by Alan Keyes
A constitution … must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two that which has the superior obligation and validity ought of course to be preferred to the statute …
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought … to regulate their decisions by the fundamental laws … (Federalist #78)
These days the cacophony of opinionated drivel that passes for serious discussion of constitutional issues drives me again and again to recur in my thinking to the writings of the original advocates of the U.S. Constitution. A sturdy thread of reasoning runs through and clarifies their argumentation. Because of their careful reasoning, the writings of the original Federalists exemplify a logic that can be extended, through changing times, to take account of various circumstances.
For example, the reasoning in Federalist #78 that justifies what we now call “judicial review” may logically be applied to the other branches of government because their powers are wielded by officials who are, like the justices of the Supreme Court, bound by their oath of office to abide by the Constitution. In their responsibility for separate and equal branches of government, these officials have a separate and equal obligation to act on a conscientious decision about whether their actions are consistent with their sworn duty.
Like the justices of the Supreme Court, therefore, the president of the United States must compare every act of Congress and every judicial judgment with what the Constitution requires. And, if he sees “an irreconcilable variance between the two, that which has the superior obligation and validity ought, or course to be preferred …” Logic forbids the notion that the view of the Constitution taken by one branch automatically commands obedience from the others. For if it did, they would not be separate and equal. Each has an independent obligation to make sure that the power for which it is chiefly responsible is used in a way that accords with the supreme law provided for in the Constitution.
Now, proponents of the Defense of Marriage law insist that the present occupant of the White House must simply “obey the law,” even if he has reached the conclusion that it violates a constitutional right he is obliged by oath to respect. But their insistence violates the logic that substantiates the Constitution’s constraining effect on the use of the U.S. government’s powers. In the first instance, each branch has the duty to keep within the boundaries of the Constitution. The issue involved in Obama’s refusal to defend DOMA is not, therefore, necessarily about his obligation to “obey the law.” It is about whether or not, in this particular instance, his view that the law is unconstitutional is correct.
Contrary to the self-aggrandizing assertions of the lawyers’ guild and its camp followers, the judicial branch cannot logically assert that it has the constitutional power simply to command the other branches. In any given case, the judges and justices are obliged to follow the Constitution in the exercise of their own power. But apart from the opinion they express in that particular case, “the judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aide of the executive arm even for the efficacy of its judgments.”
Obviously disputes will arise among the different branches as to the constitutionality of some judgment made, or action taken, by one or another of them. Of the three, however, only the legislative branch is provided with the power needed to initiate an attempt to alter the composition of the others. To be sure, that power is hedged about in various ways to assure against hasty and ill-conceived results that would fatally affect the stable operation of the government. Taken all in all, these hedges force constitutional issues down a path that may ultimately lead to an electoral scrutiny by the people, in whose voice and name the Constitution is written.
Because the elitist faction aims to overthrow constitutional government of, by and for the people, they work to obscure or tacitly deny this fact. They want Americans to accept the notion that those who happen to wield the power of government at any given moment may decide, amongst themselves and without recourse to the people, what is constitutional and what is not. If and when the American people foolishly acquiesce in this oligarchic lie, they will thereby surrender their status as a free people.
But does this mean that a constitutionally sufficient majority of the people have the right to impose their will, however patently unjust, on some or all the rest of the society? As the careful wording of Federalist #78 quietly indicates (when discussing the judges who are supposed to act as agents of the people), the people have the superior power but “they ought to regulate their decision by the fundamental laws …”
Having referred to the Constitution itself as “a fundamental law,” why does the argument at this point allude to “the fundamental laws”? Well, in the first place, the Constitution says, “This Constitution, and all 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,” thus conferring constitutional status on a plurality of laws and treaties. But beyond this, the Constitution refers, in the Ninth Amendment, to the fact that “the enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”
As I recently pointed out, we learn the source and nature of these unenumerated rights from another “fundamental law” of the United States – the Declaration of Independence, which ascribes them to the Creator’s endowment of all humanity. Most self-evident among them are the rights of the God-endowed natural family “rooted in obligations antecedent to any and all humanly instituted law or government.” From this endowment the people of the United States derive the sovereign authority to establish and maintain their self-government. Unless they are willing to subvert their own sovereignty, they are obliged, in their actions and decisions, to respect the source of authority that validates it.
In the weeks to come, the U.S. Supreme Court may decide to promote specious rights intended to supplant “the laws of nature and of nature’s God” invoked in the Declaration of Independence. They may decide, in contravention of the Ninth Amendment, to deny and disparage the natural rights of the God endowed family. It will then be for us, the people, to decide how to respond to their assault on the very root and source of our claim to decent liberty. If we respect the logic that reasonably, morally and constitutionally justifies what their decision seeks to destroy, we will be able confidently to appeal, as America’s founders did in the Declaration, “to the Supreme Judge of the world for the rectitude of our intentions.” Then, whatever we face, we will have the courage to defend the institution that God made to be the living archetype of all the rest of our belongings.
