, intellectual and physical security.

We are all “entangled”!  The scientists describe “quantum entanglement”—how once united quantum particles, though worlds apart, respond correlatively when one part of the particle is “spun” or manipulated in a certain, measurable way.  If true in the quantum world, how not true in the human?

There are two crises that have confronted generations of Americans for decades; crises that metastasize, cost more innocent lives, year after festering year.  The Republicratic factions divide and joust over these crises while innocent Americans are victimized by rapes and killings, drug addictions, fear and loathing.

There is no “manufactured crisis” on our southern border.  Nor is there a “manufactured crisis” about our antiquated gun laws.

If we want to help our neighbors to our South, we can do so in a reasonable, measured way.  Remember John F. Kennedy’s “Alliance for Progress”?  That would be one sort of sensible approach.  Help them “over there” so that they are not victimized by drug cartels, wanting to breach the US borders and cause havoc here.  Who profits from such havoc?

Nor was it a “manufactured crisis” that macerated 17 young lives and traumatized countless others at that Parkland, south Florida high school.  Have we forgotten already?  And the 58 massacred during an outdoor concert in Las Vegas—forgotten?  851 injured by gunfire or the ensuing panic!  “Collateral damage” in our political-media wars?  And how many other thousands and hundreds of thousands of victims?

Our Republicratic factions had better start working together!  $5 billion dollars for a “border wall” is nugatory compared to the tens of billions wasted “controlling” drug addiction here, wasted on poor food quality, the fig leaf of healthcare protection, air and water pollution.

As for our gun laws—where in the 2nd Amendment is there any mention of AK-47s and other mass-killing “automatic” weapons?  The 2nd Amendment is about a “well-regulated militia.”  Is the national government prepared to delegate such power to “well-regulated” militia units?  Can it possibly be right/moral/sensible to delegate such power to individuals?

Let us remember: when our Constitution was written, we were a nation of under 4 million hunters, gatherers, and farmers.  Our weapons were primitive, ball and powder 1-shot affairs!  We lived in small communities where people knew their neighbors.  If the “village idiot” was suddenly roaming about aiming his gun haphazzardly—people sounded the alarm.

Republicrats—walk and chew gum at the same time!  Unite the factions around the principles of safety and common sense.  Stop the anarchy in the nation’s gun laws; stop the anarchy on our southern border!  Reporters and commentariat, Hollywood “celebs,” “educators,” et. al., you need not be “fools” and you must not treat the citizenry as fools.  Begin the renewal!  Secure our sacred “liberty to know, to utter, and to argue freely according to my conscience” and honed understanding.

“That this nation…shall have a new birth of freedom.”

“Freedom from fear.”  Freedom to lead.  Freedom to be the best we can be.

Juan Guaidó: The Man Who Would Be President of Venezuela Doesn’t Have a Constitutional Leg to Stand On

Donald Trump imagines Juan Guaidó is the rightful president of Venezuela. Mr. Guaidó, a man of impeccable illegitimacy, was exposed by Cohen and Blumenthal as “a product of a decade-long project overseen by Washington’s elite regime change trainers.” Argentinian sociologist Marco Teruggi described Guaidó in the same article as “a character that has been created for this circumstance” of regime change. Here, his constitutional credentials to be interim president of Venezuela are deconstructed.

Educated at George Washington University in DC, Guaidó was virtually unknown in his native Venezuela before being thrust on to the world stage in a rapidly unfolding series of events. In a poll conducted a little more than a week before Guaidó appointed himself president of the country, 81% of Venezuelans had never even heard of the 35-year-old.

To make a short story shorter, US Vice President Pence phoned Guaidó on the evening of January 22nd and presumably asked him how’d he like to be made president of Venezuela. The next day, Guaidó announced that he considered himself president of Venezuela, followed within minutes by US President Trump confirming the self-appointment.

A few weeks before on January 5, Guaidó had been installed as president of Venezuela’s National Assembly, their unicameral legislature. He had been elected to the assembly from a coastal district with 26% of the vote. It was his party’s turn for the presidency of the body, and he was hand-picked for the position. Guaidó, even within his own party, was not in the top leadership.

