Fred Hutchison
December 9, 2003
A personal talk with Alan Keyes
By Fred Hutchison

On Friday evening December 5th, I attended a banquet at which Ambassador Alan Keyes (former presidential candidate and former TV talk show host) was the speaker on the subject of judicial activism. He gave one of the most compelling speeches on political philosophy that I have ever heard. After the banquet, I had the remarkable good fortune to have 10 or 15 minutes of Dr. Keyes’ undivided attention.

Several things that Keyes said in his speech and in our private conversation came as a surprise to me. But he was able to clearly explain his position and to draw me towards his point of view on most points. These points are highlighted below.

Point 1: Authority of Congress

Keyes said that if the Supreme Court steps out of its constitutional jurisdiction, the Congress has constitutional authority to curtail that breach of constitutional boundaries. Congress has authority to regulate the appellate jurisdiction of the Court--as Keyes mentioned in his speech--an authority I was unaware of. But there I find it obscurely tucked away in Article III: "...the Supreme court shall have appellate jurisdiction, both to law and fact, with such restrictions, and under such regulations as the Congress shall make."

Does this mean that Congress may pass a law that the federal courts may not take a case on appeal from the states concerning prayer in schools, abortion, sodomy, the Ten Commandments, and the Pledge of Allegiance? Yes it does!!! Keyes told me that many congressmen and judges are ignorant of this constitutional power. "Many do not read the Constitution any more," Keyes remarked to me.

Keyes warned the crowd that our timid Congress is too politically opportunistic and too intimidated by the Court to curtail judicial power on their own. Only a popular uprising from their constituents will awaken a slumbering legislature to do battle with a court that is seizing arbitrary powers, drunken with its life tenure and its arrogated god-like powers to create law by fiat.

The Senate has impeachment powers of the judiciary. Article I, Section 3: "When sitting for that purpose, they shall be on oath or affirmation." I assume the oath of the senators pertains to upholding the Constitution. If this be so, I assume that the purview of the Senate impeachment hearings of a judge may include whether he went outside the constitutional jurisdiction of his office--which is against the law. Remember, the constitutional restrictictions on judicial power are law. Breaking the law can be an impeachable offense.

Judge Robert Bork gave two clauses for legislative impeachment of judges. Article II, Section 4--"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." Judges are civil officers.

When a judge steps out of his constitutional jurisdiction, and intrudes on another branch, or takes a case that is not within its constitutionally prescribed purview, is that a high crime or a misdemeanor? It can be argued so.

Bork also suggests Article III, Section 1: "The judges, both of the supreme and inferior courts, shall hold their offices on good behavior...." What then is "good behavior?" Is deciding a case on grounds other than the Constitution, the laws of Congress, and the state legislatures, or on legal precedent a case of "bad behavior?" It can be argued so. Is taking a case outside the court’s jurisdiction "bad behavior?" Probably so.

Point 2: Coequal Executive Branch

Ambassador Keyes emphasized to me that the executive branch is constitutionally coequal to the judiciary and can check the judiciary when it oversteps its constitutional boundaries. The president takes an oath to preserve, protect, and defend the Constitution. Keyes said that there may be times when obeying this oath takes precedent over the executive’s duty to enforce the decrees of the judiciary. I asked the ambassador if the president’s oath of office is in the Constitution or separate from the Constitution. He said that the oath is in the Constitution. Sure enough--it is there--tucked in at the end of a lengthy Section 1 of article II: "Before he enter on the execution of his office, he shall take the following oath or affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the constitution of the United States.’"

Ah, this makes all the difference. If the oath were an extralegal tradition, it would have no constitutional or legal force. The oath is a constitutional imperative. It would be contrary to his sworn constitutional duty for a president not to keep the oath. And for the president as a private individual, the oath is a promise made to God with his hand placed on the holy scriptures!

