A Constitutional Law essay for common people; recalling my days as adjunct professor at Johannes Gutenberg University law school, teaching USA constitutional law (for English credit) summer semester, 2008 (I’ve also been published in international law, the Mueller-Wilson Report, not bad for a layman.) IQ required to read and understand this essay: Average around 100.

On 29 November 2017, the number was fifty two thousand, nine hundred twenty seven. The message accompanying the number was “we’ll break through 53,000 in a few days, I assure you.” We will come back to this.

Now, about that 1st paragraph in the USA’s so-called “Bill of Rights”

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Every one of these preceding stipulations is routinely trashed; by people who put on a cloak called color of law, when they swear an oath to uphold the constitution and promptly set out to violate that very oath. It would require a book the size of the greater Los Angeles telephone directory to get through a comprehensive documentation of just how widespread and pervasive this has become, across the institutions of the USA. So, we’ll condense the lesson.

Let’s take the last 1st Amendment clause, this one is key to understanding the crux of the problem:

Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances

Well, they did, with the complicity of the judicial and executive branches, when the United States assumed and asserted a doctrine of Sovereign Immunity from suit. In the simplest words, in the USA supposedly The People are the sovereign, not your congressman, senator, or the president, and the courts should uphold that. But instead of meaning something concrete, like a right  to force compliance with the constitution via lawsuit, Sovereign Immunity has seen this right reduced to a right to whine, per wikipedia:

The Petition Clause protects the right to petition all branches and agencies of government for action

Excuse me, but what’s been left out of Wikipedia’s explanation is “redress” is a synonym for justice. Whining to your congressman the courts are denying fundamental rights isn’t going to cut it when it comes to complying with the  constitution, because they’re all in bed together undercutting the foundational law and here’s a premium example … the Senate confirms the president’s appointment of John Roberts to become Chief Justice. The Chief Justice appoints the judges of the secret FISA court, and this following 4th Amendment language is flushed down the public commode:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

And this 5th Amendment language:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

And this 6th Amendment language:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

All of these rights have been flushed by Congress, with passing the FISA laws, like a junkie with the police at his door, disposing of his heroin, and not a single justice of the Supreme Court of the United States stands up and says Hey! What about our oath to uphold the Constitution?

That’s precisely what ‘color of law‘ is, it is the government, in this case the courts, saying the constitution doesn’t mean what it says because Congress says it means something else, and we’re the ones [the courts] who will [wrongly] uphold this law. In other words, the foundational law (constitution) says justice is white, but we can [wrongfully] color it red. Clearly there is a problem with the president appointing, and the senate approving, rank political animals to the federal courts, whose oath to uphold the constitution is patently meaningless:

Because of FISA provisions brought on by the Patriot Act, the … administration can … invoke “sovereign immunity” which would … allow it to nullify legal challenges brought on by Americans who were spied on. US district judge Jeffrey White specifically notes in the opinion that the government hasn’t waived its right to do so [invoke sovereign immunity] with FISA, stating that “the potential risk to national security may still be too great to pursue confirmation of the existence or facts relating to the scope of the alleged governmental program.” The US government normally has this kind of legal protection unless it is either waived or special laws apply.

‘Waived or special laws apply’ appears to mean if you have a lot of money and hire precisely the right law dog, one who is trained to jump through the very specific hoops of the Federal Fictitious Claims Tort Act, ok, then you might get lucky and slip past sovereign immunity (but probably never in a FISA case.)

Now, to the 11th Amendment and the associated, suspect, idea the USA has rightfully reasserted the doctrine of Sovereign Immunity:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State

What had happened here, is a contractor from South Carolina was owed a war debt by the State of Georgia, which didn’t want to pay up. The Supreme Court had ruled there was no such thing as a state sovereign immunity, in the case of Chisholm v Georgia

Nearly all of the states freaked out at the prospect of having to pay up on their war debts and the 11th Amendment was passed, posthaste. And just like that, two immediate and a third, remarkable things happened;

1) Although the 11th Amendment is specific and narrow, and doesn’t so much as mention Sovereign Immunity, the legendary English Common Law expert William Blackstone’s Sovereign Immunity doctrine is reinstated in the former colonies: “The King moreover is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing: in him is no folly or weakness.” Only now, suddenly it is no longer the ‘King’ can act with impunity, but the institutions of government in the newly formed United States.

2) With the passing of the 11th Amendment by the several states legislators, all of the lawsuits pending in federal court per state war debts had been erased, and half the language of Article One, Section Nine, of the Constitution had been tossed into the ash bin: “No Bill of Attainder or ex post facto Law shall be passed.” Thomas Jefferson indicated this language had been meant to cover both criminal and civil circumstance of law, and the constitutional language supports this assertion by Jefferson; ‘Bill of Attainder’ should refer to criminal, and ‘ex post facto’ should refer to civil liabilities. In other words, the USA should not have been allowed to make law, criminalizing or creating liability, or excusing crime and liability, after the fact, to get the outcome it wants. The 11th Amendment neither mentions nor lifts this other constitutional provision. But now, civil ex post facto law happens frequently, such as Congress ‘forgiving’ the telecom companies illegally spying on Americans, erasing liability and robbing citizens of their day in court.