Guaidó’s party, Popular Will, is a far-right marginal group whose most enthusiastic boosters are John Bolton, Elliott Abrams, and Mike Pompeo. Popular Will had adopted a strategy of regime change by extra-parliamentary means rather than engage in the democratic electoral process and had not participated in recent Venezuelan elections.

Although anointed by Trump and company, Guaidó’s Popular Will Party is not representative of the “Venezuelan opposition,” which is a fractious bunch whose hatred of Maduro is only matched by their abhorrence of each other. Leading opposition candidate Henri Falcón, who ran against Maduro in 2018 on a neoliberal austerity platform, had been vehemently opposed by Popular Will who demanded that he join their US-backed boycott of the election.

The Venezuelan news outlet, Ultimas Noticias, reported that prominent opposition politician Henrique Capriles, who had run against Maduro in 2013, “affirmed during an interview that the majority of opposition parties did not agree with the self-swearing in of Juan Guaidó as interim president of the country.”  Claudio Fermin, president of the party Solutions for Venezuela, wrote “we believe in the vote, in dialogue, we believe in coming to an understanding, we believe Venezuelans need to part ways with the extremist sectors that only offer hatred, revenge, lynching.” Key opposition governor of the State of Táchira, Laidy Gómez, has rejected Guaidó’s support of intervention by the US, warning that it “would generate death of Venezuelans.”

The Guaidó/Trump cabal does not reflect the democratic consensus in Venezuela, where polls consistently show super majorities oppose outside intervention. Popular opinion in Venezuela supports negotiations between the government and the opposition as proposed by Mexico, Uruguay, and the Vatican. The Maduro administration has embraced the negotiations as a peaceful solution to the crisis facing Venezuela.

The US government rejects a negotiated solution, in the words of Vice President Pence: “This is no time for dialogue; this is time for action.” This intransigent position is faithfully echoed by Guaidó. So while most Venezuelans want peace, the self-appointed president, backed by the full force of US military power, wrote in a New York Times op-ed that it was possible to “end the Maduro regime with a minimum of bloodshed.”

The Guaidó/Trump cabal’s fig leaf for legitimacy is based on the bogus argument that Article 233 of the Venezuelan constitution gives the National Assembly the power to declare a national president’s “abandonment” of the office. In which case, the president of the National Assembly can serve as an interim national president, until presidential elections are held. The inconvenient truth is that Maduro has shown no inclination to abandon his post, and the constitution says no such thing.

In fact, the grounds for replacing a president are very clearly laid out in the first paragraph of Article 233 of the Venezuelan constitution and do not include fraudulent or illegitimate election, which is what the cabal has been claiming. In the convoluted logic of the US government and its epigones, if the people elect someone the cabal doesn’t like, the election is by definition fraudulent and the democratically elected winner is ipso facto a dictator.

The function of adjudicating the validity of an election, as in any country, is to be dealt with through court challenges, not by turning to Donald Trump for his approval. And certainly not by anointing an individual from a party that could have run in the 2018 election but decided to boycott.

The Supreme Tribunal of Justice (TSJ), which is the separate supreme court branch of the Venezuelan government has certified Maduro’s reelection, as have independent international observers. Further, no appeal was filed by any of the boycotting parties, while all participating parties – including opposition ones – signed off on the validity of the election after the polls closed.

The far-right opposition has boycotted the high court as well as the electoral process. They contest the legitimacy of the TSJ because some members of the TSJ were appointed by a lame duck National Assembly favorable to Maduro, after a new National Assembly with a majority in opposition had been elected in December 2015 but not yet seated.

Even if President Maduro were somehow deemed to have experienced what is termed a falta absoluta (i.e., some sort of void in the presidency due to death, insanity, absence, etc.), the National Assembly president is only authorized to take over if the falta absoluta occurs before the lawful president “takes possession.” However, Maduro was already “in possession” before the January 10, 2019 presidential inauguration and even before the May 10, 2018 presidential election. Maduro had won the presidency in the 2013 election and ran and won reelection last May.

