The Time to Assert Checks and Balances is Now

As Churchill said, if it is not the beginning of the end, it will be the end of the beginning. But if this proposal—or something equally daring—is not put into practice, the end of America will soon be upon us all. Take your choice.

Checks and Balances
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Last Updated on October 6, 2021 by Constitutional Militia

From every sector of America’s political spectrum that contains people still capable of thinking rationally arise denunciations of the recently enacted Military Commissions Act. Beyond any doubt, major portions of that statute are blatantly unconstitutional. Beyond any doubt, through those portions of the statute the individuals now controlling Congress and the Executive Branch have in effect declared war on constitutional government in this country. But the question remains: NOW WHAT?!

Exactly what are the American people going to do—what can they do—to reverse this latest outrage?

America’s federal system is a government of checks and balances. If Congress and the Executive Branch are temporarily in the clutches of the Forces of Darkness, there remain the Supreme Court, the States, We the People as the Electorate, and We the People as “the Militia of the several States”.

We the People cannot turn to “the Militia of the several States”, because the Militia remain unorganized. My first book-length treatment of that problem is now close to publication. But, even if it were already in general circulation—and received with more than the yawns of disinterest that follow most calls for fundamental reform in this country—a long time would pass before its recommendations could be put into practice through statutes enacted in enough of the States.

We the People as the Electorate could (and should) remove from Congress every Representative and Senator, running in this November’s elections, who voted for the Military Commissions Act—and then hope that the reconstructed Congress would immediately repeal that offensive legislation, and override the President’s veto of the repeal. This strategy depends for its success, however, on two contingencies: (i) that the candidates challenging the incumbents will follow that course of action if elected, rather than proving to be nothing more than a new set of Pinocchios for the Forces of Darkness; and (ii) that the elections themselves will be honest. If, as many Americans fear, elections are routinely rigged throughout this country, relying on them to change the substance of Congress, rather than just the faces of the marionettes composing it, is useless.

That leaves the States and the Supreme Court. Linkage of the two is not accidental, but compelled by the terms of the Military Commissions Act. Congress and the Executive Branch have attempted to preclude the Judiciary from reviewing the statute, by denying the federal courts jurisdiction over the subject matter—that is, stripping them of the authority to hear cases or controversies challenging the (il)legality of the statute.

Arguably, Congress does have the power, in general, to control the jurisdiction of what the Constitution calls the “inferior Courts [which] the Congress may from time to time ordain and establish” (Article III, Section 1). Whether these “inferior Courts”, and the Supreme Court in its turn, will agree that Congress has the power to excise from the “federal question” jurisdiction that now exists a special class of cases and controversies, for the sole purpose of preventing the courts from declaring the Military Commissions Act unconstitutional—that is, for the sole purpose of preventing violations of the Constitution from being set aside—remains to be seen.

Moreover, although the Constitution allows Congress to control the jurisdiction of the “inferior Courts” that it “ordain[s] and establish[es]”, that power does not extend to State courts, which the States, not Congress, create. And State courts certainly enjoy sufficient jurisdiction to investigate the unconstitutionality of actions taken under color of the Military Commissions Act within the boundaries of their own States.

Cases and controversies working their tortuous ways from the bottom up, trial by trial and appeal by appeal, through the “inferior [federal] Courts” or the State courts will take years to complete, however. During which time, serious—perhaps fatal—harm will be done to this country.

America needs immediate action. And the Constitution offers the means. The Constitution provides that “[t]he judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States”, and “to Controversies * * * between a State and Citizens of another State” (Article III, Section 2, Clause 1). It also provides that “[i]n all Cases * * * in which a State shall be a Party, the Supreme Court shall have original Jurisdiction” (Article III, Section 2, Clause 2). So, if a State were to sue those officials of the General Government (civil and military) who administer the Military Commissions Act, and are not citizens of that State, the case would have to be heard by the Supreme Court itself in its “original Jurisdiction”—that is, the jurisdiction the Constitution confers directly, and therefore which no statute of Congress can withhold or remove.

Indeed, if several States each filed separate suits against officials who were not their citizens, and all of these suits were consolidated (if only for reason of the Court’s convenience), the unconstitutionality of essentially the whole of the Military Commissions Act in its every application could be heard at one sitting.

The States certainly have “standing” to bring such suits. The Constitution removes certain powers from the States and transfers them to the General Government, on the understanding that those powers will be exercised strictly according to the delegations and limitations the Constitution sets. Senators, Representatives, and other officials of the General Government “shall be bound by Oath or Affirmation, to support this Constitution” (Article VI, Clause 3). And the President takes the more extensive “Oath or Affirmation * * * to the best of my Ability, [to] preserve, protect and defend the Constitution of the United States” (Article II, Section 1, Clause 7). If officials of the General Government violate the Constitution—thereby forswearing their “Oath[s] or Affirmation[s]” of office—the States suffer injury, by having more power taken from them in fact than the Constitution allows in law. Indeed, unless the “Oath[s] or Affirmation[s]” that the Constitution requires are just meaningless hot air, there must exist a judicial means for their enforcement. And inasmuch as the States are the primary beneficiaries of those “Oath[s] or Affirmation[s]” when they are honored, and the primary victims when they are dishonored, the States must have access to that judicial means.

So now it is time to fish or cut bait. One State legislature needs to pass, and one State governor needs to sign, a statute appointing a special attorney general to prosecute such a suit. Tomorrow, if not sooner.

I should suggest that this special attorney general really be a SPECIAL attorney general, with no ties whatsoever to the political and legal Establishment; that he be invested with plenary power to litigate the case as he alone determines proper; and that he be supplied with sufficient funds to assemble a “dream team” of constitutional scholars and litigators, and necessary para-legal personnel, for that purpose. The future of America as a free and independent nation being at stake, no effort or expenditure can be too great.

Some people will complain that this proposal is naïve, because the State governments are no less corrupt than the General Government. If that were true across the country, then all hope for We the People’s self-government would be gone. And one must never lose hope. DVM SPIRO SPERO. With fifty different State governments, the claim that not a single one of them can be put to a constitutional purpose, in the hour of this country’s greatest need, must be rejected as the counsel of defeatism and despair, the spawn of agents provocateurs, not the sense of American patriots.

Other people will argue that the Supreme Court cannot be trusted to do the right thing. Perhaps that is true. But, then again, perhaps not. No one can know, until the effort is made. Even a broken clock is right twice a day—and America’s time may just be at hand

In any event, America has next to no choice. And a case brought by even one State in the Court’s original jurisdiction, whatever its eventual outcome, will immediately seize the whole country’s attention—separate the sheep from the goats—and galvanize patriotic Americans into taking other actions as well, particularly if the Court refuses to do its duty.

As Churchill said, if it is not the beginning of the end, it will be the end of the beginning. But if this proposal—or something equally daring—is not put into practice, the end of America will soon be upon us all. Take your choice.

©2006 Edwin Vieira, Jr. – All Rights Reserved.