Discussions on the Model Constitution (17th Series): Judiciary, Supreme Court, Jurisprudence

Why and How I am a Committed Radical (17th in a Series) Judiciary, Chief Justice & The Supreme Court,The Emperor,Jurisprudence
by Frank Wynerth Summers III on Tuesday, April 24, 2012 at 10:05pm ·
This Note will be about the Third, Fourth and Fifth Sections 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 note is the last of three notes on the Fourth Article “Judiciary”. It is transitional in that the first Article was on Sovereignty which is more or less understood to be important by a lot of Americans and other people. It also happens to be the topic of the first Article of the current French Constitution. The next three articles were on the branches of government which Americans are familiar with in their elementary school social studies or their high school civics classes. There have been many changes and reforms so far but after this we enter into a whole new territory of governance.

I am going to discuss four aspects of the new American culture to which we would be transferring and into which we would be transforming. Those four aspects would be The Five-fold Nobility, the Interregnum, the Imperial Harem and the Ethnos Arkadios. These are important aspects of the process to understand and get right. On the other hand that is not the main reason for bringing them up at this point. I choose to discuss them here because together an individually they throw light upon and illustrate the entire set of political and social changes. I think that if I can make these stand a bit clear then the rest of the massive project would be more intelligible as well. In that spirit I begin my discussion of these institutions.

Here again for someone who has not carefull read all of the sixteen previous notes the role of the royal monarchs will stand out as the biggest and most important change. For those who have followed all or most of the notes I will try to address this subject in ways which are not too repetitive of everything else that I have already written on the subject of the royalist elements of this system. There will be many more times we will revisit this topic of royalism in this series of notes before we get through this series of discussions. The goal will be to build up a complete picture without wtiting completely independent essays, being too repeitive or being devoid of all relevance. So let ask why there ought to be an Emperor in the Judiciary and what sort of Emperor he should be. Let us do this not in complete detail but just from a particular partial point of view.

One definitely cannot make an omelette without breaking at least a few eggs. The revolution proposed here will certainly involve some extralegal and forcible actions in its creation if it is achieved. If one proposes a revolution one can at best hope for a return to full legitimacy and a new normalcy as quickly and expeditiously as possible. The justification for a revolution is that a severe constitutional imbalance already exists. It is clear to me that in America we are in a constitutionally imbalanced state of affairs.

The Emperor proposed here is already possessed of the title the Basileus Arkadios. This is a relatively unknown title but we want to see here that it is deeply tied to the United States already. This is about the Arcadian-Acadian heritage, people and Tribe. I have mentioned this subject often in this blog. I recommend that you read the rest of this post first and then come back to the links to other posts in this blog. Here are some of the posts and a page where Acadians or their institutions are mentioned are represented:
1. https://franksummers3ba.wordpress.com/2010/04/21/louisiana-in-the-proposed-reconstitutionalized-american-union/
2. https://franksummers3ba.wordpress.com/2010/04/20/monarchy-and-royalist-culture-in-america-past-present-and-future-part-3-3/
3. https://franksummers3ba.wordpress.com/2010/04/08/thinking-a-new-thing-a-competing-american-narrative/
4. https://franksummers3ba.wordpress.com/2010/01/28/see-you-later-alligator-after-a-while-bobby-charles/
5. https://franksummers3ba.wordpress.com/images/photographs-in-vermilion-parish/photographs-reproducing-mommees-paintings-1/
In order to show how Acadian experience is already relevant to the question of how Americans govern themselves I am offering links to longer and very worthy sources that can help one to understand how all of these historical issues are interrelated. The first really key point is that the real roots of the American Revolution occurred in a larger colonial context. I am going to recommend a book that does not declare ( as I do here and now) that the Acadian expulsion (loosely described in Longfellow’s epic poem Evangeline) were a principal cause of and stimulus to the American revolution. But it does show the connections of this event to the revolutionary ferment in a broad contest. In this regard I recommend Leach’s book.

Secondly, I want to show that the destruction of Acadie was a large and significant act. That it had everything to do with creating a British profile and character the Americans could distrust and that in their early history the Acadians had both elements the Americans were eager to restore to their experience of the British Constitution and also the chivalric and aristocratic values which I argue that we need to restore today. In which regard there is a recent book by John Mack Faragher:
http://www.amazon.com/Great-Noble-Scheme-Expulsion-Acadians/dp/0393051358 to understand the British view of how great and wealthy a land the Acadians had created and how eager they were to have its wealth for themselves. The Acadian experience is deeply tied to the American experience as a whole.”