If the falta absoluta is deemed to have occurred during the first four years of the presidential term, the vice president takes over. Then the constitution decrees that a snap election for the presidency must be held within 30 days. This is what happened when President Hugo Chávez died while in office in 2013. Then Vice President Nicolás Maduro succeeded to the presidency, called for new elections, and was elected by the people of Venezuela.

If it is deemed that the falta absoluta occurred during the last two years of the six-year presidential term, the vice president serves until the end of the term, according to the Venezuelan constitution. And if the time of the alleged falta absoluta is unclear – when Maduro presided over “illegitimate” elections in 2018, as is claimed by the far-right opposition – it is up to the TSJ to decide, not the head of the National Assembly or even such an august authority as US Senator Marco Rubio. Or the craven US press (too numerous to cite), which without bothering to read the plain language of the Bolivarian Constitution, repeatedly refers to Guaidó as the “constitutionally authorized” or “legitimate” president.

As Alfred de Zayas, United Nations independent expert on the promotion of a democratic and equitable international order, tweeted: “Article 233 of the Venezuelan constitution is inapplicable and cannot be twisted into legitimizing Guaidó’s self-proclamation as interim President. A coup is a coup.”

The State of the Union: These Are Dangerous Times, and the Government Is To Blame

As I look at America today, I am not afraid to say that I am afraid.

— Bertram Gross, Friendly Fascism: The New Face of Power in America

These are dangerous times.

Mind you, when I say that these are dangerous times, it is not because of violent crime, which remains at an all-time low, or because of terrorism, which is statistically rare, or because our borders are being invaded by armies, which data reports from the Department of Homeland Security refute.

No, the real danger that we face comes from none other than the U.S. government and the powers it has granted to its standing army to rob, steal, cheat, harass, detain, brutalize, terrorize, torture and kill.

The danger “we the people” face comes from masked invaders on the government payroll who crash through our doors in the dark of night, shoot our dogs, and terrorize our families.

This danger comes from militarized henchmen on the government payroll who demand absolute obedience, instill abject fear, and shoot first and ask questions later.

This danger comes from power-hungry bureaucrats on the government payroll who have little to no understanding of their constitutional limits.

This danger comes from greedy politicians and corporations for whom profit trumps principle.

You want to know about the state of our union? It’s downright scary.

Consider for yourself.

Americans have no protection against police abuse. It is no longer unusual to hear about incidents in which police shoot unarmed individuals first and ask questions later, such as the 16-year-old teenager who skipped school only to be shot by police after they mistook him for a fleeing burglar. Then there was the unarmed black man in Texas “who was pursued and shot in the back of the neck by Austin Police… after failing to properly identify himself and leaving the scene of an unrelated incident.” And who could forget the 19-year-old Seattle woman who was accidentally shot in the leg by police after she refused to show her hands? What is increasingly common, however, is the news that the officers involved in these incidents get off with little more than a slap on the hands.

Americans are little more than pocketbooks to fund the police state. If there is any absolute maxim by which the federal government seems to operate, it is that the American taxpayer always gets ripped off. This is true, whether you’re talking about taxpayers being forced to fund high-priced weaponry that will be used against us, endless wars that do little for our safety or our freedoms, or bloated government agencies such as the National Security Agency with its secret budgets, covert agendas and clandestine activities. Rubbing salt in the wound, even monetary awards in lawsuits against government officials who are found guilty of wrongdoing are paid by the taxpayer.

Americans are no longer innocent until proven guilty. We once operated under the assumption that you were innocent until proven guilty. Due in large part to rapid advances in technology and a heightened surveillance culture, the burden of proof has been shifted so that the right to be considered innocent until proven guilty has been usurped by a new norm in which all citizens are suspects. This is exemplified by police practices of stopping and frisking people who are merely walking down the street and where there is no evidence of wrongdoing. Likewise, by subjecting Americans to full-body scans and license-plate readers without their knowledge or compliance and then storing the scans for later use, the government—in cahoots with the corporate state—has erected the ultimate suspect society. In such an environment, we are all potentially guilty of some wrongdoing or other.

