Keyes on State and Church

Alan Keyes has a brilliant column at WND, Aug. 26, on what the US federal constitution says about the federal government and religion. It makes everything else I've read about this look shallow to the point of stupidity. I'm quoting a lot of it (emphasis as in original):

When he ordered the removal of the Ten Commandments monument from the Supreme Court building in Alabama, federal judge Myron Thompson stated that the issue at stake involved the question of whether or not the state has the right to acknowledge God.

Actually, this formulation is a distraction from the real issue, which is whether or not Myron Thompson or any other federal judge has the right to interfere with state actions that may or may not constitute an establishment of religion....

Judge Moore and the people of Alabama

In the state of Alabama, Judge Roy Moore has refused the unlawful order of Judge Myron Thompson, since it represents a destructive violation of the right of the people of Alabama to decide how their government will or will not express their religious beliefs. This right of the people is the first one secured in the U.S. Constitution's Bill of Rights, and it cannot be compromised without surrendering the moral foundations of republican liberty. Judge Thompson's assault upon this right, and that of the entire federal judiciary for the last several decades, is not, therefore, a trivial threat to the liberty of the people. Judge Moore cannot obey the court's order without surrendering that liberty.

Now, the 14th Amendment to the U.S. Constitution, as it applies the Bill of Rights to the states, lays an obligation upon state legislatures, officers and officials to refrain from actions that deprive the people of their rights. With respect to the First Amendment, therefore, it becomes their positive obligation to resist federal encroachments that take away the right of the people to decide how their state governments deal with matters of religion. This obviously has a direct bearing on the case of Chief Justice Roy Moore in his confrontation with the abusive order of Judge Myron Thompson.

His refusal of the order is not only consistent with his duty to the Alabama Constitution, it is his duty under the Constitution of the United States. Alabama Attorney General Bill Pryor, the eight associate justices of the Alabama Supreme Court, and indeed any other state officials in Alabama who submit to the judge's order are, by contrast, in violation of the federal Constitution, as well as their duty to the constitution and people of Alabama.

As a class, therefore, the citizens of Alabama are justified in bringing suit against them for their dereliction, and in seeking reparation for the damage that has been done to their right under the U.S. Constitution. Unfortunately, since the federal judiciary is the perpetrator of the assault against this right, how can the people of Alabama hope for a fair and unbiased judgment from any of the federal courts, including the Supreme Court?

Judicial self-interest

Lawyers will doubtless object on the grounds that the Supreme Court has repeatedly affirmed the jurisdiction of the federal courts in this regard. Their partisan reverence for the Supreme Court's opinions on this matter is wholly understandable, since a seat upon the court, or upon the bench of one of the inferior federal courts, usually represents the highest point toward which their ambition aspires. It is quite natural that they should support claims to a power that they may hope someday to wield.

However, lawyers' insistence that others show the same reverence is repugnant to reason and common sense. In the matter of their constitutional jurisdiction, as against the state courts or the other branches of the federal government, the federal courts – including the Supreme Court – have a strong and direct interest. If judgment in these matters is left to them absolutely, it must always lead to a situation in which the judges and justices sit in judgment of their own cause.

Our common sense joins the admonitions of the Founders of our republic in warning us not to rely on such intrinsically biased judgments. The prospect of expanding their power may distract the federal judges from the facts and merits of the case. This is, and ever has been, a weakness of our humanity.

The people and their representatives

This is why the U.S. Constitution, after enumerating certain cases over which the federal judiciary would have original jurisdiction, gave it appellate jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make." Therefore, the federal courts are not the ultimate judges of the boundaries of their own power. Final responsibility in this respect rests with the Congress.

Once we take note of this fact, it also becomes clear that thinking about matters of jurisdiction at the constitutional level cannot be considered the exclusive province of lawyers and judges. Though Congress has in some historical periods been composed of a plurality, or even a majority of lawyers, lawyers could never have an exclusionary claim to membership in its ranks. The people can send to Congress whom they choose, including people from walks of life in no way related to the legal profession. It follows, therefore, that the Constitution assumes that people who are not lawyers will have to reason and make judgments about the proper scope and limits to be imposed upon the appellate jurisdiction of the federal courts.

The fact that the Supreme Court affirms the federal judiciary's claim to jurisdiction over the state governments in matters pertaining to an establishment of religion does not, therefore, settle the issue. The Congress must review and oversee such a claim. Since the people choose the members of Congress, people at large, as they consider their election, are required to consider this claim as well.

Our analysis thus far demonstrates that the Supreme Court's affirmation of this claim of jurisdiction is contrary to the plain text of the Constitution: It usurps the right of the people in their respective states to decide their government's stance on religion; it violates Article IV, Section 4 of the Constitution by subverting the republican form of government with respect to this right; and by aiming coercively to establish an agnostic regime of atheism at all levels of government, it destroys religious freedom for the people as a whole and dangerously subverts the Constitution's prudent handling of matters pertaining to religion.

The right and duty of Congress

The text of the Constitution easily allows us to see and understand the federal judiciary's abuse of power and its usurpation of the right of the people in religious matters. It also provides a remedy for this abuse. The Congress must pass legislation that, in order to assure proper respect for the first clause of the First Amendment, excepts from the appellate jurisdiction of the federal courts those matters which, by the conjoint effect of the First and 10th Amendments, the Constitution reserves to the states respectively and to the people. (This language avoids a semantic difficulty, since congressional legislation that explicitly mentioned matters pertaining to an establishment of religion would serve the intention but violate the terms of the first clause of the First Amendment.)

This legislation would restore observance of the Constitution by preventing the federal courts from addressing any issues related to religious establishment (as the First Amendment requires), while leaving them free to deal with cases involving the free exercise of religion by individuals, since these do not fall under constitutional ban on federal legislation. In this regard, the only state actions that come under federal jurisdiction are those involving coercive interference with individual choice in matters of religion. State action that involves no such individual coercion (such as the placement of a Ten Commandments monument in the rotunda of a state Supreme Court building) is outside the purview of the federal courts.

The consequences of congressional failure to act urgently upon this matter are almost too grave for contemplation. State officials will be continually beset by federal court judgments that demand action the U.S. Constitution forbids. Errors of judgment by federal officials seeking to enforce such orders might lead to confrontations between federal officers determined to do what federal judges order and state officers determined to do what the U.S. Constitution requires.

On one side and the other, claims of lawful justification would contribute to intransigence. Problems like this, left for very long without solution, raise the sombre spectre of national dissolution. This, the Congress has the constitutional means and duty to avoid. They should move to do so without delay.

As you know, Faithful Reader, I've advocated the impeachment of several Supreme Court justices, as a means to restrain their delusions of demigodhood. Keyes' approach, I think, is probably much more likely to have even a snowball's chance in Hades.

Lane Core Jr. CIW P — Sat. 08/30/03 04:18:08 PM
Categorized as Political.