Discussions on the Model Constitution (15th in a Series): Judiciary: Competence & Magistracies

Why and How I am a Committed Radical (15th in a Series): Judiciary, Competence and Magistracies
by Frank Wynerth Summers III on Monday, April 23, 2012 at 11:56am ·
This Note will be about the First Section of Article Four in my Model Constitution. For those who want to see the Model Constitution I propose as a whole you can go to the following link:


This is the most complex and possibly the longest body of text from my Model Constitution which has yet been the subject of one of these notes. I am choosing to deal with all of it in such a brief fashion here because this is a long Constitution which takes our Union from a Union with a Constitutional Charter that is the length of a pamphlet to a Constitutional charter that is the length of a real book. The exact length is of course not yet determined. There is no reason to get into a long and detailed argument here about how much this Article and the Judiciary it authorizes would be a constitutional transformation and how much it would be a continuation of this current judiciary of our current Second Union.

I am not a professor of Constitutional Law nor a judge in the Federal or Louisiana State Judiciary. I have grown up talking to may father and uncles about the law, have worked in law offices and for lawyers and was a close associate of my granfather in a variety of capacities over many years. My grandfather was the Chief Justice of the Louisiana Supreme Court at the end of his public carreer as a Louisiana jurist, my grandfather was a Louisiana Supreme Court Justice and a judge for a long time. He was a farmer and cattleman and he was involved in many things which I will not mention here. He died just months before I finished my Master of Arts degree at LSU, but after I had left the halls of Tulane Law School following the first of two unsuccessful attempts to complete studies at the university where so many of my ancestors and relatives have studied.

My second time around at Tulane I mostly interacted only through study, one friendship which has endured and volunteering at the Tulane Public Interest Law Foundation. This is a charity that operates to fund Tulane Law School student and recent graduates doing pro bono work and low-paying work for well-intentioned nonprofits. I worked at the bagels and cofee sales table my second time at Tulane Law School selling these items to students who came in for class a few days a week. Overall, my ex-wife as a spouse and I as a student had very bad experiences at Tulane University Law School. Tulane is the largest private (according to US definitions) university in Louisiana. My great-grandfather and great- great uncle attended Tulane Medical School and graduated there. The future son-in law of this great grandfather was my grandfather and name sake he attended and graduated from Tulane Law School after matriculating at my undergraduate alma mater listed here as University of Louisiana. He made Moot Court honors and later became the Chief Justice of the Louisiana Supreme Court. My father and two of his three younger brothers completed Tulane Law School. I have several cousins with a variety of Tulane degrees. I enrolled at Tulane Law School twice and never graduated. With some exceptions my relationship with the university could be described as more than half-hostile but regretfully so.

That is more than enough about me. For those who wish to see much of my political and legal ideas there is this Facebook Timeline, my blog and also a particular person political correspondence online. That correspondence is unique and certainly offers a lot of unprotected and poorly prepared commentary and discussion on my part often riddled with unflattering typographical errors. That correspondent is Lord Norton. Here this means Philip Lord Norton Baron of Louth. A created Peer and a prominent Conservative he is the author of many books including the British Polity and others that deal with issues of Parliament governance and civil society. He is a professor at Hull University and leads a Parliamentary academic internship program as well as being active in varied fora in Europe and the Commonwealth. He is the blogger on Lords of the Blog with whom I became most involved in dialog and later followed to the newer The Norton View.