However, in these notes I cannot really describe the Acadian people or experience because these notes are meant to be able to be read either individually, as a complete series, or as sets associated with each Article in the Model Constitution. The best I can go is outline their roles in the various topics being discussed in the proposed new regime. I will focus on doing that in this Note I have done with others discussing parts of the proposed regime.

Aside from showing that the persons, title and heritage involved here as Emperor and associated Imperial institutions are deeply tied to American Experience let us consider two more questions. The First of these questions is whether the royalist element has any relevance at all. Many Americans think it is related to the past and not relevant to the present. For the purposes of this Note I will discuss this very briefly. It is clearly true that China, the USA right now, France and Germany are republics and are among the largest econmies in the world. However the United Kingdom, Australia and Canada all make every list of the fifteen largest economies and they all share a British Royal Head of State. India is an emerging economy and has deep and close ties to British royalty and royalism that are ongoing and there is no erasure of its thousands of years of native roylaist traditions. Japan is the world’s third largest economy, has clsoe ties to America and is a royalist society. Spain is one of the fifteen largest economies and is a royalist regime. The emerging economy of Brazil still has an active and respected Imperial House and many thousands of influential people of varied walks of life would like to see a royalist Brazil. The European Union which is achieving a single economy status by many measures is the largest single economy when regarded as a single economy is full of royalist regimes. In Europe there are many royal monarchs: the Kingdom of Belgium, the Kingdom of Denmark, the Principality of Liechtenstein, the Grand Duchy of Luxembourg, the Principality of Monaco, the Kingdom of the Netherlands, the Kingdom of Norway, the Kingdom of Spain, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and that leaves out the strong royalist traditions and influential figures in many European republics and the strong affinity for royalism in the systems of Vatican City and the Principality of Andorra. The United Arab Emirates, Qatar, Saudi Arabia and Morocco have significant and mostly stabilizing influences in the Arab world, all are royalist regimes. It is possible for an honest person to prefer republicanism but it is not possible to say that royalism is obsolete and no longer relevant.

The Second of these questions is whether anti-royalism is the main and most intrinsic point of this constitution as many believe it is. In other posts I have shown how royalism is relevant to America and has roots here but that could be true and the Constitution could still be so anti-royalist that what could be called a “hybrid” like this constitution would be absurd. The Acadian Basileus as Emperor is a program for governance based on the Ancient Greek and Arcadian-Acadian political science that believesi n sources of power and legitimacy that are found in the One, the Many and the Few. That is exactly the model that we were given by our founders except in republican form. As John Adams wrote to Benjamin Rush in 1790,
No nation under Heaven ever was, now is, nor ever will be qualified for a Republican Government, unless you mean … resulting from a Balance of three powers, the Monarchical, Aristocratical, and Democratical … Americans are particularly unfit for any Republic but the Aristo-Democratical Monarchy.
These are very complex matters about which I have written extensively elsewhere, although not at length but in extensive brief essays. I would remind people of the deep influence of men like the Marquis de Lafayette who helped bring down a royalist system, found a republic and restore a royalist sytem in France. Also men like Alexander Hamilton who believed in mixed government and thought Britain should have been reformed and in fact was being reformed by the American crisis but also valued a royalist monarchy for America. Thus he wrote in his notes in 1787:

The monarch must have proportional strength. He ought to be hereditary, and to have so much power, that it will not be his interest to risk much to acquire more.
In this Model Constitution, some of the Emperor’s role and power appears in limited ways in each of several branches of government and sections of the shared sovereignty system. It is an American solution and Americanism has been corrupted by lies and thievery. It is only able to be restored to true Americansim with an infusion of American royalism. It may happen that a republic shall succeed this regime on these shores and be strengthened vy a royalist intlerlude. But the royalist element is needed to purify the rest.
So here is the text on the Judiciary we are discussing in this note:

