ABROGATION-THE COMMERCE CLAUSE-AND SOVEREIGNTY
Posted by rezinate on March 15, 2012
The subject of treaties and the rights which they afford has become a convoluted mess.
William Penn, an early immigrant, openly stated and advocated for a policy that recognized indigenous people as deserving of respect, autonomy, and fair treatment.As we can see though through the lens of history such a policy didn’t last long and did not become a model for future agreements.
Early on indigenous people had little if any familiarity with documents. That lack of familiarity and an understanding of the language was an extreme disadvantage.The lack of citizenship and representation only served to exacerbate that as time went on.
During the Constitutional Convention of 1787 it was determined that states entering various treaty agreements of their own created conflicts-to address that a decision was arrived at to singularly grant those powers to the federal government under Article 1 Section 8 -that reads in part as follows:
The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes………In furtherance of this Article 2 Section 2 states:
That the President “has the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….”
Steps were taken to insure that the language regarding this presidential power applied to both domestic and foreign nations and required a two thirds vote of approval by the Senate.
Article VI provides, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, SHALL BE THE SUPREME LAW OF THE LAND….”
On the face of it this seems clearly defined and binding, but amendments and legislation have served to dilute -and that is the core of the issue and the fight that is being waged.
What has followed as matter of course is if a “law” isn’t found to be convenient then a new one is written to circumvent it.
When the current president was on the campaign trail he made a point during his photo op tour of echoing this sentiment that treaties are in effect law-and no doubt when he hits the campaign trail again we will probably hear another vacant blurb to the same effect.
During the Congressional Session of 1871 Congress passed new additional legislation that disallowed the Federal government from entering into any new treaties with indigenous people-effectively transferring authority to the courts, acts of Congressional legislation, and the Dept. of the Interior.
In effect what this accomplished was to grant plenary power to Congress in treaty matters.
The Cherokee Tobacco case of 1870 brought by Stand Watie and Elias Boudinot under Article 10 of the treaty between the Cherokee and the federal government, and the ruling that followed is another indication of the direction the U.S was taking-a ruling designed to undermine the concept of the nations as being sovereign.
The next major blow came in Lone Wolf v Hitchcock as decided by the Supreme Court in 1903 and ruled that treaties between the nations and the government can be abrogated-which in effect grants what is referred to as plenary authority and defined as the following:
“In United States constitutional law, plenary power is a power that has been granted to a body in absolute terms, with no review of, or limitations upon, the exercise of the power. The assignment of a plenary power to one body divests all other bodies from the right to exercise that power, and where not otherwise entitled; also, the right to substantively review the exercise of that power in a particular instance or in general.”
The only sufferance related to this absolute power is an “obligation” to compensate as stated in the 1937 case of Shoshone Tribe v U.S. and based on the 5th Amendment.
Maybe it’s just me, but I believe the very concept of absolute power within a democratic structure is completely antithetical and lacking merit.
Not a single nation in this country or Canada, has escaped the legislative manipulations effecting treaties, or the outright violations of them. In this nation alone hundreds of treaties were entered into and every one of them has been violated.
What the non -indigenous fail to understand is that the “treaty” they have is also routinely violated by acts committed under the premise of Eminent Domain as one example.
The “treaty” they have entered into safe guarding their right to privacy, freedom of assembly, being secure in their persons, and most importantly the right to a redress of their grievances are all being systematically eroded as well.
If you doubt this send your grandmother to stand in line to be mauled by a TSA agent, or ask yourself why such things as secret courts and warrantless wiretaps exist. Join the OWS and see how long it takes to get tased, sprayed, or smacked down.
If any want to know where it all leads they need look no farther than the nations.
What transparency exists when Senate and Congressional committees meet behind closed doors with no public awareness or input to cobble together legislation?
What needs to be addressed is more than the treaties as they are written-the focus should be on those legislative acts that have undermined them and their obvious lack of constitutional viability in relationship to what was intended to be the Humanist nature of the Constitution-reverse those and the treaties will in fact become the supreme law of the land.
The Constitution’s inclusion of such things as “all men are created equal and endowed with certain inalienable rights” speaks to this Humanist intent-had the original document been adhered to, society as we know it would be markedly different.
The backdoor employed to circumvent this has been amendments, revised interpretations, and legislation-often done so under the guise that it is a living document that requires manipulation to keep abreast of social change-yet this very quote of equality seems to me to be sufficient in itself to address any issues that arise.
This and the inclusion of the word War when a right is to be violated. A war on drugs, a war on terrorism, a war on crimes-all needing to be addressed, but the mere inclusion and marketing of this word war in such a context by design lends itself to violations.
There is an irony that the Commerce Clause is employed as a defense of the healthcare bill-I suspect we will see this same clause applied at some date to the Second Amendment, which in fact has it’s origins in the English Bill of Rights enacted in 1689 after James the Second was overthrown in what is known as the Glorious Revolution.
For all their rhetoric it is groups such as the so called militias, and hate groups like the Aryan Nations that will contribute to this.
I cannot envision a scenario where such a reversal of legislation would take place, but it certainly is worth the effort to attempt doing so-in the interim what is left is more will be lost while being “compensated” for.
A dollar value has been placed on, and too often accepted in matters of sovereignty and what is rightfully ours. Nothing easy-but we can either work to simplify things or make them more difficult.
Finally, on having mentioned the Healthcare Bill, I favor it-again it is the taxpayers money, and I don’t believe the issue of health is to be defined by profit as big pharma and corporations would have it to be. A sticking point for me is the inclusion of criminalizing people who aren’t covered.