Cultural Ramifications of Recent Court Decisions
by Alan Keyes, October 14, 2003
I think that we are in the midst of both a terrible and decisive crisis for this country. And also, probably a great moment of opportunity to turn things around. I waver day to day as to whether or not that opportunity shall in fact be capitalized upon. I don’t know. I don’t waver at all, however, about the nature of the crisis.
I think this republic is very close to ending. I think every sign is that all of the key elements that go into defining our system of self-government are eroded and being destroyed, including, of course, our constitution itself. And as that process completes itself, we’ll linger for a while in the afterglow of the processes and the forms, but the substance will be gone as it was for quite a long time in the Roman Republic before the historians noticed that the republic was dead and that it had been replaced by something else. This is a process we are going through now. We are still in the midst of the time I think when we could stop it, but I don’t know whether we will. God seems to [have] determined, however, both to warn us of the danger, as I deeply believe He did on September 11th, and to provide us with opportunities to turn things around. But in order to achieve those results, we’re going to have to do some fundamental restructuring, I believe, of our own habits and inclinations. Not just as Americans. No, I’m speaking specifically now of us as conservatives and especially those of you who are conservatives of moral concern.
Now that’s who I am. I call myself a moral conservative because I base my whole approach to America’s public life on a single premise: that there are no issues, no questions more important in our life than those that involve the moral principles and moral character of our people. I believe that at bottom, every other kind of problem that we have, particularly those that have to do with the fiscal irresponsibility of government, with the breakdown of the family, even, even, things that have to do with the overburdened health system and the approach that we take to it, all those problems can be traced in the end to the breakdown of that self-disciplined character, which is absolutely essential if liberty is to survive.
It is going. It is going. It will soon, sadly, be gone, unless, unless, we work consistently as a matter of top priority to deal with those things that are corrupting us. Those things that are corrupting us in our public life, those things that are corrupting us in our religious life, those things that are corrupting us in our private life, these things must be matters of first concern for us if we wish to survive as a free people. And I must tell you, if someone were to say, Alan, do you think they are? Even in this room, do you think they are? I’d have to tell you I’m not sure. I know in America, the question is answered, “No, they are not yet.” In this room I would assume that I could speak comfortably and confidently, “Yes, they are”, but I don’t know for sure. Okay? But I think some tests are coming down that will decisively determine just how serious we are, because the greatest test is the moment of opportunity.
And in the course of the last several weeks, thanks to the integrity and courage of one man, that is often the case in America, a tremendous moment for crystallizing something that deeply relates to the fundamental, the core root of this problem of corruption has occurred. And I am referring, of course, to the events that took place in Alabama, when the chief justice of the state, Roy Moore, said “no” to a federal judge who ordered him to remove the Ten Commandments from the supreme judicial building in Alabama. Now some folks, including some folks who are friends of mine, and whose conservative principles I deeply respect, started pouncing on the judge as if he had broken some law, and so forth and so on. And I scratched my head in dismay, because for years I had been watching, not as judges, and county commissioners, and school boards broke the law, but as time and time and time again the federal judges in this country broke the law, ignored the Constitution with impunity, and nobody said a word. Nobody did a thing, nobody bothered to stand for a moment against their abuse. Even though, even though, in one area of particular and grave import they were abusing the document in a way that is clear and obvious and not hard to establish.
The establishment clause, the famous clause in the Constitution, cited by the ACLU and everybody else to tell us that somehow or another, especially if you do a little shenanigans with the 14th amendment, the federal judges get to dictate what can take place with respect to religion at every level in this nation’s life. Throughout my adult life, since I first came to appreciate the real meaning of those words, I have marveled at the fact that they get away with this because it’s one of those cases (it’s not a case even like Roe v. Wade where they had to make something up). No, this is a case where the Constitution reads one way and what they’re doing simply violates what it says, and we let them get away with it.
“Congress shall make no law respecting an establishment of religion.” Now somebody here must realize that hard as we try, those words are not difficult to understand. No, they’re not. “Congress shall make no law.” The only possible difficulty might be “respect”, but it’s not hard, just go to the dictionary and look it up. What does it mean? With regard to concern and having to do with, dealing with. Why is it that over the course of the years, we have allowed the Left in this country to get away with arguing as if that read, “Congress shall make no law establishing a religion”? We even fall into this trap and talk as if the establishment clause has something to do with the substantive issue of establishment. And it does not. All the establishment clause does, is look at the Congress (read “the federal government”) because last time I looked, if “Congress can’t make a law”, the federal government can’t lawfully act. And so, “Congress shall make no law that has anything to do with, that concerns, that deals with the establishment of religion.”
