Advisory request 002 - Judicial and legislative powers

[Rogamark]

Petitioner Louisistan asked: "Do article 5 and article I, 1 conflict with article 1 of the Constitution?"

The Chief Justice presiding over the full Court. Petitioner Louisistan and the Attorney General are not required, but invited, to submit briefs expressing their opinions. Anybody else may express theirs via amicus curiae brief in the Courtroom Gallery. 

I will allow five (5) days for briefs, until June 18, 01:00 CEST.

[Louisistan]

Participatory brief by Louisistan, original petitioner for this advisory opinion, as requested by Chief Justice Rogamark

I extend my gratitude to the Supreme Court of Spiritus for acknowledging my standing and hearing this case.

I will briefly outline my (non-)credentials with regards to this issue. I do not hold an IRL law degree, nor am I professionally trained in any legal issues, except for hearing an introductory course on IT Law in university. However, I am regularly on the implementing or applying side of laws, bylaws and legalese regulations both professionally (mostly pertaining to data protection and IT security) and as a volunteer administrator in a federal agency (mostly pertaining to administrative law). As such, I consider myself a "user" of law and to apply or implement the law I do need to understand it, even though some nuances are likely to escape me. In NS terms, I have served as a member of the Spiritus Legislature for a (shortened) term and have served two terms as Senator and one term as Delegate of 10000 Islands (both positions come with a seat on the Council of Nine, the region's legislative body). I have authored a number of regional laws in 10000 Islands.

The question was put to the Court out of genuine curiosity. In my untrained eye, the constitution is at least somewhat ambiguous and clarification is therefore requested because I believe our regional laws should be as easy to understand and apply as possible - especially considering that a sizeable number of citizens does not speak English as their mother tounge.

My initial analysis would indicate that Article 5 and Article I,1 both supersede Article 1 and that the citizens of Spiritus do no longer hold the legislative and judicial powers of Spiritus. As such, there is no between those articles because a hierarchy can be established as outlined below.

Article 1 states

"The legislative, executive and judicial powers of Spiritus are vested in its citizens, who are sovereign acting collectively by at least a simple majority, unless otherwise prescribed by this Constitution."

Article 5 states:

"The legislative powers and duties shall be vested in a Legislature in accordance with the provisions of this Constitution."

Article I,1 states:

"The judicial powers and duties shall be vested in the Supreme Court of Spiritus. It may interpret this Constitution and any and all laws and regulations of Spiritus except community rules and guidelines issued by the admin team. It shall conduct criminal trials, and all other proceedings assigned to it by law. Final decisions of the Supreme Court are binding upon all officials and citizens of Spiritus."

Article 1 describes the initial setup wherein all three categories of powers are vested in the citizens, but goes on to state that the Constitution may make other prescriptions. There is some ambiguity here over whether that last subclause extends to the entire article or only the subclause specifying a simple majority. I would argue that it extends to the entire article.

Following this, Article 5 then vests the legislative powers and duties in the Legislature. This, in my opinion would be one such prescription which Article 1 allows for.

If we accept this line of thought, it must also be applied to Article I,1 for the sake of consistency.

If this is indeed a valid reading of the constitution, then the citizens of Spiritus have forfeited their legislative powers by voting to accept the amendmend from 12th April 2019 and forfeited their judicial powers by voting to accept the First Amendment. Whether that is a desirable state of affairs is another question entirely.

There is a remainig question here which is this: Why would Article 1 continue to stand unamended if it is superseded by subsequent amendments? I would argue that it describes a default position. Where no other provisions are made, all powers default to the citizens of Spiritus. This would be supported by the notion that Article 1 reads as a statement of fact (the powers are vested in the citizens), whereas the amendments read as an order (the powers [which otherwise would lie with the citizens] shall be vested [by the citizens] in the legislature and the Supreme Court respectively).

Now let us look at alternative readings and why I don't believe them to be as convincing as the one I described above.

One possibility would be that the Legislature and the Supreme Court are exercising their powers on behalf of the citizens. I would argue that this is not the case. Compare Article 5 and Article I,1 to Article 3, which describes the office of Chief Executive: At the beginning of every February, June and October, the citizens must elect a Chief Executive. Subject to the direction of the citizens, the Chief Executive may exercise all of their executive powers. It is clear here, that the Chief Executive exercises the executive powers on behalf of the citizens. The executive powers are not vested in the Chief Executive. If the intention had been to have the legislature and the Supreme Court act on behalf of the citizens, the articles would need to have been worded more like Article 3.