Americans no longer have a right to self-defense. In the wake of various shootings in recent years, “gun control” has become a resounding theme. Those advocating gun reform see the Second Amendment’s right to bear arms as applying only to government officials. As a result, even Americans who legally own firearms are being treated with suspicion and, in some cases, undue violence. In one case, a Texas man had his home subjected to a no-knock raid and was shot in his bed after police, attempting to deliver a routine search warrant, learned that he was in legal possession of a firearm. In another incident, a Florida man who was licensed to carry a concealed firearm found himself detained for two hours during a routine traffic stop in Maryland while the arresting officer searched his vehicle in vain for the man’s gun, which he had left at home. Incidentally, the Trump Administration has done more to crack down on Second Amendment rights than anything the Obama Administration ever managed.

Americans no longer have a right to private property. If government agents can invade your home, break down your doors, kill your dog, damage your furnishings and terrorize your family, your property is no longer private and secure—it belongs to the government. Likewise, if government officials can fine and arrest you for growing vegetables in your front yard, praying with friends in your living room, installing solar panels on your roof, and raising chickens in your backyard, you’re no longer the owner of your property.

Americans no longer have a say about what their children are exposed to in school. Incredibly, the government continues to insist that parents essentially forfeit their rights when they send their children to a public school. This growing tension over whether young people, especially those in the public schools, are essentially wards of the state, to do with as government officials deem appropriate, in defiance of the children’s constitutional rights and those of their parents, is reflected in the debate over sex education programs that expose young people to all manner of sexual practices and terminology, zero tolerance policies that strip students of any due process rights, let alone parental involvement in school discipline, and Common Core programs that teach students to be test-takers rather than critical thinkers.

Americans are powerless in the face of militarized police. In early America, citizens were considered equals with law enforcement officials. Authorities were rarely permitted to enter one’s home without permission or in a deceitful manner. And it was not uncommon for police officers to be held personally liable for trespass when they wrongfully invaded a citizen’s home. Unlike today, early Americans could resist arrest when a police officer tried to restrain them without proper justification or a warrant—which the police had to allow citizens to read before arresting them. (Daring to dispute a warrant with a police official today who is armed with high-tech military weapons and tasers would be nothing short of suicidal.) As police forces across the country continue to be transformed into outposts of the military, with police agencies acquiring military-grade hardware in droves, Americans are finding their once-peaceful communities transformed into military outposts, complete with tanks, weaponry, and other equipment designed for the battlefield.

Americans no longer have a right to bodily integrity. Court rulings undermining the Fourth Amendment and justifying invasive strip searches have left us powerless against police empowered to forcefully draw our blood, strip search us, and probe us intimately. Accounts are on the rise of individuals—men and women—being subjected to what is essentially government-sanctioned rape by police in the course of “routine” traffic stops. Remember the New Mexico man who was subjected to a 12-hour ordeal of anal probes, X-rays, enemas, and finally a colonoscopy—all because he allegedly rolled through a stop sign?

Americans no longer have a right to the expectation of privacy. Despite the staggering number of revelations about government spying on Americans’ phone calls, Facebook posts, Twitter tweets, Google searches, emails, bookstore and grocery purchases, bank statements, commuter toll records, etc., Congress, the president and the courts have done little to nothing to counteract these abuses. Instead, they seem determined to accustom us to life in this electronic concentration camp.

Americans no longer have a representative government. We have moved beyond the era of representative government and entered a new age, let’s call it the age of authoritarianism. History may show that from this point forward, we will have left behind any semblance of constitutional government and entered into a militaristic state where all citizens are suspects and security trumps freedom. Even with its constantly shifting terrain, this topsy-turvy travesty of law and government has become America’s new normal. It is not overstating matters to say that Congress, which has done its best to keep their unhappy constituents at a distance, may well be the most self-serving, semi-corrupt institution in America.

