SATURDAY

FEBRUARY 26

2000

•

Alan Keyes

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•

Standing for the Constitution

Ed. note: Alan Keyes has been writing for

WorldNetDaily since before he announced his run for

the presidency. We are proud to have him as our

regular columnist, but his appearance here does not

constitute an endorsement of his candidacy.

WorldNetDaily also prints occasional columns by

Libertarian Harry Browne, and we welcome column

submissions by presidential candidates of any other

party.

Constitutional illiteracy is becoming something

of a political epidemic these days, and one of

the results is that some of the most important

prudential decisions that face those who hold

high federal office aren't even being considered

by anyone. But if we read the Constitution, and

take it seriously as an instrument by which the

rational animal governs himself, some

surprising possibilities emerge. This week I

want to discuss two of them -- the real meaning

of the First Amendment, and the corresponding

possibilities for a constitutionally literate chief

executive to restore liberty to the American

people despite what the Supreme Court says.

Whenever I give a speech, I emphasize that the

rights Americans cherish are proclaimed by our

Declaration of Independence to be an

endowment from our Creator, God. And one of

the questions I most frequently then get from

the press is how I would, as president, respect

the constitutional doctrine of the separation of

church and state. My answer is always the same

-- I ask to be shown where this doctrine appears

in the Constitution, because I know it doesn't.

Usually, the best they can do is stammer

something about the First Amendment.

But the First Amendment doesn't say anything

about a general separation of church and state. It

reads: "The Congress shall make no law

respecting an establishment of religion, or

prohibiting the free exercise thereof."

Even people who are trying to read that

sentence literally often misunderstand it. It

doesn't just prohibit the Congress from

establishing a national religion. It entirely

forbids the Congress to pass legislation that has

anything to do with the establishment of

religion -- for or against. The First Amendment

tells the Congress that the establishment of

religion is not a concern of the federal

government, and that the federal government

should keep its hands off of the religious

practices of the people and communities of the

United States.

The First Amendment thus leaves the question

of establishment squarely in the hands of the

state and local governments. I marvel at the

tolerance of the American people for groundless

illogic in the decision-making of our judges.

The First Amendment was intended to make

sure that states would not be subject to any

uniform domination by the federal government

on matters of religion. But by perversely

interpreting the 14th Amendment, our judges

have applied it to the states in such a way as to

allow the federal courts to impose a uniform

absence of religion on our people.

How can this be? The First Amendment was

intended to make sure the federal government

couldn't touch the religious practices of the

states, and yet now it is being used as an excuse

to destroy even the most minimal religious

expressions at the state and local level. It is

difficult to resist the conclusion that this

Orwellian revocation of our right to the free

exercise of religion was made possible by a

growing ignorance in our people of both the

letter and the meaning of the Constitution.

Accordingly, a renewed understanding of these

things could give rise to a refreshing "just say

no" campaign to such obviously

unconstitutional judicial usurpations. This is

particularly true in view of the fact that the great

majority of the suppression of the free exercise

of religion in recent years has not actually been

enforced by government, but has been based on

the presumption that has somehow grown up

that certain things just cannot be done. The

judges -- and the liberal elites in media,

academy and government -- have bluffed us

into submission.

But remembering the real nature of our

Constitution offers a remedy for this situation,

particularly if we begin to elect leaders who

understand it. A second surprise emerges if we

recall what is really meant by the "checks and

balances" that we all supposedly understand to

be a key to our constitutional system.

Suppose that the Supreme Court of the United

States decides, in a given, particular case, that

an employee of the federal government cannot

have the Bible on his desk at work because in

the Court's view that somehow interferes with

the separation of church and state -- which is, of

course, a mythological concept anyway, in

terms of the Constitution. So, the Supreme Court

says that, and it says that's the Constitution.

The president of the United States has taken an

oath to uphold, protect, defend, the Constitution

of the United States. That means that he has

sworn to preserve the Constitution in its

integrity. Suppose now that the president

considers that Supreme Court decision and

decides that it has no basis in our Constitution,

our heritage, or our law. Suppose that the

president sees that the Supreme Court decision

is actually violating the Constitution, by

interfering with the free exercise of religion on

the part of his federal employee.

In this circumstance, is the president obligated

to carry out the decision of the Court?

