Article VI, Paragraph 2, of the Constitution states: "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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." This is often referred to as the 'Supremacy Clause'.
In other words, the Constitution and the laws which are generated in pursuance of actively implementing the provisions of the Constitution are to be considered the supreme law of the land … notwithstanding any exceptions – either in the Constitution itself or in terms of the laws of the various states – which are in accordance with the provisions of the Constitution. Seemingly, this means that the three branches of federal government are the shapers and determiners of what will constitute the supreme law which is to govern all aspects of life in the United States.
For example, many commentators on, and participants in, the kind of federalist system of government which appears to have been created through the structural character of the Constitution have long held that state laws which conflict with valid federal statutes are void. On the other hand, what constitutes a "valid federal statute" is not necessarily a straightforward issue.
In contradistinction to what commentators on, and participants in, an alleged federalist system of governance may have assumed concerning the meaning of the Supremacy Clause, the latter clause does not say that the federal government reigns supreme. What it says is that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof" are the supreme laws of the land. However, to be valid, none of the laws of the federal or state governments which are made in pursuance of the establishment of the Constitution may violate the principles inherent in the amended version of that document.
The amended Constitution has an entirely different dynamic than does the Constitution without amendments. In the latter case, it is very clear that a tremendous amount of power and authority lies as a potential within the grasp of the elected and appointed officers of a centralized federal government.
To be sure, there is that one little item about the guarantee of republican government to the states which could serve as something of a gadfly to federal aspirations. Nonetheless, other than the ambiguities surrounding the idea of republicanism -- along with a few phrases in the Preamble which, surely, give expression to nothing more than cosmetic phraseology which can be trotted out every 4th of July only to be quickly retired and forgotten once the parade and fireworks are over, the Constitution is a document which, prior to the time when amendments were added on, is almost exclusively about how different levels of government go about sharing power in relation to the regulation of the people and their resources.
Yet, once amendments were added to that document, the meaning of the Constitution became subject to a dynamic that was a function of a set of very different variables than existed in the not-yet-amended Constitution. For example, the existence of the 'establishment clause' (in relation to religion) in the First Amendment, the provisions of a grand jury in the Fifth Amendment, the principles and powers inherent in the Ninth and Tenth Amendments, as well as the "involuntary servitude" clause of the Thirteenth Amendment – not to mention the rest of the Bill of Rights and remaining amendments, totally alter the meaning of, among other things, the aforementioned Supremacy Clause.
All federal, state, and local laws are permissible only to the extent that they are consistent with the principles of the amended Constitution. The Declaration of Independence, the Preamble to the Constitution, the Bill of Rights, the promise of republican government to the people of the states, as well as the Thirteenth and Fourteenth Amendment (especially Section 1) indicate that it is the people who are the ones who are to be served by government, not vice versa … but, given the way things are today and have been for hundreds of years, the real meaning of the Supremacy Clause of the Constitution has been hidden from the people for quite some time.
Furthermore, the Article I, Section 8, provisions of the Constitution which enable the federal government to levy and collect taxes in order to provide for the common defense and promote the general welfare indicates that such money must be used to serve the purposes of the Constitution. This means, in turn, that in the amended version of the Constitution, the purposes of the people – as determined by the people and not necessarily by governments -- must be served through the use of such taxes.
In fact, although the Constitution does authorize Congress to levy and collect taxes, and although the Constitution does authorize Congress to establish "all laws which shall be necessary and proper for carrying into execution" the powers granted to Congress, none of this can be done if the principles inherent in: the Preamble to the Constitution; the guarantee of republican government; the establishment clause of the first amendment; the grand jury clause of the Fifth Amendment; the powers of the Ninth and Tenth Amendments; the 'involuntary servitude" clause of the Thirteenth Amendment, and Section 1 of the Fourteenth Amendment are violated. Many of these ideas already have been explored in the first part of this essay, but let's take a look at the idea of a grand jury which is mentioned in the Fifth Amendment.
More specifically, the Fifth Amendment says: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger." Normally speaking, grand juries are convened by federal and state prosecutors for purposes of conducting a preliminary investigation in order to determine whether sufficient evidence exists to proceed to trial in the case of an alleged crime.