Americans can no longer rely on the courts to mete out justice. The U.S. Supreme Court was intended to be an institution established to intervene and protect the people against the government and its agents when they overstep their bounds. Yet through their deference to police power, preference for security over freedom, and evisceration of our most basic rights for the sake of order and expediency, the justices of the Supreme Court have become the architects of the American police state in which we now live, while the lower courts have appointed themselves courts of order, concerned primarily with advancing the government’s agenda, no matter how unjust or illegal.

I haven’t even touched on the corporate state, the military industrial complex, SWAT team raids, invasive surveillance technology, zero tolerance policies in the schools, overcriminalization, or privatized prisons, to name just a few, but what I have touched on should be enough to show that the landscape of our freedoms has already changed dramatically from what it once was and will no doubt continue to deteriorate unless Americans can find a way to wrest back control of their government and reclaim their freedoms.

There can be no denying that the world is indeed a dangerous place, but what you won’t hear in any State of the Union address—what the president and his cohorts fail to acknowledge—is that it’s the government that poses the gravest threat to our freedoms and way of life, and no amount of politicking, parsing or pandering will change that.

So what do we do about this dangerous state of our union?

How do we go about reclaiming our freedoms and reining in our runaway government?

Essentially, there are four camps of thought among the citizenry when it comes to holding the government accountable. Which camp you fall into says a lot about your view of government—or, at least, your view of whichever administration happens to be in power at the time.

In the first camp are those who trust the government to do the right thing, despite the government’s repeated failures in this department.

In the second camp are those who not only don’t trust the government but think the government is out to get them.

In the third camp are those who see government neither as an angel nor a devil, but merely as an entity that needs to be controlled, or as Thomas Jefferson phrased it, bound “down from mischief with the chains of the Constitution.”

Then there’s the fourth camp, comprised of individuals who pay little to no attention to the workings of government. Easily entertained, easily distracted, easily led, these are the ones who make the government’s job far easier than it should be.

It is easy to be diverted, distracted and amused by the antics of politicians, the pomp and circumstance of awards shows, athletic events, and entertainment news, and the feel-good evangelism that passes for religion today.

What is far more difficult to face up to is the reality of life in America, where unemployment, poverty, inequality, injustice and violence by government agents are increasingly norms.

As I make clear in my book Battlefield America: The War on the American People, the powers-that-be want us to remain divided, alienated from each other based on our politics, our bank accounts, our religion, our race and our value systems. Yet as George Orwell observed, “The real division is not between conservatives and revolutionaries but between authoritarians and libertarians.”

Court Uses Law’s Absurdity to Allow Unfit Kavanaugh to Remain as Justice

The allegations contained in the complaints [against Judge Kavanaugh] are serious, but the Judicial Council is obligated to adhere to the Act. Lacking statutory authority to do anything more, the complaints must be dismissed because an intervening event – Justice Kavanaugh’s confirmation to the Supreme Court – has made the complaints no longer appropriate for consideration under the Act…. Because it lacks jurisdiction to do so, the Council makes no findings on the merits of the complaints.

— Order of the Judicial Council of the US Tenth Circuit, December 18, 2018

That is the sound that eight federal judges make when they know full well they’re doing something rotten but can’t bring themselves to defend the integrity of their own judicial system.

This order deals with complaints against federal judge Brett Kavanaugh, whose reputation for perjurious testimony is documented at least as far back as 2004. Last summer, the US Senate gave only cursory attention to whether Kavanaugh had repeatedly lied under oath on a variety of occasions, including the Senate judiciary committee hearings of 2018. Kavanaugh was a federal district judge from May 30, 2006, until October 6, 2018, when he was sworn in as a Supreme Court justice. At that time, the majority of 83 ethical conduct complaints addressing his behavior as a district judge had already been filed. In an unusual procedure, the Tenth Circuit Judicial Council has made these 83 complaints public on its website, while concealing the identities of the complainants.