Now why would the writers of the Constitution have said that? I think it’s pretty obvious. This was a clear sign. It’s like one of those signs in New York that people used to put near their parking spaces, “Don’t even think about parking here.” The Founders simply said with the establishment clause, to the national government in very loud and clear terms, to the congress, to the federal government, “Don’t even think about this issue. None of your business.” That’s what they said. In the clearest possible way. And on top of every thing else, just in case you are of a mind to try to say, “Well, lo, there is the Constitution itself. The judges can get their authority from that. Yes, they can, but there’s nothing else in the Constitution about this. Whoa! That means that the only thing that’s said about this issue is that Congress (read “the federal government”) can’t touch it. So whether you look at the federal laws or you look at the Constitution, there’s nothing in it that could remotely provide a basis for federal intervention by any branch whatsoever.
We do remember, don’t we, that the Constitution governs all the branches? That no branch can deal with this issue at the national level. Now, here’s the clincher. Also very simple. This is not hard to understand. In the 10th amendment to the Constitution, it says very clearly that all those powers that the Constitution has not delegated to the national government, to the United States, as it says in that amendment, all those powers not delegated to the United States by the Constitution nor prohibited by it to the States are what? Are reserved, reserved. That is to say, reserved. Last time I looked if I had a reservation at a hotel that means my name’s on it. It’s mine. Somebody else shows up to claim that room, they can’t have it, because it’s reserved for me. All those powers not delegated to the United States, nor prohibited to the states are reserved to the states, respectively, or to the people.
Now, let’s do simple, step by step logic here. The Constitution not only does not give the federal government any power to address issues of establishment, it explicitly forbids it to do so. And nowhere in the document is there a word that could be constructed as in any way prohibiting the states in this regard. And in fact, the history of the country bears this out because most of the states at the time that the amendment was passed still had established churches of one kind or another. They were not only not touched, but they were protected by the force of this amendment and those famous words about the wall of separation, in that letter Thomas Jefferson was explaining that very fact. Federal government can’t touch you. In his own inaugural address he said the same thing: “I left these matters where the Constitution found them, in the hands of the states and the people.” That’s what he said.
Now, wait, see. Before we applaud ourselves for seeing the obvious, I think we need to hesitate for a minute, y’all, because I stand here in the year (what is this?) 2003, right? Somewhere around 1940, I believe it was, Cantwell v. Connecticut, citing Cantwell, the courts assented for the first time that by some shenanigans to the 14th amendment, they got the rights to apply the first amendment to the states. What is that? There might be some people that want to get into a [indiscernible word]. Do they get it by the first amendment? I don’t want to. Let’s take it for granted. Yes, the 14th amendment enjoins upon the states the Bill of Rights. I’ll grant them that because the Left has spent all these years building up the force and power of that argument. I’ll take it. Okay? But then we come upon this fact that we just noticed. What does the Bill of Rights do? The Bill of Rights reserves to the states respectively, and to the people, the exclusive, the reserved right, to address issues of establishment. That’s what it does. So, if the 14th amendment does anything, it means that state officials, like, for example, Chief Justice Roy Moore, they are not only obliged by their oath under their state constitution. He is not only as an elected official obliged by the platform he presented to the people of Alabama, he is actually obliged by the Constitution of the United States to stand fast in defense of that right. Granted to the people of the states by the Bill of Rights. Clear in the Constitution whether you take the Right’s argument, the Left’s argument, all you’ve got to do is look at the words.
Now, now the reason I go through this with such vehemence, aside from the fact that some folks have been denying the obvious, and some folks ought to know better, in my opinion, and ought to think it through a little longer,
We’ve got to think through what this means. And I will say it here, given our rules, because I haven’t said it publicly. What does it mean? What it means, y’all, [is] that the federal government, courts in particular, have no authority to address issues of establishment. Let that sink in for a minute. They have no constitutional authority to address this issue. It’s not a question of whether their judgements are right or wrong. People [who] get into the business of arguing with federal judges over whether their interpretation of establishment issues is right or wrong are doing something the constitution doesn’t require. You don’t have to argue with the judge about whether he was right or wrong in his interpretation, because if he’s passed the judgement in any given case that has as its basis the establishment clause, then he is what? He is acting as if there is a law somehow at the federal level respecting an establishment of religion, and that can’t be.
People have called, and I’ve talked to some, and the other day I was on the phone with some folks from the county jury. Said they’d gotten a letter from the ACLU saying that they were in violation. I said, “In violation of what? Did they cite the law that you’re in violation of?” “Well, no, they just said, ‘You’re in violation.’” There’s a good reason they didn’t cite a law because there can’t be a law. And there’s also a good reason that the y couldn’t cite the Constitution because there’s nothing in there about this. They could, I suppose, cite some judge’s opinion, but the last time I looked, even if you strictly go by the lawyers’ usual arguments, the judge’s opinion is only good for that particular case. Now, it may be that others looking at it and thinking that it might go this way and that will give up and not waste time doing this with other cases, but judges don’t make laws. They only make decisions in particular cases. And if they make those decisions without any basis in law or constitution, then what they do is their own personal whim. It is not law. It is not judgement. And it is not lawful.