As originally envisioned, a grand jury was intended to serve as a buffer between a powerful government and individuals who may have little power of their own so that a powerful government could not arbitrarily diminish, suspend, or abolish the liberties and rights of powerless individuals. As such, the grand jury was intended to serve as both a first line of defense and a last line of defense against the unwarranted encroachment of powerful branches of government into the lives of the people.
Neither the Constitution nor the Fifth Amendment specifies who may call a grand jury. Normally, as indicated earlier, this is presumed to be legal authorities representing either federal or state governments.
The Constitution does stipulate in Article III, Section 2, Paragraph 3, that: "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state 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." Nonetheless, a grand jury is not conducting a trial concerning a crime but, rather, a grand jury is conducting an investigation into whether, or not, a crime may have been committed and, if it is determined that a crime was committed, who may have committed such a crime.
Once the grand jury has reached a determination in a matter, then the results of their investigation will be handed over to the appropriate legal authorities for further action in accordance with the constitutional provisions for, if necessary, a trial by jury in the relevant locality. However, prior to the point of determination, a grand jury is empowered to investigate any possibility or set of circumstances in which a crime may have been committed, and to assist them in such an investigation, a grand jury has the power to subpoena anyone who it deems may have information or expertise relevant to the matter under investigation.
Do the people, as a result of the principles inherent in the Preamble – among which are to establish justice, provide for the common defense and the general welfare – or do the people -- as a result of the principles inherent in the 'establishment clause' of the First Amendment, or the provisions of the Ninth and Tenth Amendment, or the 'involuntary servitude' clause of the Thirteenth Amendment, or the principles expressed in Section 1 of the Fourteenth Amendment – have a right, on their own, to call for a grand jury investigation? What provision of the amended Constitution would prohibit this?
If the government wishes to impede the fundamental rights, powers, privileges, and immunities of the people from being given expression, then, it is up to the government to put forth an argument which is grounded in the amended Constitution that plausibly demonstrates its entitlement to ignore the will of the people. Nonetheless, although government officials who are inclined to thwart the will of the people may issue this or that statement citing a provision of some given state or federal statute, all such federal and state statutes are without constitutional authority unless they can be shown to reflect the character of the amended Constitution more faithfully and substantively than does the right of the people to convene a grand jury at its discretion and not at the discretion of government.
In fact, there is a prima facie problem concerning conflict of interest on the part of any government official who would seek to throw obstacles in the way of the people asserting their Fifth Amendment rights to convene a grand jury for purposes of determining whether a crime may have been perpetrated. Under such circumstances, the most honorable thing for public officials to do is simply to recuse themselves and to not obstruct the right of the people to protect themselves.
Furthermore, calling for the establishment of a grand jury is not just the right of the people when seeking to ensure that government does not abuse its authority and unjustly seek to convict a person of a crime without proper evidence. Calling for a grand jury is also the right of the people when there is reason to suppose that the government, itself, has used its power to hide evidence of government wrongdoing or used its power to misdirect attention away from some form of injury to the people in which the government has played a role. In either instance, the grand jury is a protection of the people against the power of government.
The duty of a grand jury is not to the state, nor is the duty of the grand jury to the federal government. The duty of the grand jury is to the people.
The federal government cannot control a grand jury or impose conditions upon it. The state cannot control a grand jury or impose conditions upon it. Rather, the only ones with the power to control what goes on within a grand jury are the people who are sitting on that democratic body.
The members of a grand jury are not bound by any laws except the laws of conscience, common sense, democratic sensibilities, and humane regard for their fellow human beings. Their deliberations need not be in accord with any book of evidential rules but only need to be in accord with, on the one hand, a healthy form of skepticism toward the abuses to which governmental power might be lent and, on the other hand, a rigorous regard for the truth, along with a willingness to ask the kind of questions which are likely to help the grand jury work its way toward establishing the truth of a given matter.
If the people have reason to believe that representatives of government – ranging from the members of city council, to members of state legislative assemblies, to governors, to representatives of the United States Congress, to appointed officials, including Supreme Court Justices, to the Executive Branch – have not faithfully upheld their oaths of office or have not acted in accordance with the requirements of the amended Constitution, then the people have the right to form a grand jury and investigate such possibilities. The people do not have to wait on federal prosecutors and state prosecutors to convene a grand jury, but, in point of fact, they have the Constitutional right to do so quite independent of government interests … and, often, it is not in the interests of government to convene a grand jury, and, therefore, they either do not call for a grand jury to be formed or they fail to clearly inform grand juries which are convened that the members of that grand jury have the right to pursue any matter of interest to them above and beyond the purposes for which a given prosecutor may have called them.