The judicial branch is not the senior branch and the executive is not a junior branch. The president is not the lowly armed bailiff of the court. Our system of checks and balances require at times for the president to check the Supreme Court when it overruns its constitutional boundaries.

My mind went to president Andrew Jackson’s famous comment about the Court--which was dominated by the opposing party at the time. Jackson said, "John Marshall has made his decision. Now let him enforce it." Before I could say this, Keyes seemed to have anticipated my thought. He indicated that no--it is not a passive thing. Only an active intervention against a lawless court would suffice and be in keeping with his oath of office. I presume that he would use the powers of the executive branch to actively prevent the enforcement of an arbitrary and lawless decree of the court. A President Keyes might be something like Chief Justice Roy Moore of the Supreme Court of Alabama who refused to remove the marble Ten Commandments from the rotunda of the court--because he believed that a federal court did not have the jurisdictional authority from the Constitution to tell him to do it. I presume that President Keyes would not only defy lawless edicts, but would compel the entire executive branch to disobey it--in the name of preserving, protecting, and defending the Constitution.

Point 3: Establishment of a Religion

Keyes said in his speech that the federal government is forbidden to speak to the subject of the establishment of a religion by a state government. Referring to the Bill of Rights (the first 10 amendments to the Constitution), the first amendment begins thus: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ..." In common parlance, this law consists of two clauses, "the establishment clause" and "the free exercise clause." Keyes pointed out to me that the majority of the states had established churches at the time the Constitution was signed--but each state established a different denominational church. So as to prevent Congress from establishing a national church of a denomination different from some of the state churches, the Founders included the establishment clause. There shall be no federal established church to interfere with the state established churches. This is why Keyes thinks that a federal judge has no constutional authority to tell the Chief Justice of Alabama to take the Ten Commandments out of the rotunda and why the judge has the legal right to refuse.

My argument has been that the mention of God and a universal moral law is not a religion--certainly not an established church. Keyes argues that there is nothing constitutionally wrong with a state having an established church--unless the state constitution forbids it. The only valid legal recourse against Judge Roy Moore must be found in the Alabama constitution.

Point 4: Free Exercise of Religion

In private conversation, Keyes told me that the president and Congress may do things to encourage the free exercise of religion. I asked him if that contradicted the prohibition by the establishment clause which prohibits the federal government speaking to a state establishment of religion. He said that both the state and the federal government may encourage the free exercise of religion. But only the state may establish a religion. Telling Congress that it cannot prevent the free exercise of religion does imply that Congress cannot encourage the free exercise of religion. I assume "encouragement" at the federal level cannot be compulsion or favoritism of one sect over another.

Therefore, the Court may not speak to whether school children say "under God" in the Pledge of Allegiance. Only the state can address that. Congress is not prohibited from encouraging the free exercise of religion such as declaring Christmas and Thanksgiving as legal holidays. The president may declare a national day of prayer and fasting. A state may have a religious motto, such as Ohio’s motto, "With God all things are possible."

Point 5: Judicial Review

People at my table asked me where the judges got all this arbitrary power. I answered that the principle of judicial review came from the "Marbury vs. Madison" (1803) opinion written by Chief Justice John Marshall. Recalling comments of Judge Bork, I thought that judicial activism has grown out the Marbury opinion.

I asked Keyes about Marbury vs Madison. He surprised me by saying that he likes Marbury because the principle of judicial review it promulgates is perfectly logical. I said to him that I thought judicial activism grew out of Marbury. He surprised me again. "I like judicial activism--if it is constitutional activism." Keyes is an activist kind of guy.

Now I was caught between two poles, Keyes and Bork. I went home and took out the book The Tempting of America: The Political Seduction of the Law, by Robert Bork. I consulted chapter one on Marbury vs. Madison. Come to find out there is no real contradiction between Keyes and Bork. Bork commented on the case itself and also commented on an argument about judicial review that was appended to the case. Bork heavily criticized the case, but praised the appended argument about judicial review.