The Constitution if ratified will be the law and so it will have to be respected as such. This Constitutional language is perhaps most radically altered from the current judiciary in three ways. First, like everything else it is transformed by the fact of a transition from a purely republican style union to a constitutional union which is Royal Empire of a mixed government type with republican retained elements. Second, the Constitution requires dealing with formal Civilian laws demands in the three Constitutional Jurisdictions formed from the State of Louisiana, the three Constitutional Jurisdictions formed from the Commonwealth of Puerto Rico and in the Direct Imperial Jurisdiction. Thirdly, the Judiciary is required to take legal cognizance of bidies of legal and near legal realities in the las provision listed in the Section discussed in this note.
This includes more infuence for the whole tradition of the Code Duello which is to be included in the Honor Code and admisinstered in the Empire’s bureaucracy by the Imperial Mistress of Ceremonies in her Office of Ritual Confrontation. But Judges are expected to be educated person who put on blinders and not people with mental tunnel vision so they should as a composite know the universal agregation of and any individual example of a code which allows for wounded honor to be met with a public challenge, allows a fixed time for response, allows an appointment of seconds, allows an interview of anounced seconds, allows seconds to contract a physician, allows seconds to certify choice and quality of weapons, provides approved lists, provides a marshal of lists and renunciations and enables the offended parties to have a limited and specified chance to kill each other in fair and equal combat. This is a defense to any charge of homicide. In the model of government proposed in this blog a previously mentioned government agency would monopolize certifying and regulating this activity.
This society does not restore slavery and far less presume Affrican descent to be connected with slavery but it does presume the Judiciary as a whole to be familiar with the significance to the rising Louisian influence of the historical importance of the Code Noir. The Code Noir was the law in colonial Louisiana which was widely unobseveds it forbid male masters from having sex with their female slaves. However, even this was partly effective and even as intended slaves who bore mixed children had a bargaining chip. other provisions were more enforced and effective. The slaves could not be sold apart from spouses nor children from their parents until they were old enough for some independence. The were free to refuse or accept a spouse and were to be instructed and baptized correctly in the Catholic faith. This was sometimes enforced in more religious diversity by extralegal means on masters after the United States law had been introduced.
Obscure cases in the current regime like Roach v. Dresser will be of much greater importance if this constitution is ratifeied in determining the shape of federal legal history. This case is also known more formally as Roach, James, v. Dresser Industrial Valve & Instrument Division was a decision issued by US Federal Judge Edwin F Hunter which recognized the Cajun and Acadian people as having a claim to any protections assured to ethnic minorities in the United States by US law.

In addition, the complex public array of organizations and what we will have to callalleged secret organizations of the Acadian people will be replaced by a restored and reorgnaized working out of the formal and open Imperial Tribe. This would include the largely discontined legal framework with whom the judiciary would have to interact. This centers around the Conseil des Droits. This is a very special part of the Arcadian-Acadian government both in its perpetual evolving constitution and in the current Acadian Secret Government. It is a council composed first of all judges and judicial magistrates who are in any way Acadians byt pure right so that even if under the current regime they do not know of it they are still members. Second, any Roman Catholic or Greek Orthodox Bishop who is an Acadian as well as the chaplains of the Bouletherion, the government and the Maison de Le Roi. Thirdly it is composed of a number of key genealogical officials. Fourthly it is composed of a dozen or more rather unique Acadian-Arcadian officials. While a Basileus who becomes an Emperor must be the Judiciary of Last Resort for the Empire and it must not be outrageously diifficult for him to hear certain special appeals it is extremely rare that an appeal goes beyond this council. It must be endorsed by every branch and two-thirds of the Bouletherion in a Parfait. The Basileus never presides overthis Council. He is President of the Conseil Des Armes and Presides over the Bouletherion when he is present and a Parfait is being held, he presides over the Tout et Rien when it is merged with his House and that can be often. That means that while bound by rules and kept in check in many ways by ancient Teutonic or East Asian standards he really does exert some intermittent political leadership in each of these other branches. But in the Conseil des Droits he is really excluded except as a part of the government and tribe in which it operates and with which it must interact. There are many forms of tyranny besides those of a royal monarch who overreaches but for those who distrust this power the purest guardian of their freedom is the Conseil des Droits. The Conseil has a maximum of five ceremonial guard charters who can enforce some of its orders directly, courier its messages and who are to defend its sites and officers even from the government. On the other hand the other branches also have minor incursions into judical action. This is not exactly the judiciary — it is the Conseil Des Droits. Because this union will not include a truly Acadian State the Conseil would have less power than it would have if that were the case.

