December 9, 2003
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
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
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
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
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
My argument has been that the mention of God and a universal moral law is not a religion
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
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
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
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
Point 6: Judicial Sacerdotalism
Keyes says that the Constitution is imbued with the spirit of the Protestant Reformation. Luther rejected Catholic sacerdotalism
Tragically few Americans in this generation have read the Constitution
Fred Hutchison, a Christian layman, has had a variety of opportunities to teach, ranging from pulpit invitations to being a banquet speaker. He has written hundreds of essays about religion, politics, history, philosophy, and science, and is the author and director of short dramas and comedies.
He has an MBA and a CPA and is retired. During his career, he was a technical specialist in governmental accounting and auditing, and he wrote technical literature, did research, taught classes, prepared training seminars, and performed quality review work.
Fred is motivated by the pursuit of truth, and is fascinated by how we can abstract information from many fields to assemble a framework of ideas with which to understand the world. However, he believes that scriptural truth is the essential foundation for wisdom and knowledge and an indispensable antidote to self-deception. His book The Stages of Sanctification is the product of twenty years of intermittent study and meditation on the subject.
Dr. Keyes' next speaking engagement will be Friday, Dec. 12. Click here for more information.
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