Bork said that Article III places the kind of case covered in Marbury in the appellate jurisdiction of the Court. This means the Court can take the case if it comes to them on appeal from an inferior court. Other kinds of cases, as defined in Article III, are the original jurisdiction of the Court, which means the Court can take the case on its own--even if it is not on appeal from other courts. Marshall took Marbury as an original jurisdiction--following an agenda of his political party--even though the case is not the kind of case which is authorized for original jurisdiction by Article III. Secretary of State James Madison, one of the parties in the case--and the main author of the constitution--had such contempt for the Marbury case that he refused to respond to Marshall or to appear in court. Bork said that Marbury’s case should have been "dismissed out of hand" by the Supreme Court. Taking the case unlawfully expanded the Court's authority.

In the same chapter, Bork chastises Marshall for other innovations of judicial activism. This chastisement plus Bork’s heavy criticism of Marbury plus the famous Marbury defense of judicial review combined in my mind to produce the notion that the definition of judicial review in Marbury is the source of improper judicial activism. Not so.

Bork says that Marshall’s lengthy argument for judicial review has nothing to do with the eccentric, politically charged Marbury case. Marshall arbitrarily decided to use the case opinion to append and showcase his famous argument for judicial review. We must look at Marshall’s arguments for judicial review--maladroitly stuck in the Marbury case opinion--independently of the issues that Marbury brought to the court.

Marshall argued that the Court’s power to declare laws unconstitutional is derived from the fact that we have a written constitution and that the constitution is law. Article III states: "The judicial power shall extend to all cases, in law and equity, arising under this constitution...." After a passage on the original jurisdiction of the Supreme Court, Article III says, "...the Supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." This constitutional definition of court jurisdiction is an adequate foothold for Marshall to build on to argue for a judicial review that focuses on questions of whether laws are constitutional--the Constitution itself being a set of laws. Unconstitutional laws are "illegal laws."

Point 6: Judicial Sacerdotalism

Keyes says that the Constitution is imbued with the spirit of the Protestant Reformation. Luther rejected Catholic sacerdotalism--a hierarchy of priests. The priests claimed that only they can understand the scriptures. Luther said that every Christian should read the Bible. Keyes said that the Founders wanted to avoid a sacerdotal priesthood of lawyers. Our jurists sit like a Sanhedron of priests pondering lofty abstract principles and interpreting the Constitution in obscure technical ways. Keyes says that the Constitution was written in straightforward practical language so the people can understand it and govern their governors through this knowledge.

Tragically few Americans in this generation have read the Constitution--and leave to the Sanhedron of priestly judges to figure it out. Don’t be surprised if your congressman has not read the Constitution except in snippets when he was in school. Citizens, it is up to you to educate your congressman about what the Constitution says and what your expectations are of him to uphold the Constitution.


A message from Stephen Stone, President, RenewAmerica

I first became acquainted with Fred Hutchison in December 2003, when he contacted me about an article he was interested in writing for RenewAmerica about Alan Keyes. From that auspicious moment until God took him a little more than six years later, we published over 200 of Fred's incomparable essays — usually on some vital aspect of the modern "culture war," written with wit and disarming logic from Fred's brilliant perspective of history, philosophy, science, and scripture.

It was obvious to me from the beginning that Fred was in a class by himself among American conservative writers, and I was honored to feature his insights at RA.

I greatly miss Fred, who died of a brain tumor on August 10, 2010. What a gentle — yet profoundly powerful — voice of reason and godly truth! I'm delighted to see his remarkable essays on the history of conservatism brought together in a masterfully-edited volume by Julie Klusty. Restoring History is a wonderful tribute to a truly great man.

The book is available at Amazon.com.

© Fred Hutchison

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Fred Hutchison

Frederick J. Hutchison attended Miami University in Oxford, Ohio, as an undergraduate, and Cleveland State University to get his Master's degree in business... (more)

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