The first batch of Kavanaugh complaints went to the DC Circuit, which passed them to Supreme Court Chief Justice John Roberts, who passed them on to the Tenth Circuit on October 10. At that time I wrote in Reader Supported News that the credibility of the US judicial system was the core issue in the Kavanaugh case:

The stakes are as high as they are simple: Will our court system choose to defend the position one of its own members or will it choose to defend the integrity of the US judicial system? There is no possibility it can do both with any credibility.

This is still true, as the Kavanaugh complaints appear headed back to the Chief Justice’s lap for further action, or inaction.

It took the eight judges of the Tenth Circuit Judicial Council just over two months to decide to do nothing about any of the 83 misconduct complaints against Judge Kavanaugh. Worse, the court’s order asserted in a strained legal argument that there was nothing that could be done legally about the 83 misconduct complaints against Judge Kavanaugh for one reason, and one reason only – because he had become Justice Kavanaugh. That’s the whole argument: that Kavanaugh gets to escape judicial accountability, and his getaway car is his seat on the Supreme Court. This is cultural madness and legal absurdity. What were those Tenth Circuit judges thinking?

What they actually do is create a legal fiction, starting with a false assertion in the first sentence: “Complaints of judicial misconduct have been filed against Supreme Court Justice Brett M. Kavanaugh….” In fact, most of the complaints were filed against Kavanaugh when he was a district judge. All the complaints cite judicial misconduct by Kavanaugh as a district judge. The false statement of reality is necessary to support the wonderland the judges need to escape dealing with what the court saw as the substance of the charges:

… that Justice [sic] Kavanaugh made false statements during his nomination proceedings to the D.C. Circuit in 2004 and 2006 and to the Supreme Court in 2018; made inappropriate partisan statements that demonstrate bias and a lack of judicial temperament; and treated members of the Senate Judiciary Committee with disrespect.

Much of this is beyond reasonable dispute. Both professional and lay witnesses abound. More than 2,400 law professors are on record opposing Kavanaugh as unfit to serve on the Supreme Court. Even Kavanaugh has acknowledged and quasi-apologized for some of the behavior in the 83 complaints. The Tenth Circuit judges acknowledge that the complaints are “serious” but then choose to make “no findings on the merits of the complaints.” How is this not deliberate judicial malpractice?

The answer to that is a legal quibble. According to the Tenth Circuit judges, the applicable statute for federal district judges is not applicable to Supreme Court justices. This is certainly true in the sense that if the complaints made against Kavanaugh referred to his behavior as a justice, the statute would not apply. The statute is the Judicial Conduct and Disability Act, 28 USC 351 et seq., which applies specifically to federal circuit judges, district judges, bankruptcy judges, and magistrate judges. It is one of the abiding scandals of American government that the Supreme Court is subject to no rules of ethics of its own and that Congress has done little to remedy the ridiculous result: that those with the most authority are held the least accountable. Or as the Tenth Circuit judges put it:

… the complaints must be dismissed because, due to his elevation to the Supreme Court, Justice Kavanaugh is no longer a judge covered by the Act. See 28 USC 352(b)(1)(A)(i). [emphasis added]

The court thereby creates a reality in which:

(1)  Over a period of 13 years as a judge, Kavanaugh committed objectionable acts;

(2)  Complaints were lawfully filed in response to his objectionable acts;

(3)  Some complaints were based on objectionable acts Kavanaugh committed before he was a circuit judge and subject to the Act, but these complaints were not dismissed;

(4)  Despite unambiguous jurisdiction at the time of the acts and unambiguous jurisdiction at the time of the filing of the complaints, the Tenth Circuit claims it’s helpless to act.

The Tenth Circuit does not explain, or even address, this absurdity. The court’s order argues that “The Act thus applies only to complaints that allege that one of those covered judges [which Kavanaugh was] ‘has engaged in conduct prejudicial to the effective and expeditious administration of the courts’ “ [which Kavanaugh patently did as a circuit judge]. The court holds that whatever Kavanaugh did as a judge that was complained about while he was still a judge can all be ignored because of an “intervening event,” such as a judge’s death. Kavanaugh did not die, although he kind of went to heaven. The court cites Rule 11(e) to justify its abdication of anything like the rule of law. Rule 11(e) in its entirety says:

Intervening Events. The chief judge may conclude the complaint proceeding in whole or in part upon determining that intervening events render some or all of the allegations moot or make remedial action impossible.