So here we get to the text from the model constitution which is our subject today:
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Article Four: Judiciary
Section One: Judicial Competence, Courts and Magistracies
Subsection One: The judicial Power of the United States, shall be vested in one supreme Court, subject only to very limited opportunities for review by the Emperor sitting as the Judiciary of Last Resort. The United States Supreme Court is largely defined and authorized in Section Three of this same Article of this Constitution, it is more structured in the constitution and less a creature of Congress than in the Constitution of the Second Union. However, the general work of the judiciary shall be done in the inferior Courts as the Congress may from time to time ordain and establish. The Judges styled Justices of the United States Supreme and the Judges of the inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office except when all Union employees universally receive a diminution of pay of no more the ten percent in a national crisis of the first gravity authorized by Congress signed by the First Executive Vice-President and given a special free assent by the Emperor on recommendation of the GRIHHA.
Subsection Two: Competence and Capacity
Provision One: The United States Judiciary shall presume that there are cases for which the Imperial Judiciary alone is competent and matter of Jurisdictional law and litigation not reviewable in the United States Judiciary. They shall therefore have a set of motions and decress and evidentiary laws and rules for Exclusion for Lack of Jurisdiction, System Recusal for Federal Reasons, Recusal for Imperial Deference and Estoppel of Procedure for Lack of Competence or Impossibility of Venue.
Provision Two: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party. Much of the power and Capacity of the United States Judiciary is related to diversity which is briefly delineated here but is more defined in Section Two of this Article of this Constitution. In all Cases affecting the Union Executive directly and its Ambassadors, other public Ministers and Consuls, and those in which a Constitutional Jurisdiction shall be Party, the United States Supreme Court shall have original Jurisdiction. The United States shall be entitled to continue the merger of Law and Equity in most matters and procedures. However, the United States shall maintain a bench with no authority in law proper which shall be a Court of Equity in the Public Interest with a scientific and technical master college to have both intermediate appelate and direct powers over issues of nuissance to public health, ecological crimes, patents, copyrights and Honor Code Litigation matters not reserved exclusively to the Empire. The United States shall also maintain a bench with no authority or remedies in equity proper which shall be a Court of Law in the Government with a procedual and juridical master college to have both intermediate appelate and direct powers over issues of administrative regulation, federal procedure, and the rights of Compacts, Guilds, Tribes, Religious Institutions and those Honor Code and Nobility rights matters not reserved exclusively to the Empire. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Provision Three: Diversity Jurisdiction in the United States consists of Controversies between two or more Constitutional Juisdictions States and in those cases arising under Constitutional Jurisdiction laws between a Constitutional Jurisdiction and the Direct Imperial Government Jurisdiction;–between a Constitutional Jurisdiction and Citizens of another Constitutional Jurisdiction;–between Citizens of different Constitutional Jurisdictions;–between Citizens of the same Constitutional Jurisdiction claiming Lands under Grants of different Constitutional Jurisdictions, and between a Constitutional Jurisdiction, or the Citizens thereof, and foreign States, Sovereigns and Polities as well as the Citizens or Subjects thereof except where such claims are specifically reserved in this Constitution for the Emperor or that section of this Constituional Union known as the Empire. The Constitutional Jurisdictions are to be given full justice and due process but in matters of operational rank, protocol and priority all ranks are to be observed in a matter which does not impede the unique equality of parties to a legal dispute. This equality at the Bench and in the Dock must not become a program of Societal Equality.