***** ***** ***** **** ***** ****** ****** ****** ****
Section Three: The Chief Justice and The United States Supreme Court
Subsection One: Eleven Justices
The First Executive Vice President shall appoint seven Justices with the Advice and Consent of the US Senate for a term of life. The Justices may retire in good health without prejudice to their honor rating at the age of seventy-eight or older and also in sickness. The Empress, Imperial Tribal Council and Direct Imperial Government Legislature shall appoint one justice each with the advice and consent of the same Senate and under the same terms. The Emperor will appoint the Chief Justice with the advice and consent of the GRIHHA under the same terms. The seven Justices appointed by the First Executive Vice President shall be constrained to fit within a complex of assurances: at least four must be citizens of one of the States, at least one must be a citizen of one the Territories, at least one must be a citizen of one of the Possessions, at least three must be men, at least one must be a woman, at least one must be a Roman Catholic, at least one must be part of the Anglican Communion in the United States, at least one must be a person of known Hebrew descent who has had familial ties and some basic intellectual knowledge of Judaism in the Christian era and have attended a Jewish synagogue or Temple at least once — but this Justice need not be an adherent of the Jewish Faith. At the time of the founding, there will be an assessment done of how this regime can begin by reappointing as many sitting Justices as possible. But all will have to go through a set of fromalities.
Subsection Two: Certiorari and Jurisdiction
The Congress shall maintain from the 1789 constitution and establish in the future such coiurts and justice systems as are necessary to the operation and just governance of the Federal government. The Chief Justice may formally recommend against the creation of any entirely new Judicial office or court and theEmperor shall then consider vetoing it for one year and the remainder of the next session of Congress after which it may be reconsidered. The Emperor may certify three cases each year to the US Supreme Court. Otherwise the Court shall publish a Procedure of Certiorari with the Advice and COnsent of the Grand Senatorial Council which shall bind on it granting of certiorari. The Federal Judiciary ahall have subject matter Jurisdiction over cases arising under US and general Imperial Law except where the Grand Senatorial Council shall declare that a Jurisdictional law is overwhelmingly important in the operating facts of the case. In such cases the Jurisdictional courts shall rule. The US Supreme Court shall have mandatory certiorari for all cases involving death penalties for Imperial Censors, members of the Imperial House, and Foreign Royalty taken as Prisoners of War. It shall also have mandatory jurisdiction over judgements of default against any Sovereign in the Empire. It shall also have mandatory Certiroari over cases against the Imperial Tribal Council criminal or civil.
The Chief Justice and any other two justices or any five justices of the US Supreme Court without the Chief Justice or a three fourths majority of the Grand Senatorial Council may petition the Emperor to hear a case as the Judiciary of Last Resort after the Supreme Court has issued a decision. The Empress, Imperial Tribal Council or Imperial Heir may so petition on their own right. Any Foreign Royal condemend to death may so petition by his or her own right. The Enperor shall decide at his own whim whether or not to hear such cases.
Subsection Three: Judicial Review
The US Supreme Court shall be authorized to review the constitunality of US statutes, the soundness of Jurisdictional holdings on US Law and the propriety of decsions among the lower Federal Courts.
Subsection Four: The Chief Justice
The Chief Justice shall carry forward all the roles of his postion under the 1789 Constitution and take on a dew additional roles in the Third Union. He shall be appointed by the Emperor for life with the Advice and Consent of the Grand Royal Imperial House and Household Assembly. The Chief Justice shall Preside over the Imperial Law Institute’s Honors Convocation, the Committee to Draft the Procedure of Certiorari, the Smithsonian Institute and a small Force called the Union Bailiffs. He shall preside of the Supreme Court Trust which will receive one percent of all awarded Court costs, fines and fees collected by the Federal Judiciary. These funds shall be held in Trust with the Chief Justice and a committee administering the funds derived from earnings and interest. From this he shall sponsor awards, lectures and medals in the legal field. He shall always be a man and if he is married his wife shall sit on the Administrative Council of the Empress’s Bureau of Women’s Affairs. At the time this is adopted the current Chief Justice will be given Preference as the First Chief Justice of the Third Union but even if continued will go through a formal process.
Subsection Five: Solicitors and Attorneys General
The Solicitor General appointed by the First Executive Vice President, the Imperial Solicitor General and the Attorneys General of the States shall all be members of the Imperial Law Institute Honors Convocation and have amicus standing in all cases before the US Supreme Court.
Section Four: The Emperor, High Magistrate and Judiciary of Last Resort
Subsection One: The Emperor is High Magistrate of the Imperial House and in Household matters is beyond review. He holds judical office in the Imperial Tribe and is the ajudicator of Fact and Law in Last resort in the Union and Inperial systems.
Subsection Two: Congressional Competence
Provision One:The separation of powers is more complicated and less complete under this Constitution than in the Constitution of the Second Union. It is especially true that while the Emperor is subject to numerous limits under the Constitution his authority and role appears in all branches of government. He has direct jurisdiction as the COurt of first instance and the only court for disputes arising in Congress which are truly Congressional. He may choose to hear or not hear such cases at his whim. The US Federal Judiciary shall have not authority over the following matters they can only be appealed to the Emperor when two-thirds of the members of Grand Senatorial Council who are not in the Senate Proper shall certify a petition made by all leaders of minority parties or a leader of a minority party which in itself has more than two thirds of all seats not held by the largest party which is the majority party or leader of a majority coallition.

