AnonyÓðinn · @AnonyOdinn
8th Sep 2014 from TwitLonger
Did the US Supreme Court "hack the law" to render US law itself invalid?
This is a question which should be asked by those who rely upon the law, or demand (through appeals to authority) that someone ~ a "representative" or other individual in a "position of authority" ~ 'do something.' But before presenting a possible answer to the question of whether the US Supreme Court "hacked the law" in such a manner as to render US law itself invalid, some context must be offered. In the sections that follow, a brief background is presented on appeals to law and authority, fascism, the beginning and end of nation-states, and present-day notions of governance (which are generally characterized as a result of modern inclinations and notions which lean or rely upon Hegelian romantic nationalism). This post then concludes with statements which conclude that the US Supreme Court has "hacked the law" in a manner that largely renders law irrelevant in the USA, and presents certain examples of how the results of this process, coupled with rapidly changing technologies, may present an alternative to many governmental forms now in existence.
I. Appeals to law and authority
Appeals to law and to those charged with altering or implementing it by people who have no real power at all over what happens with laws are not new. Arguably, the increasing number of (and seemingly endless quantity of) appeals to "authority" based upon a notion that perhaps, some person charged with revision of implementation of laws, might one day change your (or society's) circumstances for the better, have generally contributed to the development of a pervasive fascism in the United States of America that has crept into all aspects of 'civil society.' For the purposes of this post, fascism is defined as follows:
II. Fascism
"Fascism (pron.: /ˈfæʃɪzəm/) is a form of radical authoritarian nationalism that came to prominence in mid-20th century Europe. Fascists seek to unify their nation through a totalitarian state that promotes the mass mobilization of the national community, relying on a vanguard party to initiate a revolution to organize the nation on fascist principles. Hostile to democracy, liberalism, socialism, and communism, fascist movements share certain common features, including the veneration of the state, a devotion to a strong leader, and an emphasis on ultranationalism, ethnocentrism, and militarism. Fascism views political violence, war, and imperialism as a means to achieve national rejuvenation and asserts that "superior" nations and races should attain living space by displacing weak and inferior ones."
https://en.wikipedia.org/wiki/Fascism
III. The beginning and end of nation-states
Anyone within the United States of America who has ever come to has come to understand in various ways the manifold opportunities and oppressions that characterize life here, will likely upon reflection seek a preservation of Constitutional rights which, long having been fought for, argued about incessantly, and which have been utilized to the benefit of many and the detriment of others. Yet in this "governmental" framework, as we understand it today, and which was developed in antiquity, will not exist forever in its present form. Certain things come into being, and other things end, much as they do in natural systems. The decline of the former Yugoslavia gave rise to what are now at least five distinct countries. East Timor occurred as a result of its declaration of independence from Portugal and Indonesia. Micronesia and the Marshall Islands both became independent from the United States in September 1991, which was after the beginning of the formal dismantling of the Berlin Wall and prior to the complete dissolution of the USSR. The Egyptian Revolution of 2011 has not led to any meaningful change, and largely has replaced one form of useless, oppressive government with another, causing great suffering as a result ~ echoing the dismal results of previous events such as The Burning of Cairo and the Bread Riots, which never resulted in serious or well-organized attempts to remove the oppressive form of the nation-state itself, even while inspiring others in various other nations to follow with their own style of revolt. At the same time, the number of micronations, such as Sealand and Wirtland, have grown. Thus, in this larger context, if the number of "governments" that claim power over people have grown, and given the predisposition of many across the world to pursue nationalistic endeavors, how would it be possible to assume that nation-states (which are more accurately referred to in today's world as corporation-states) might actually come to an end?
IV. Present-day notions of governance
The truth of the matter is that all things must eventually end. The modern state, lubricated by 1700s-era orts of Hegelian romantic nationalism, is no exception. Within this context, which has been carried forward from the 1700s to the modern day, the state attempts to assert a political legitimacy based primarily upon the concept of unity of a people within certain fictitious boundaries, which are primarily defended not through reason, but through violence and coercion (imposed upon those inside and outside the modern state's fictitious geographic boundaries). The notion of 'representation,' considered revolutionary and generally new and interesting at the time of the French Revolution, is now antiquated and does not provide an adequate framework for newer social and technological developments that have ensued well past the emergence of French constitutional monarchy and the United States of America in the period of 1776-1789. Indeed, by 1989, just 200 years after the beginning of the French Revolution, it was apparent that the notion of a strong, unified state, controlled by a leader or leaders that everyone would be required to follow, was (with more than a little finality) cast into doubt, and the notion of "citizenship" as something defined by the state was likewise in the early process of being discarded, as communities began to form online with the development of the internet. The notion that current systems of "government" should be preserved and maintained is nothing more than a desperate grasp at living in the past -- a past which we are now removed from by over 200 years!