3) The third thing to happen was, as late as 1991, in Blatchford v. Native Village of Noatak, the Supreme Court wrote:

“we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal feudal system with their sovereignty intact, that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the “plan of the convention” [my correction of SCOTUS language in bold]

And there you have it, from the early days of the Supreme Court saying Sovereign Immunity is a non existent thing in immediate post colonial USA law, to the several states’ legislatures passing the 11th Amendment which doesn’t so much as mention Sovereign Immunity, to escape war debt, to the modern Supreme Court stating the language of our constitution’s 11th Amendment doesn’t mean what it actually says, but instead means what they want it to say, essentially stating ‘we’ll extend ‘the King’s prerogative‘ as far as we please, and we’ll use the 11th Amendment to absurdly assert what amounts to a claim the King’s Sovereign Immunity was never a point of the American Revolution.’

Here’s the simple math: From King George III was our ‘sovereign’ entitled to immunity (amounting to impunity), to ‘the people’ are sovereign, to politicians claiming they hold the people’s sovereignty (amounting to impunity), to judges appointed by those very politicians upholding this political theft of our freedoms, to the oath to uphold our constitution becoming patently meaningless, even especially when before the courts.

Recalling:

On 29 November 2017, the number was fifty two thousand, nine hundred twenty seven. The message accompanying the number was “we’ll break through 53,000 in a few days, I assure you.”

Relevant to the preceding, there are two mentions of religion in the USA’s constitution:

Article Six, Section 3 states “no religious test shall ever be required as a qualification to any office or public trust under the United States”

And the 1st Amendment’s ‘no establishment’ clause enumerates “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

Over the past 12 years or so, complaints these clauses have been violated, on average, are reported 12 times everyday; concerning a single United States institution. That institution is the Department of Defense.

As of today’s composition, 53,000 or so complaints of violations by our military leaders of  their oath to uphold the constitution.

From Saint Augustine’s ‘Just War’ theology taught to nuclear launch officers, to Bible verses engraved on military issue sniper scopes, to persistent, repeated, mandatory prayer attendance, the United States Department of Defense has both; established a religion, that is fundamentalist Christianity, and made a religious test of compliance throughout command structures. 53,000 complaints in 12 years, over 90% from non-fundamentalist Christian members of the military, have established there IS a fundamentalist Christian religious requirement in the American military.

53,000 complaints, 12 years of forcing the military into administrative procedures to correct having ‘the gospel of Jesus Christ’ [fundamentalist version] shoved down the rank and file throats, all brought to the attention of the command structures in the United States military, there is no courts martial, no administrative punishments and the Pentagon takes no action. This is a fundamentalist Christian culture of anti-constitutional impunity.

Now, where this gets really interesting is, we have generals who were/are on duty, at the highest levels of the American military structures, when this should have been cleaned up, it was not cleaned up, and is not being cleaned up, surrounding Trump. One of them, General Mattis, is the boss of the Department of Defense. Another, Lieutenant General McMaster, is Trump’s National Security Advisor. The ‘retired’ General Kelly is Trump’s Chief of Staff [Trump’s baby sitter, the generals appear to own Trump] and it’s General Kelly is behind the latest administration change: the proposed pushing Rex Tillerson out as Secretary of State and bringing the rabid Christian fundamentalist, Mike Pompeo, from CIA to replace Tillerson. Pompeo’s replacement to be, at CIA? A military crusader turned politician, Tom Cotton, his trajectory being from the Arkansas family farm, to Harvard Law, to deployments in Iraq and Afghanistan, to one term congressman, to freshman senator, to CIA. His only qualifications for the job appear to be an Iran animus and militant Christian fundamentalism.

Does anyone see where this is all pointed?

“we make sure that we pray and stand and fight and make sure that we know that Jesus Christ is our savior is truly the only solution for our world” -Mike Pompeo

One more thing. Trump has handed off his Commander-in-Chief responsibilities to General Mattis. With the General’s known Iran animus and pushing war game after war game in North Korea’s face, is this the guy will end it all?

“I come in peace. I didn’t bring artillery. But I’m pleading with you, with tears in my eyes: If you fuck with me, I’ll kill you all” -General Mattis

Number one, that’s not a language of diplomacy. It’s a pretense, very thinly concealing ‘it’s my way or I’ll blow you away’ and that’s not how you do business with the Ayatollahs or Kim Jong Un, not to mention China or Russia. But maybe that’s besides the point. The guy that refuses to clean up the crusading in the American military probably could care less if the rest of us all die. After-all, what’s actually important to Mattis is, that he is a good general for Jesus, at the battle of Armageddon, upholding our constitution be damned:

“You’re telling me 28 to 34 percent of our military want 7 billion people to die” [believe in literal Armageddon] … “The simple answer is affirmative”

*

5 December 20017 update: portion of a mail sent to the Military Religious Freedom Foundation on 4 December, typical of multiple communications sent everyday:

I had finished reading your book, “With God on Our Side” on the airplane about 2 hours before we touched down at Ft Campbell on our redeployment from an extended tour in Iraq. It was dark, cold, and rainy when we walked down the jet’s stairs to shake hands with a 1- or 2- star general. We then dropped our gear, and got into a mandatory formation to head into the hangar where all the families were. Still in formation, we were “treated” to a completely mandatory Christian talk (? sermon) by the Division Chaplain. All this just a few hours after reading in your book how this shouldn’t be happening in our military. I was pretty upset about it, but was stuck in formation and couldn’t go anywhere.

I started supporting MRFF shortly after that.

Thanks again for what you and MRFF do. No other organization can or will do what MRFF does to fight this type of bigotry in the military ranks. It’s uncomfortable to put up with (at best) and difficult or impossible to fight it from within the chain of command

U.S. Army officer’s identity withheld for reasons of retaliation by commanders is common –