Alan Keyes
Supreme Judge or Supreme Court?
By Alan Keyes
April 1, 2013

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, of 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" (Federalist #78).

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.
To see more articles by Dr. Keyes, visit his blog at and his commentary at and

© Alan Keyes


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Alan Keyes

Dr. Keyes holds the distinction of being the only person ever to run against Barack Obama in a truly contested election – featuring authentic moral conservatism vs. progressive liberalism – when they challenged each other for the open U.S. Senate seat from Illinois in 2004... (more)


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