V. The US Supreme Court's role in "hacking the law"
a. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803)
In this case, the US Supreme Court concluded that "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury," further stating "That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected," and concluding in part that "Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. (...) It is emphatically the province and duty of the Judicial Department to say what the law is." Finally, the Court concluded that "the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."
This case established in part that laws deemed repugnant to a Constitution by a Judicial Department would be void. The notion of a Constitution (including any Constitutional documents asserting rights, developed subsequent to a successful revolution) was deemed to be a determining factor in whether or not a law would be upheld or considered void.
b. South Ottawa v. Perkins, 94 U.S. 260 (1877)
In this case, the US Supreme Court concluded in a precedential decision, that "Not only the courts, but individuals, are bound to know the law, and cannot be received to plead ignorance of it," yet in this same decision, asserted that "this court has always held that the laws of the States are to receive their authoritative construction from the State courts, except where the Federal Constitution and laws are concerned; and the State Constitutions, in like manner, are to be construed as the State courts construe them. This has been so often laid down as the proper rule, and is in itself so obviously correct, that it is unnecessary to refer to the authorities." The US Supreme Court additionally stated as part of the decision in this case: "That which purports to be a law of a State is a law, or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. (...) And whether it be a law, or not a law, is a judicial question, to be settled and determined by the courts and judges."
Thus from this moment forward the highest court in the United States clarified that only the courts (within the context of a "judicial question") could determine _with finality_ as to whether any law passed and 'signed into law' would even rightly be deemed to exist.
c. Christopher Hedges, et al., v. Barack H. Obama, President of the United States, et al.
(https://en.wikipedia.org/wiki/Hedges_v._Obama)
In this case, the US Supreme Court arrived at a conclusion on April 28, 2014 that the rule of law which it had previously asserted control over, should no longer exist. Without due process there can be no law. Fundamental to the notion of a functioning legal framework in the United States was the notion that the Constitution affords due process and, based on case law, that from "judicial questions" would arise determinations as to whether or not any law utilized could be determined to exist (including those that would result in a plaintiff's complaint). Yet in a single sweeping decision (framed as a non-decision), the US Supreme Court turned aside on the attempt of Hedges, et. al., to challenge the constitutionality of indefinite detention without charges or trial. The US Supreme Court's choice to repeatedly (three times) refuse consideration of the Hedges case resulted in allowance of Section 1021 of the NDAA to stand, based on a lower court decision of the United States Court of Appeals for the Second Circuit, which became final. Per Hedges, who reflected prior to the US Supreme Court's decision on the potential results,
"If Section 1021 stands it will mean that more than 150 years of case law in which the Supreme Court repeatedly held the military has no jurisdiction over civilians will be abolished. It will mean citizens who are charged by the government with “substantially supporting” al-Qaida, the Taliban or the nebulous category of “associated forces” will be lawfully subject to extraordinary rendition. It will mean citizens seized by the military will languish in military jails indefinitely, or in the language of Section 1021 until “the end of hostilities”—in an age of permanent war, for the rest of their lives. It will mean, in short, obliteration of our last remaining legal protections, especially now that we have lost the right to privacy, and the ascent of a crude, militarized state that serves the leviathan of corporate totalitarianism. It will mean, as Forrest pointed out in her 112-page opinion, that whole categories of Americans—and here you can assume dissidents and activists—will be subject to seizure by the military and indefinite and secret detention."
Or, in the words of Mayer, one of the lawyers for Hedges,
"As Justice [Robert] Jackson said in his dissent in the Korematsu case, involving the indiscriminate detention of Japanese-American citizens during World War II, once an unconstitutional military power is sanctioned by the courts it ‘lies about like a loaded weapon, ready for the hand of any authority.’"