Even if one were to acknowledge the idea that the Constitution does admit to the foregoing idea of the people, independently of government, being able to convene a grand jury on their own, there are some potential practical problems surrounding this possibility. Not the least of these possible difficulties is who gets to convene a grand jury and under what circumstances?
Let's leave aside, for the moment, such considerations. Let's, for the moment, just focus on what a grand jury, as presently conceived, might do if one were to permit such democratic forums to realize some of their potential power.
For example, some people's eyebrows might have raised a bit when certain possibilities were mentioned in the foregoing such as the idea that grand juries have a right to investigate the Supreme Court. After all, isn't the Supreme Court sort of where the buck stops – apologies to Harry Truman notwithstanding? Isn't the Supreme Court sort of the supreme law of the land … the place to which everyone looks for the final say on any Constitutional matter?
Well, actually, the answer to these questions is not necessarily. In Article III, Section 1, of the Constitution, one finds the following: "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour", and, consequently, if the people have reason to believe that the Supreme Court Jurists have not behaved well with respect to their observing, honoring, and protecting all the provisions of the amended Constitution, then, the people, through grand juries, have the right to investigate such matters, and, as well, grand juries have the constitutional right to subpoena the Justices so they may be brought in for questioning.
Quite frankly, the Supreme Court Justices may have a lot for which to answer. As was discussed at some length in the first part of this essay, Supreme Court Justices often use arbitrary and artificial theories of judicial review to determine what the Constitution allegedly means.
The Constitution did not give them this authority. The Constitution does say that:
"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;--to controversies between two or more states;--between a state and citizens of another state;-- between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects."
However, the foregoing only indicates that the Supreme Court has been given jurisdictional standing to consider cases. Having jurisdiction does not necessarily entitle one to consider those cases in any way one likes.
In fact, being given jurisdiction to hear a case leaves open a whole set of questions concerning how cases for which one has been given jurisdiction are to be settled. What principles of justice and reasoning are to be used to decide such matters?
Obviously, according to the aforementioned 'Supremacy Clause', the Constitution and the laws which are issued in the pursuance of that Constitution are to be considered the law of the land. Presumably, the task of the Supreme Court is to try to determine whether, or not, laws have been legitimately and validly issued in the pursuance of the Constitution, but this leads to two further questions.
Firstly, what is the nature of the Constitution? Secondly, what are the principles which will demonstrate to the people whether any given instance of laws generated in the pursuance of the Constitution do, or do not, faithfully reflect and serve the requirements of the Constitution?
Part 1 of this essay has been preoccupied in showing that since the inception of the American republic there has been a persistent and concerted attempt on the part of all branches of government, including the Supreme Court, to ignore the fundamental rights, powers, privileges, liberties, and immunities of the people which have been established through the amended Constitution. This is especially so in relation to the constitutional guarantee of republican government, as well as in relation to: the 'Establishment Clause' of the First Amendment, the powers of the people inherent in the Ninth and Tenth Amendments, the 'involuntary servitude' clause of the Thirteenth Amendment, and the provisions of Section 1 of the Fourteenth Amendment's Section.
Through their decisions the Supreme Court has repeatedly thwarted the legitimate, constitutional rights, powers, and liberties of the people. Part 1 of this essay – limited though it may be -- has put forth numerous arguments which testify to the soundness of the foregoing claim. Consequently, the principles inherent in the Preamble to the Constitution demand that there be, at the discretion of the people, the establishment of a true and pure expression of republican government – that is, the action of people in the form of a grand jury which truly represents the interests of the people and, yet, which does not consist of individuals who hold elected office – and that such a democratic and republican body should have the right to investigate the behavior of Supreme Court Jurists and determine whether or not their conduct warrants them continuing to hold office.