Why de facto government (tyranny) is replacing the Constitution
by Alan Keyes
Obama's pretended change of heart (actually, as Michael Gaynor points out, a reversion to type) signaled the launch of what is intended to be the elitist faction's decisive offensive against the natural family's God-endowed rights. This offensive is the culmination of the decades-long effort to erode the nation's allegiance to the self-evident truths upheld in the Declaration of Independence, beginning with the truth that, as the Creator of human nature, God determines the natural rights of all humanity.
By acknowledging the Creator as the arbiter of justice in human affairs, the Declaration set aside the then still prevalent claim that the de facto superiority of the powerful gave them the natural and unchallenged right to rule over all the rest. It made clear that, in God's will, power alone is not the standard of right. It articulated, for purposes of human government, the understanding that allowed each and every human being to claim the sanction of God's authority for those actions, necessary for their good and that of all humanity, which the laws of nature and of nature's God entitled them to undertake.
With this understanding, the Declaration emboldens the relatively weak to stand firm against abuses perpetrated by those who are relatively stronger. When the latter disparage, thwart, usurp, or despoil activities entailed by God's endowment of justice, the Declaration reminds us of the rights to which all who bear the title of humanity have equal claim. Thus emboldened by their consciousness of right, the weak may be moved to stand together, and by their common stand of righteous conscience transform their relative weakness into superior strength, sufficient to repel the abuses perpetrated against them.
In practical terms, this common stand of righteous conscience is the origin and method of governments which derive their just powers from the consent of the governed. For it represents the common impulse to righteous action, rooted in the affirmation of God's authority. That affirmation creates circumstances which make it necessary for the powerful few to take account of the will of all the rest, rather than simply imposing their own will upon others, as they are disposed to do. It allows those who are governed by conscience (their consciousness of God-endowed right) to check and constrain those who are otherwise inclined to govern without regard to God or conscience.
Readers who are willing to ponder and meditate upon this observation will inevitably realize that the moral understanding expressed in the Declaration of Independence is the sine qua non of republican self-government. Destroy the moral understanding that emboldens the people, and you destroy the motive for united action that is persistent enough to allow the people who are relatively weak to maintain the community of strength required to keep a cabal of the relatively strong from simply imposing their rule. Government by the consent of the governed (i.e., those who are governed by their consciousness of God-endowed right) constrains the rule of gangsters who would otherwise govern with no consciousness but of their own powerful will.
As I point out in my WND article, because of its power to impeach and remove officials serving in the other branches of government, the U.S. Congress is the only branch to which the Constitution gives the power to force an alteration in the composition of the other branches. Thus, when constitutional disputes arise among the branches of the U.S. government, the legislative branch is the one especially empowered to arbitrate them, but only when the community of strength from which the government derives its powers is at its peak, so that a sufficiently large majority makes impeachment and/or removal feasible.
But in the absence of a due regard for good conscience (i.e., the will to follow the God-endowed inclinations the voice of conscience articulates), the community of strength that constitutes the just powers derived from the consent of the people falls prey to the manipulation of material passion and fear. The powerful obviously have greater resources with which to undertake such manipulation. A de facto government of powers without regard to justice replaces the government of just powers derived from the consent of the governed. This fulfills the expectation expressed in William Penn's famous dictum: "Those who will not be governed by God will be ruled by tyrants."
It is no mere coincidence that with respect to all the most important issues of the nation's life right now, de facto government is replacing constitutional government as the order of the day. The root cause of this is exemplified by the fact that when the President refuses to enforce a law made pursuant to the Constitution, the members of Congress respond by appealing to the Supreme Court. The Constitution vests Congress with the power to discipline the President. What sense does it make for Congress to seek such disciplinary action from the Judicial branch, which has no power to act without the President's aid? The constitutional obligation to hold the President accountable for dereliction of duty clearly follows the responsibility for impeachment and removal. The U.S. Constitution gives that responsibility to Congress, not the Supreme Court.
It's disingenuous to object that there is, at present, not a sufficient majority in the U.S. Senate to remove Obama from office from his dereliction. The GOP has a sufficient majority to initiate and secure impeachment. The process of doing so would give the Republicans in the House repeated opportunities to convince voters of the gravity of Obama's offense and its grave consequences for the survival of America's constitutional, republican form of government. The interim elections would then test the effect of their efforts, giving the people the opportunity to rise in defense of the God-endowed rights of the natural family.
The GOP leadership refuses to mobilize the Constitution's provisions in this regard because they do not in fact believe that it is vital to defeat the elitist faction's assault on the natural family. More and more, the GOP elitists are joining in that assault, even though it involves openly abandoning the stand for God-endowed natural rights articulated in the Declaration of Independence. In coalition with Obama, the GOP leaders are in fact working to procure the formal, final, and complete abrogation of the Declaration's principles, and with it the de facto overthrow of America's constitutional self-government. Without a political vehicle to represent Americans determined to uphold the Declaration's God-acknowledging principles, this nefarious coalition will succeed. Such a vehicle would, like Noah's ark and the cross of Jesus Christ, signify our total reliance upon the justice, mercy, and providence of God. And in this time of its greatest spiritual peril, that reliance would be our de facto prayer, calling upon His aid on behalf of our faltering nation.