Provision Four: The Trial of Original Instance of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the Constitutional Jurisdiction where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Subsection Three: The Direct Imperial Government Code, Law and the Laws and the Judiciary
Provision One: The Direct Imperial Government would interpret the law of its own code through its judidcary and at the top there will be two streams of finality one ending in ordinary cases with a High Appelate Court of which the Emperor is Extraordinary President ant the other ending with the US Supreme Court in some cases or the GRIHHA in other and only tenuously linked to the Emperor as Judiciary of Last Resort.
Provision Two: There will be Direct The Imperial Government Civil Code which shall govern much of the life and legal operation within Direct Imperial Government Lands. There will be a title within this Civil Code called Variances which will discuss the ways in which the various Districts such as The District of Columbia, Compact Districts of Compact Zones, Royal Fiat Bands and Fiefdoms can modify this Code as well as fill in its gaps and how and to what degree they can interpose their own authority between this Code and their Constituents. This Code will not be binding on any of the Constitutional Jurisdictions nor on the Federal Jurisdictions such as military bases of the United States military. However, where there is ambiguity or silence the courts and other governments will use this Code as an understanding of the law within the Empire on all subjects. There will be no Title in this Code more vital and more honored than Domestic Regimes nor more inviolate from Union interference.
Subsection Four: Jurisdictional Law
State Courts, Territory Courts and Possessions Courts will form each the judiciary of the ordinary laws and statute of their particular Constitutional Jurisdictions. However Federal removal will be continued from the 1789 Constitution as defined earlier in this section. When Federal Courts are interpreting Civilian Codes they must examine the sense of jurisdictional legal expertise and comments of the courts and attorneys general. In Commonlaw jurisdictions they must follow evolving Common law Principles of Res Judicata and Stare Decisis as well as the evolution taking place in the Empire.
Subsection Five: United States Law
The Federal law shall govern less of the society than in the second Union, However, it shall still Govern. The Federal Judiciary shall be its arbiter as well as the trier of diverse cases. The Federal Judiciary will acknowledge that a new form of law is devloping in the Union which has both Civilian and Common Law ancestry.
Subsection Six: Special Cases
Provision One: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. However, the United States shall have basic enforcement power subject to removal to the Empire proper for Imperial ajudication. There can also be treason a gainst the royal sovereign of a jurisdiction which can be prosecuted by the United States. Treason against a royal sovereign of a jurisdiction may not be easier of commission nor harsher of punishment than Treason against the Emperor, Empress or Empire. There shall be low and misdemeanor Treacherous Conduct agaist the Empire which shall consist of knowingly publishing or distributing materials or information intended to lead to the killing of royals or other who serve for life. Publicizing the sexual misconduct or alleged misconduct of the Ladies of the Royal House or any femal consort of the Emperor without the permission of the Emperor or GRIHHA, bringing unauthorized armed aliens into a palace or royal estate and the theft of classified information from a palace or the person of the Emperor or Empress. Penalties for misdemeanor Treacherous Conduct shall not exceed ten years in prison and a fine comparable to other ordinary serious fines in use. High Treason shall consist of attempted or successful knowing killing of the Emperor or Empress unless in a fully authorized and regular duel or Vendetta as regard the Emperor in all due and proper formality; Rape or coercive seduction of the Empress, Imperial Mistress of Ceremonies or the royal and legitimate wife of a Seeded Heir; True Forgery or Falsification of an Imperial Military Order or Edict. High Treason shall be punishable by Death. Gross and High Treason shall consist of successful murderous brigandage against multiple members of the Inner imperial House in their Palace or Private Domains — this shall be punishable by cruel and unusual execution of a capital sentence. No Person shall be convicted of Treason before first having a hearing before a panel for matters of venue, jurisdiction and competence and the certiciation of possession evidence before counsel representing not only the accused but such friends of the court as seek to preserve civil liberty as shall be admitted in small and reasonable numbers. Once this case is certied all documentary and circumstantial evidence must be preserved for fifty years and each instance decided as releaseable to the public or not with a memorandum of decision in each case. Should this evidence be found insufficient to proceed at any point the accused must be released unless convicted on the Testimony of two Witnesses to the same overt guilty Act, or on Confession in open Court. No Attainder of Treason shall work Corruption of Blood, or Forfeiture except on the Honor Code rating and it may not exceed the twice the highest deduction of Honor Rating points allowed for non-treasonous acts and such penalties as relate to the household of the Attained Traitor during the Life of the Person attainted
Provision Two: All the judiciary in the Empire and Union shall take cognizance beyond the DIG Code of the intrinsic importance of Aboriginal American Tribal Customs, Droit des Acadiens, Catholic Canon Law, the Ius Gentium of the Imperial House Protocols and Royal Customs at first colonizations. How this cognizance is taken shall vary according to the system of law and the case being tried.
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If you have the energy to discuss this with friends that would be great. But the basic point here in this Section One “The Recognized and Intended Magistracies” in Article Four ” Judiciary” is that for our system to work there must be an effective judiciary. This judicary will ahve to repsond to all aspects of the society and the union within the rubrics and parameters of this constitution. Here there is laid out a plan for how complicated legal problems related to style of government, federalism and the civil tension of civil and common law will work. Law and equity are severed in one part of the sytem and special cases of the law are discussed. This is even more controversial because it is fairly technical and I am not a technical operator in that regard. However, in a radical or revolutionary change there will be such disruptions — they are inevitable.