Ultimately, it is not the Supreme Court which gets to determine what the nature of the Constitution is, nor is it the Supreme Court which gets to establish whether their arguments -- which seek to establish or disavow the existence of viable and faithful bridges between constitutional provisions and the issuing of laws in pursuance of the amended Constitution – are of such a compelling nature that the people understand why obeying certain laws issued in pursuance of the Constitution is in the interests of the people. Ultimately, the responsibility for deciding the meaning of the Constitution and the extent of the legitimacy of the laws issued in pursuance of the Constitution rests with the people, for this is the essence of any authentic form of democracy.
When deemed appropriate by the people (and not by the government), Supreme Court Justices must answer to the people with respect to the theories and methods of judicial review which the Justices use to filter and perceive the Constitution and the laws which are issued in pursuance of the Constitution. When deemed appropriate by the people (and not by government), Supreme Court Justices must answer to the people's satisfaction as to why – through the decisions of the Supreme Court -- philosophical, economic, and political ideologies and agendas are being thrust upon the people like so many government-established religions, or why – through the decisions of the Supreme Court -- philosophical, economic, and political ideologies are being used to force the people into government mandated forms of 'involuntary servitude', or why – through the decisions of the Supreme Court – the Ninth and Tenth Amendment rights of the people are being ceded away to governments and corporations, or why – through the decisions of the Supreme Court – the people are being denied the right to establish republican forms of self-governance which are independent of, but complementary to, forms of republicanism which are restricted to elected representation.
Moreover, anyone who says that the idea of republican forms of self-governance which are independent of, but complementary to, the idea of elected, representative, republican government is a whimsical myth fails to see what is taking place in every city, county, and state within the United States nearly every day of the week. More specifically, grand juries and trial juries are both expressions of republican self-governance which are independent of, but complementary to, elected, representational republican government, and there is absolutely no reason why the people – if not oppressively prevented from doing so by governments that fear losing power to the people – couldn't devise other modalities of republican self-governance which are independent of, but complementary to, that government which arises through elected representational forms of republican governance.
Just as Supreme Court Justices may be subpoenaed and questioned by a grand jury, so too, may members of Congress. Article I, Section 1, of the Constitution indicates that Senators and Representatives "shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place."
A grand jury subpoena does not constitute arrest and, therefore, the members of Congress are not privileged from acting in accordance with the requirements of that subpoena. Moreover, if there is reason to believe that members of Congress may have been guilty of betraying their oath of office, or have failed to uphold the provisions of the amended Constitution, or have sought to cede away rights to different branches of government which, in reality, belong to the people, or have committed breaches of the peace through denying the people the rights, powers, privileges, immunities, and liberties which belong to the people, or may have committed some form of felony, then, members of Congress are just as much subject to answering to the people through the agency of a grand jury as is anyone else about whom there may be some question concerning whether, or not, a crime has been committed. And, while, according to the Constitution, Senators and Representatives may not be questioned in any other place concerning things said during speeches and debates within either House of government, the provisions of the Constitution do not protect members of Congress from having to answer to the people for a voting record which seeks to establish laws that are not in pursuance of the Constitution as required by Article VI, Paragraph 2 of the Constitution.
Notwithstanding the foregoing considerations, grand juries cannot be used as a tool of political persecution. For example, if an elected or appointed representative happened to pursue his or her oath of office in a way that was not to the liking of a given group of individuals, then, the latter group cannot try to form a grand jury in order to harass the public official in question. Grand juries cannot be used for frivolous purposes or to further the agendas or political ideologies of its members, and, in fact, before being impanelled grand jurors must swear an oath which is a binding and sacred oath that is fairly detailed and exacting in its requirements for diligence, sincerity, honesty, impartiality, and a rigorous search for the truth on the part of the participants in such a grand jury proceeding.
Furthermore, if a no bill [of indictment] is passed by a grand jury, then whatever deliberations, testimony, and investigation have taken place must be kept secret. Therefore, such grand jury proceedings could not be used as a forum for trying to embarrass elected officials.
However, once a grand jury has been convened by a prosecutor, then, it is really free to pursue whichever events or issues it considers of relevance and importance which suggest the possibility that some sort of crime may have been perpetrated against the people of the jurisdiction within which the grand jury has been convened, and these events/issues need not have anything to do with the purposes for which the grand jury might have been initially convened. While the judge who instructs the members a grand jury concerning their duties is supposed to make it clear that the members of the grand jury are free to explore whatever issues they consider to be of importance with respect to possible criminal activity against the people even when this is unrelated to the purposes for which a prosecutor may have convened the grand jury, judges do not always properly instruct or educate the members of a grand jury about the incredible power that the latter individuals have to serve the interests of democracy.