Another possibility would be that the legislative powers are concurrently vested in the citizens and the Legislature and the judicial powers concurrently in the citizens and Supreme Court. This would empower citizens to pass laws by a simple majority (circumventing the Legislature) and to exercise judicial powers (such as passing judgment on criminal cases) by simple majority. I acknowledge this is a valid interpretation, especially if Article 1's last subclause extends only to the majority. This would create ambiguity, especially in a judicial context. Without a method of conflict resolution in case the citizens and the constitutional organs in question disagree, this would be immensely impractical. I also maintain that the last subclause of Article 1 extends to the whole article and as such Article 1 can be and is superseded by constitutional amendments.

In conclusion, I believe that the citizens of Spiritus have forfeited their judicial and legislative powers, although they would regain those powers in case the relevant amended articles were repealed. Thus, the Legislature is the sole holder of legislative power and the Supreme Court is the sole holder of judicial power. There is no conflict, although it may appear so at first glance to the untrained superficial reader.

I look forward to clarification from this court whether or not it agrees with my analysis. I thank everyone who participates in these proceedings and thus help to provide clarity on the constitution of Spiritus.

[TimS]

Brief for Spiritus as Amicus Curiae

This brief is submitted in response to the Court’s order inviting the Attorney General to express the views of Spiritus.

It is the opinion of the Government that no articles of the Constitution conflict with any other articles of the Constitution. The Government will be addressing this point both generally and specifically in regards to the articles mentioned and will do so in three parts: from a philosophical perspective, using canons of construction, and most importantly from a practical standpoint.

I. Philosophy

The Government does not wish to put forth a definitive philosophical argument or complete explanation of how and why power in Spiritus works the way it does, as a truly complete discussion would take a very long time and is largely irrelevant to the question. The Government only wishes to express its belief that the power to govern in Spiritus (including all executive, judicial, and legislative powers) comes from the people of Spiritus. All nations that have existed have had the power to govern come from somewhere, whether it comes directly from a higher power or is funneled through God into a Monarch or comes from the people of that nation. In the case of Spiritus, we have always functioned with all power stemming from the citizenry. All other governing constructs that are set up are the people delegating that power and agreeing to abide by certain processes in exchange for a functioning society. The people cannot give away this power as it is not something that can be fully given away, destroyed, or otherwise removed since it comes from the people themselves.

This is regardless of whatever the particular words of the Constitution are. While the word "vested" implies that the power has been given to the people from some other entity, the Government believes this word choice does not change the fundamental fact that power comes from the people. This is more fundamental than even the Constitution. Any other governing constructs set up by the Constitution are delegations of that power with the people agreeing to abide within certain processes. For example, in a natural state of being the people of Spiritus can create laws however they want. Through the Constitution, the people have settled on a particular legislative process through which laws are enacted and created a legislature to create those laws.

To summarize: the Constitution reaffirms the already existing fact, a fact that cannot be changed by the Constitution, that the power to govern exists in the people¹. The people are free to delegate some of that power to certain entities and agree to abide by certain procedures in how that power is used, procedures which the people must then follow, but all power continues to come from the people of Spiritus.

II. Canons of Construction

The Government admits that canons of statutory interpretation and construction are, as the name implies, primarily used for interpreting statutes and seldom used in a Constitutional context. Nonetheless, the Government believes a few canons would be useful here. First, and most relevant, is the Harmonious-Reading Canon which states that provisions of a text should be interpreted in a way that renders them compatible, not contradictory. Following this canon alone is enough to resolve the question on its face since the canon requires the adoption of an interpretation of the articles in question that do not conflict. There is a canon known as the Irreconcilability Canon which takes effect when two clauses are truly irreconcilable at a fundamental level, but the Government does not believe this is the case here. As discussed in part I, a reasonable interpretation of the Constitution could be that the people, from whom all power to govern stems, have decided on a particular system with which to use their legislative and judicial powers and so agreed on a set of procedures to follow while delegating those powers to particular entities. The people have not lost their power in any meaningful sense, they just have agreed that the power will be used in a certain way. The last canon worth mentioning is the Absurdity Canon, which states in essence that absurd outcomes should be avoided². The potential absurdities that could arise from other interpretations of the Constitution will be discussed in the next section as they are of a practical nature.