First of all, the Supreme Court's judgment only

applies to that particular case. We always say

that the Supreme Court "struck down" this and

that law. But the only thing that the Supreme

Court can actually do is decide individual,

particular cases. And its judgment only applies

in that case. The reason we say it has struck

down a law or otherwise had a general effect on

our nation's laws is because of a simple and

generally sound line of reasoning. We see that

the Court has made its decision in a particular

case, and that it will presumably rule that way

in every case like it. We presume, in normal

circumstances, that the judgment of the

Supreme Court is the best legal judgment we

will get on the question. And we presume that

lower courts will follow the precedent of the

Supreme Court.

But just as the Court is obliged to interpret the

Constitution in a particular case because that is

its job, so the president is obliged to interpret

the Constitution in order to do his job, which is

to carry out the law in accord with the

Constitution. And the branches of the federal

government are coequal. So if the president

disagrees with the Court, the Court does not

automatically get its way.

I believe that in respect for the Court's authority,

the president must give the Court its way in the

particular case it has decided. But the president

does have a general power of pardon. In the

example we are considering, he could pardon

the employee who has been convicted of taking

a Bible to work.

He could also accompany his pardon with a

general statement that he will pardon every

employee in a similar situation during his

tenure as president, because the law forbidding

Bibles at work is unconstitutional. What

happens then to the Court's judgment? During

his tenure as president, it is of no consequence --

it is null and void.

Wouldn't this provoke the dreaded

"Constitutional Crisis?" Well, that depends on

what is meant by crisis. What it would do is

require that the people holding the various high

offices in the federal government exert

themselves and the powers of their respective

offices in a political struggle to determine which

account of the Constitution would prevail. If the

Congress thinks that the president is

irresponsible and lawless, disobeying the Court

in a matter where the Constitution is clear, it

must impeach him and remove him from office.

That's the way the Constitution is supposed to

work. Presidents aren't supposed to roll over

and play dead when our judges start to act like

tyrants. They are supposed to defend the

integrity of the Constitution, and the liberties of

our people. The Congress isn't supposed to roll

over and play dead when the president acts like

a tyrant. They are supposed to impeach him and

kick him out of office. And the resulting

interplay of men, argument, and the powers of

office, is intended to be the occasion for the

people's informed judgment eventually to

prevail.

We must start to elect people to these offices

who will defend our liberties, defend the

integrity of the Constitution, and take on the full

responsibilities they are supposed to exercise as

the stewards of that Constitution. I believe that

both president and Congress, in recent decades,

have failed us in this regard. And in doing so

they have unleashed a judicial tyranny that is

destroying the soundness, moral and otherwise,

of our land.

It is time to fight back. We can do so by making

clear that through our representatives we are

going to remind the Court that they do not have

the supreme authority to dictate to the entire

society in vital matters concerning

Constitutional integrity and liberty.

A renewed exercise of our Constitutional

sovereignty as a people is vital. At stake is not

merely prayer in schools and Bibles on desks.

This struggle is already becoming a matter of

the integrity of our most vital institutions. There

are state courts right now that are poised to

require us to accept homosexual marriage

throughout the country. An assault is beginning

on the elemental institution of our entire

civilization. Are we to believe that we are

defenseless against this assault, simply because

despotic judges say so?

The Founders were wiser than this. They wrote

a Constitution that put within the power of the

representatives of the people the capacity to act

on behalf of the people, so that each branch is

given the authority necessary to check and

restrain the tyrannical impulses of the others.

That is what we will need in order to make sure

that in these cases the courts do not destroy our

national probity, nor undermine the virtues of

our constitutional order.

In our votes, in our actions, and in the

expectations we form of our elected officials, we

must act again as free men. We must be

confident in our own judgment when it comes

to the most important things, and then willing to

insist that the government that is our instrument

conform to that judgment. We need to read the

Constitution, and insist that our leaders do so as

well -- in every branch of government. And then

we need to have the stomach to support leaders

who are prepared to struggle within the

government to return it to constitutional

integrity.

Alan L. Keyes, currently running for the GOP

presidential nomination, was U.S. ambassador to the

United Nations during the Reagan administration.

The author of two books, "Our Character, Our

Future" and "Masters of the Dream," Keyes is

recognized as a leader in the conservative movement

and one of today's most demanded orators.

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