In short, grand jurors have the right to take charge of the proceedings of a grand jury and determine the direction it will lead and the scope of those proceedings without needing the consent of the government to do this. Moreover, all of this is funded by money which has been levied on, and collected from, taxpayers.
Under Article I, Section 5, of the Constitution, one discovers that: "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member," but these are matters which concern the established procedures through which each institution seeks to go about its business in an orderly and agreed upon manner, and the above mentioned section of the Constitution is not intended to encompass whether, or not, a given Senator or Representative has conducted herself or himself in a manner which upholds their oath of office – namely, "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."
So, in cases where a Senator, Representative, or an elected or appointed official at the federal level is engaged in some sort of activity which involves more than merely abusing the procedural rules of the House or Senate, and, instead, involves activity of a kind that involves failure to fulfill the duties and responsibilities to which the above sort of oath of office commits a person(such as permitting lobbyist and campaign contributions to influence or determine one's vote or such as permitting corporate interests to undermine and effectively deny the rights of the people), then, initially at least, such individuals might best be investigated through a means other than the House or Senate. This sort of investigation could be done by a grand jury.
Article 1, Section 2, Paragraph 5 of the Constitution stipulates that the House of Representatives "shall have sole power of impeachment." Article II, Section 4, of the Constitution states: The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
Finally, the Constitution also stipulates in Article I, Section 3, Paragraph 7 that: "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." I'm not certain whether a failure to fulfill the requirements of the public oath of office quoted earlier (such as defending the Constitution against all enemies … including domestic ones in the form of lobbyists or corporations) constitutes treason, and/or a high crime, and/or a misdemeanor, but whatever the case, such acts are something which a grand jury could pursue as a legitimate area of investigation under its mandate.
Moreover, if a grand jury were to investigate a Senator or Representative within its jurisdiction in relation to, say, a failure to fulfill her or his oath of office with respect to defending the Constitution against all enemies -- including domestic enemies (which could be individuals or corporations that act against the interests of the people of the United States) -- and if that grand jury were to find sufficient evidence to warrant passing an indictment against such a person, then, one possibility might be for the indictment to be passed on to the House of Representatives so that they might issue articles of impeachment concerning the Senator or Representative, and another possibility might be to pass on the indictment to a state prosecutor for appropriate disposition. One problem with each of the foregoing possibilities is that neither the House of Representatives nor a prosecutor is under any obligation to act on such an indictment, and so this raises the problem of what to do when governmental power is used to thwart the will of the people … and the same problem arises when elected representatives may have become so corrupt that even if articles of impeachment were drawn up and a Senator or Representative was tried before the Senate that one could not achieve the required vote of two-thirds of its members because all of them might be looking at the defendant with the sympathetic eye of self-preservation which acknowledged that 'there but for the Grace of God go I' and, as a result, vote not to have the individual removed from office even though a great disserve might be done to the amended Constitution and the rights of the people in the process.
Consequently, if a grand jury were to vote for an indictment on some given issue, but a prosecutor or the House of Representatives refused to act on that indictment, then the will of the people might have been effectively thwarted by representatives of the government. This is so because even though state prosecutors are elected to serve the people, and even though federal prosecutors are appointed through the Office of the Attorney General and are supposed to serve the people, and even though the House of Representatives was specifically given the task of representing the people, the fact of the matter is that elected and appointed officials of the government don't necessarily always serve the interests of the people, and a prosecutor's rebuffing or the House of Representatives rebuffing of an indictment from a grand jury might give expression to such a possibility.
The foregoing does suggest, however, that there may be limits on the extent to which a grand jury may be able to help defend the Constitution, democracy, and their fellow citizens. However, as will be discussed shortly, the existence of such a problem in relation to the idea of a grand jury may also point to a possible way of resolving this sort of dilemma.
| Part 1 | Part 2 | Part 3 | Part 4 | Part 5 |
| Part 6 | Part 7 | Next | Part 10 | Part 11 |
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The New/Old Common Sense And The Rights of Human Beings
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