I have tagged a few FB friends and I will in some or all my notes. Any kind of political radicalism at any time is a risk for those associated with it and so I am keeping the tagging to a minimum and while a great deal of endorsement will be needed to effect these changes there is no indication that someone tagged in a note in this series is actually endorsing the note. As always I am willing to respond to posted comments, chat and private messages.

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Jim Davidson likes this.

Jim Davidson There are several issues that I think you may wish to address. First, the constitution as it is implemented today is not merely the original pamphlet-length document, but also many books of cases, precedents, and rulings. The body of constitutional law and doctrine in the United States would fill a great many volumes.

Second, I’m not clear what the point of this exercise would be. We’ve already seen that a constitution has no ability to actually limit government. The USA constitution was written by wise men who had in mind limits to government, and it was brought into existence among a population which had severe misgivings about government over-reach. And it failed.

It did not merely fail 220 years later, it failed right away. In 1794 there were draft riots in major cities. Washington marched 12,950 conscripts across Pennsylvania, killing 12 of them on the march, to enforce Hamilton’s whiskey tax. Once that was in place, the taxes and national debt were immediately used to begin 120 years of continuous war with Indian nations. By 1819, E I duPont was sitting on the board of directors of the second bank of the United States, lobbying for more money for more wars with more Indian nations, and selling gunpowder to the US Army to prosecute those wars. The military-industrial-financial complex was already a-building.

It would be mistaken to imagine that a better, longer, more complex constitution is going to be any better at limiting the power of government.
19 hours ago · Like
Frank Wynerth Summers III Jim Davidson, I appreciate your comments. Although we are not offline friends I have known you long enough to know that you are a learned and passionate man who struggles for what he sees as the enlghtened path. Your comments are most welcome.

I am less individualistic and Libertarian than you have always seemed to be. This is my appeal for peaceful change and I also go to great lenghts to avoid confrontation including possible migration until death in the future. However, I am a man who is not a virgin when it comes to violence, who does believe in the value of both community and society. There may come a time when I will feel compelled to act in ways which will be less peaceful in defense of what I hold dear. Should that happen this constitution alsoserves as a reminder to any and all of what I will have fought for. That could be as a rminder after I am fallen or as a call to arms.
18 hours ago · Like
Frank Wynerth Summers III However, as to the above let it be clear this is only a peaceful model and suggestion for now and the foreseaable future. Once again, JD, your time and energy are much appreciated…
18 hours ago · Like

Jim Davidson I’m for peaceful change. I simply don’t think there are political solutions available to redress the abundant problems from the excesses of politics. When you find yourself in swampy water, digging is the wrong answer.
17 hours ago · Like
Frank Wynerth Summers III Back to the substance of your first comment
“First, the constitution as it is implemented today is not merely the original pamphlet-length document, but also many books of cases, precedents, and rulings…” Well, there is a distibction betw…See More
16 hours ago · Like

Jim Davidson The constitution has either authorised all the tyranny we suffer, or it has been powerless to prevent any part of it. Whether it is one thing or the other, it is not fit to exist and is inappropriate to governing a free people. ~ Lysander Spooner, circa 1874. See his essays “No Treason, the constitution of no authority.”
16 hours ago · Like

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