III. Practical Effects

The Government believes that alternative interpretations create a number of unfortunate practical questions which should be avoided. Most fundamentally, if two articles of the Constitution are found to be incompatible, what then? Aside from the implication (even if it is a legal fiction) that the Citizens knowingly and intentionally created a system that cannot exist, the Judiciary cannot overturn part of the Constitution for being unconstitutional or for any other reason, as that would be absurd. Perhaps the articles in question merely become inoperative until the Citizens rewrite the Constitution to fix the problem? While the Government does wish to encourage careful word usage when writing legislation, the Government does not believe such an extreme course of action needs to be taken when other, more reasonable, interpretations exist. That too would be absurd and would paralyze most of the Government of Spiritus.

In conclusion, the Government believes that no articles of the Constitution conflict with any other articles of the Constitution including the articles in question. The power to govern comes from the people of Spiritus and they cannot lose that power no matter which procedures they agree to follow or what entities it chooses to delegate some of that power too. Nor does keeping that power prevent the following of those procedures or those entities which have had power given to them from acting.

The Government thanks the Court for its time.

Timothy Snyder
Attorney General of Spiritus

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¹In a particularly literal interpretation, it could be said that the people of Spiritus "vested" (gave) its power to itself for whatever reason, as well as giving it to the entities it set up and gave particular powers to. Even here the clause is simply a reminder that all power originally stems from the people.

²This particular canon has a few uses which the Government believes are outside the scope of this discussion, and so the Government does not necessarily suggest the Court must formally adopt the canon yet. The Government only suggests that the Court should prefer an interpretation of the articles in question that do not reach an absurd result over ones that do.

[Rogamark]

Advisory Opinion 002 - Judicial and legislative powers

Per curiam:


The Court thanks the Attorney General, Petitioner Louisistan, and citizen Legonimis, for their participation through briefs.

Petitioner's suggested analysis is correct in result, the provisions do not conflict. Read in context of the entire constitutional framework, article 1 does not prevent the vesting of governmental powers and responsibilities in other bodies. Legislative power is held by the Legislature of Spiritus, executive power by the Chief Executive, judicial power by this Court.

Petitioner asks in his brief why article 1 stands unamended despite those later additions. We observe that Article 1 is somewhat imprecise, in that the word "vested" not only implies imposition by a third party, but also oddly contrasts with the correct usage of the word throughout the rest of the Constitution. We believe, however, that the context of Article 1 is sufficiently clear to resolve any uncertainties. The last part of the article, "unless otherwise provided by this Constitution" modifies the main clause as subordinating language, clarifying that this provision is specifically subject to supersedure. Further, the citizens are identified as "sovereign", and it was a two-third majority of the citizens that amended the Constitution to create the bodies to which the powers are now delegated.

This is also in line with the rules of interpretation employed by courts since the days of the Roman Republic - later provisions displace older ones, specific provisions displace more general ones. Nor does this interpretation yield a result so absurd that no sane person could have possibly intended it. Setting up institutions of government, especially in the context of NS where everything is about governance, is a perfectly normal occurrence, and it has happened here.

Finally, it is not nonsensical to let Article 1 stand unamended. If we were to remove Article 5 or the First Amendment, thereby abolishing the Court or the Legislature, it makes clear that the legislative or judicial powers would shift back to the citizenry as a whole, to be exercised by majority vote. While it might not seem prudent or likely to happen at current activity levels, it is nonetheless the prerogative of the citizens to pass such an amendment if desired, and it does not hurt to have a fallback provision for such a case.


Rogamark, Chief Justice, with whom Ltin, Magistrate Judge, joins, concurring:


The Court resolves the question correctly on plain text and contextual reading, and I join the opinion in full. In deliberating about this case, the Court has also pondered the meaning and significance of the "sovereign" status of the citizens as a whole in light of delegated governance. Seeing as:

- the relevant amendments were passed by a supermajority of the citizens

- changes to the current structure have the same referendum requirement

- all officials wielding constitutional power are democratically accountable through the ballot box

- citizens may directly run in elections for any such position except that of Chief Justice

we need not delve into sovereignty with respect to this question, because the government of Spiritus is clearly controlled by the citizens in every major regard under any reasonable standard. Should, however, any future changes in law materially diminish citizen involvement and control, we would have to revisit the question of whether and to what extent they might be protected under Article 1.