Provision Two: Enumeration of Causes Appealable only to the Emperor:
Only the Emperor may hear appeals for redress arising from the following rules or related causes of dispute:
1. Each Chamber shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each Chamber may provide.
2. Each Chamber may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.
3. Each Chamber shall keep a Journal of its Proceedings, these shall be titled the House Journal and the Senate Journal and shall be available only in a reading room in the Library of Congress building for five years and shall be as complete as possible and anotated by the Historian of each Chamber on Publication. These sources cooperate with the institution known as the Congressional Record and shall publish the same in all the ordinary media available for text and throughlinks to any recordings of events in a manner using the Congress’s access to its media such as requires little additional pay and shall also publish it in in print on subscription. The Congressional record shall consist of two parts The Record Proper and the Supplement. The Record Proper will be nothing other than the exact language of any bill or ammendment submitted for a vote at any given time a verbatim record in text of all words spoken audibly in a recognized proceeding on the Floor or from the Dais of either Chamber or Joint Session, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either Chamber on any question shall, Unless replaced by a Memorandum of Withholding passed by a vote of four-fifths of either Chamber, be entered on the Journal and thus the Record. The Supplement shall consist of the Supplement Proper and the Addendum. The Supplement Proper shall consist of applying by analogy to the body involved the same rules those in the Record Proper to the proceedings of Committees of either Chamber, the Conference Committees, the Grand Senatorial Council and Full Society Budget Conference. The Addendum shall be carefully cross-referenced and time-signed publication of materials and speeches in support of the material in the Propers and the proceedings they record. The use of calling things read into the record which are not actually spoken nor true bills and ammendments nor mere procedures sahll be an Honore Code offense and a misdemeanor against the Empire for all involved. Single Party Caucus proceedings anounced and memorandized as such into the Addendum alone are presumed to be official proceedings of recognized groups not subject to Record or Journal. However, any party that has a two-thirds majority of each chamber for twelve years together, or of a single chamber for eight years or a simple majority of one or both chambers for twenty-five years shall lose it’s privileges of secrecy at least in large part or completely if decreed so by the Emperor.
4. Neither Chamber, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Chambers shall be sitting.

Section Five: Jurisprudence
Subsection One: Codes, Statutes and Competences
The Imperial Law Institute shall report on all Codes, Statutes and Competences and the Emperor or his Solicitor may comment on such matters in the official published version.
Subsection Two: The Common Law and Stare Decisis
The Imperial Law Institute shall report on all Common Law, Lines of Precedent and Development of Stare Decisis and the Emperor or his Solicitor may comment on such matters in the official published version.
Subsection Three: The Imperial Pandects
The Imperial Law Institute will publish an Official sholarly commentary on the first two bodies of law mentioned in this section and on the state of the Judiciary every five years. ****** ***** ***** ***** ***** ******** **** ****** ****
If you have the energy to discuss this with friends that would be great. But the basic point here in this Section Three “The Chief Justice and The United States Supreme Court”, Four “The Emperor, High Magistrate and Judiciary of Last Resort” and Five “Jurisprudence” in Article Four ” Judiciary” is that for our system to work there must be an effective judiciary. This judicary will have to repsond federal, combined styles, mixed mixed government nature of our society and especially of the union and its role within the Union and Empire. This Diversity in a complex system of sovereignty requires a Court which is derived from several figures in the system and which is also responsive to and stimulated by information and reposting which represents the field and concept of diversity. The Emperor has a very different role than the SupremeCourt and both of these courts can choose to hear or ot hear most of the case they will be asked to hear and so all of the Federal Judiciary must deal with the challenges of diversity within the rubrics and parameters of this constitution. However, this Constitution recognizes that both the Constitutional Jurisdiction and the Empire proper are dealing with these same issues outside of the parameters of this Constitution as it appears in proper form. and Here there is laid out a plan for how complicated legal problems related to diversity arising from style of government, federalism and the civil tension of civil and common law can be worked out. The Emperor offers rederess fro issues arising from Congess itself and the enumerated rules and activities from which such appeals may arise are adaptations of authorization of powers granted to Congress for its own government acts in the current Article related to and authorizing Congress under the 1790s Constitution. I place it here in the Judiciary in part because of changes that have already occurred and in part because of changes proposed in this Model Constitution. This already radical document 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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