Kavanaugh’s elevation to the high court did not make any of the complaints moot. If anything, his elevation made them more pertinent than ever. Kavanaugh’s elevation to the high court hardly made remedial action impossible, although it probably makes remedial action more difficult. The court’s order cites four precedents for its action, three of which are irrelevant (involving judges who were transferredretired, or whose objectionable behavior was before becoming a judge). The one relevant citation involves several judges for whom the dismissed complaint is ruled “frivolous” as well as Supreme Court Justice Clarence Thomas, who is dismissed “for want of jurisdiction” as a sitting justice. The relevance here is about as slim as it gets, comparing one “frivolous” complaint to Justice Kavanaugh’s 83 complaints acknowledged by the court to be “serious.”

As described by the court’s order, the judicial council held no hearings, examined no evidence for its probative value, or otherwise investigated any of the 83 complaints against Kavanaugh. The court dismissed those complaints solely on the tenuous jurisdictional basis that they were out of the court’s reach. The court chose not to discuss any other possibly more judicious responses to the prickly Kavanaugh case, leaving the country still saddled with a justice palpably unfit for his office.

The court defended its conclusion by noting that Congress, in other instances, had indeed included justices under its statutes and offered as an example 28 US Code 455 – “Disqualification of justice, judge, or magistrate judge.” This statute is likely to become increasingly important as long as Kavanaugh remains on the bench, since it mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Kavanaugh’s televised performance of personal bias against Democrats and his stated conspiracy beliefs should be enough to disqualify him from a wide range of political cases. With 83 serious conduct complaints to be examined, it might take less time to assess what cases there are where Kavanaugh could reasonably avoid disqualification.

Nor is the impeachment of Justice Kavanaugh off the table. That’s a distant outcome under present circumstances, but as the court’s order notes in its penultimate paragraph:

The importance of ensuring that governing bodies with clear jurisdictions are aware of the complaints should also be acknowledged. See Nat’l Comm’n on Judicial Discipline and Removal, “Report of the Nat’l Comm’n on Judicial Discipline & Removal,” 152 F.R.D. 265, 342-43 (1994). Accordingly we request that the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States forward a copy of this Order to any relevant Congressional committees for their information. [emphasis added]

For now, the Republican judicial atrocity represented by Justice Kavanaugh sits undisturbed. The Tenth Circuit’s order is subject to appeal until January 29, 2019. As of January 9, a Tenth Circuit court spokesperson declined to say if any appeal had yet been filed, citing appellant confidentiality. One of the self-identified complainants, retired attorney Larry Behrendt, filed his five-page complaint October 2, concluding:

Judge Kavanaugh made repeated, inappropriate partisan statements to the Senate Judiciary Committee during his testimony on September 28, and is thus guilty of misconduct under the Act [28 USC 351ff] and the Rules. This misconduct is particularly egregious, as it took place in front of millions of people, at a time when scrutiny of the law and the judiciary is at its highest, and where Kavanaugh had a clear duty to display judicial temperament and deportment.

After the Tenth Circuit Judicial Council skirted any serious consideration of Behrendt’s complaint or the 82 others, the attorney published an op-ed explaining why he thought the court was wrong. He noted that the law is silent on how to handle a nexus of offenses under transitional circumstances like Kavanaugh’s. That hardly makes it likely that the intent of Congress was to give a lying partisan a free pass to the Supreme Court. Behrendt says he hasn’t decided whether to appeal the Tenth Circuit order. Maybe the Tenth Circuit will find some backbone. Maybe the chief justice will care more about his court’s integrity than the slippery hack who is its newest member. Until someone finds the courage to confront the truth of this legal fiasco the rest of us are stuck with a lifetime travesty of justice.