From Section V.a, above, one can easily infer that a law repugnant to the Constitution could be determined void by the courts. Within Section V.b, it is evident that existence of any law as a final matter would be a judicial question, again turning responsibility for the law to the US Supreme Court. Finally, in Section V.c, it can be seen that the US Supreme Court has declined to preserve due process or the rule of law, abdicating this responsibility to either actions of opportunity by lower courts, or to the people in whatever actions we might pursue independent of the legal system. Eviscerated, the notion of the rule of law in the United States of America has been "hacked" by the US Supreme Court itself - which is, by virtue of the language of a Constitution, the highest court of the land.
VI. Did the US Supreme Court "hack the law" to render US law itself invalid?
Yes. While this was a process which took place over approximately 210 years (from 1803 - 2013), there is no question that it has occurred. In place of the law as it has been understood in the United States of America throughout history, remains the notion of a unitary executive which has authorized itself by memorandum (without seeking consent of people with the United States) to kill citizens without due process of law, and which has obtained the consent of the courts to engage in ongoing implementation of indefinite detention without charges or trial (re. NDAA and the Hedges case). Where one might ordinarily assume that Congress would be an "authority" to which citizens could "appeal," Congress, as the author of indefinite detention provisions, cannot be presumed to be a legal actor, but rather is merely an element of a rogue state without a functional legal framework. Presumably, Constitutional rights are to be honored or defended in a society which has long fought in previously existing legal systems to defend them, but such defense will largely come as a result of any individual's voluntary action within the context of expression of rights, to the extent that they might exist.
It is also notable that (in an opportunistic fashion), the US Defense Department, and the remnants of the US court system (USC), have - since Sept. 11, 2001 - engaged in constant rulemaking in a way that runs counter to any possible public interest. As a few examples, one can consider the US Court's Proposed Amendments to the Federal Rules of Criminal Procedure, which include proposals to engage in illicit installation of malware on computers within the United States and around the world, constituting an attack on legal precedents for online anonymity previously established in the mid-1990s by the same US Supreme Court which has recently abandoned due process and the rule of law (USC-RULES-CR-2014-0004-0001), or one could consider the US Defense Department's finalization of rulemaking on Defense Support of Civilian Law Enforcement Agencies (DOD-2009-OS-0038-0004) - never overturned or even contested, this rule provides direction for how military forces of the United States will occupy streets of the United States without authorization from the President, Congress, or the courts. Or, one could look at the US Defense Department's rule on Defense Industrial Base Voluntary Cyber Security and Information Assurance Activities (DOD-2009-OS-0183-0001), which provides a framework for implementation of widespread spying - including CISPA-like provisions - utilizing whatever corporations are available for the task, all while claiming that this is merely "sharing" of information. Between 2000 and 2013 alone, considering all federal agencies together of the US government, 4,468 "significant" rules were adopted - this includes only rules that are defined by executive order as being over $100 million annually in cost, or of a very novel nature. Additionally, since 1976, federal agencies have issued over 180,000 new regulations, with the number of regulations adopted increasing every year, cumulatively resulting in a nearly exponential rate of increase of the number of adopted regulations.
Thus the entire apparatus of the US government has departed from any meaningful method which could have been construed as remotely consistent with due process and the rule of law generally. (This is not to say that this development isn't evident in other countries ~ it is (Russian Federation and China are a couple other examples that could be analyzed much in the same way). However, this post focuses specifically on the United States.)
VII. Results of this process, and alternatives
The results of this process collectively are manifested, and become visible, as examples of the decline of the nation-state, which is more accurately described as a corporation-state in the modern era. Alternatives to the corporation-state which are reasonable to anticipate in terms of emergence and growth of new social and technological forms include distributed and decentralized systems which involve both novel means of social expression as well as rapidly advancing forms of software (with an increasing number operating autonomously, while others are designed to require constant human input), and the concept of anonymity as a developing idea which is defensible through technological development (even as legal protections for anonymity around the world are declining or disappearing). Primarily, the technological side of these systems will allow formation of new, but ephemeral communities which will emerge, disappear, and re-emerge in different forms, and which will be more active when there are financial (or other transactional) decisions that can be made by many thousands (or millions) of individuals irrespective of the fiction of national boundaries. Ultimately, the confluence of social evolution and technological development will hasten the end of numerous corporation-states, while others will see the extent to which they can control affairs of "their" citizens decline gradually. During and after 2015, the beginnings of an uneasy coexistence will emerge, between corporation-states which struggle to maintain or extend their reach, and the rest of humanity, which not only will outnumber representatives of corporation-states, but which will gradually find themselves technologically empowered to make individual and collective decisions that liberate increasing numbers of people from the grasp of the corporation-state.