When are we going to wake up? This Constitution of the United States, which I deeply love, and respect, did not establish a dictatorship of the judges. It did not give them the right without foundation in law or constitution. Why is this important? Because the laws are passed by legislatures that represent the people. Because the constitutions are made by conventions and then ratified by votes directly by the people. And because no law, no government can be legitimate in this country unless it is based upon the consent of the people. If we allow a judicial dictatorship under the color of law, then what we are actually doing now is abandoning republican self-government (small “r”).
Some of you might say, “well that’s fine. There goes Alan again with his philosophic abstractions and all. No, I beg to differ because Article IV. Section IV. Of the Constitution says that “the United States shall guarantee to each state of the union a republican form of government.” If the judges act in such a way as to substitute their dictatorship for government based upon the consent of the people, then they have not simply abused the Constitution, they have fundamentally altered the form of government. They have destroyed it and in doing so, they have deprived the states of that which the Constitution clearly says the United States must guarantee to them, a republican form of government.
Even if the issue that we’re involved here were not the issue of the people’s piety, I would have to tell you, that unless we are really short-sighted, we have got to know that we are looking here at an issue that eventually becomes, and I will say it clearly in this one, issues like this eventually become the cause and nub of civil war. Are you listening to me? Do we love this country? I hope so. Do we ever want to see it divided by such a conflict again? I hope not. If we are careless, however, if we allow the situation so to deteriorate that there is no recourse left from the abuses of power under the color of law, don’t believe that this people shall forever remain docile, especially not when that which they are being deprived of is the right to honor and respect God according to their will. We are playing with devastating fire here.
Well, of course, you could assume we’re not, if you assume that that piety is not going to be very effective, that the liberals have done their job and that through the corruption of the movies and the media and the institutions of higher education, and so forth and so on, they have rebuked the piety of our people, made them ashamed of it, and otherwise undermined any will they might have to act upon it. I would say you are far from right if you think that. Based on the experience I have seen thus far, it is just the beginning of things. The reaction to what Judge Moore has done has been a reaction that comes from somewhere deep in the heart of our people, and it’s a heart that understands that on the day they drove God out of the schools, on the day that they drove God out of the law, on the day that they drove God out of our public precincts, out of our prayers at football games, out of our lives as citizens, that was the day that inaugurated all the decline, all the filth, all the corruption that has decade by decade been undermining the strength and character of this great people. We understand this; we’ve written books about it; we know it to be true; it’s staring us in the face.
But something else right now is staring us in the face—an opportunity to turn it around, to do so without war, without conflict, with nothing needed except something that over the years we’ve proven good at when we’re committed. And that is joining all together, organizing folks at the grass roots in order to put tremendous pressure on the Congress of the United States to do what is right.
Now why do I say the Congress? It’s easy ‘cause they have the solution. The wonderful thing about our Founders was they didn’t leave us a Constitutional problem without offering to us a vehicle for its solution. Do you think they were stupid enough to believe that we could survive as a free people if we handed off to the judges the unbridled license to interpret the Constitution any way they pleased, to make it up any way they liked, any day of the week according to their whim? They weren’t that stupid, and they wrote about it. Jefferson, much cited in this context, was one of the key people to warn us that if we allowed the judges to substitute their personal whims for a strict observance of law and constitution, we would get a dictatorship of the judges and that this was the end of succoring.
No, they didn’t intend it and they left us with recourse right there in the article that establishes the judiciary. They leave it in the hands of Congress to regulate the jurisdiction of the courts. It’s very simple. And in this particular issue, let me say, it’s simpler than it might otherwise be, because this isn’t a matter where the congress isn’t going to have to stand there and say, “We differ with your interpretation.” No, it’s not. It’s going to be a matter where the congress stands, not in it’s own defense, not in defense of its own prerogatives but in defense of the constitutional right of the people, looks at the Court and says, “Enough of this violation.” “In order to secure observance of the first amendment to the Constitution according to its terms, we the Congress, accept from the jurisdiction of the federal courts at all levels, all those matters which by the conjoint effect of the first and tenth amendments are reserved to the states respectively and to the people.” Clear. Simple. They could tack it on to an appropriations bill. It won’t even require a big vote because in fact, it’s a housekeeping detail. It’s implementing legislation. In this case, implementing the first amendment according to its meaning and terms. And they have a perfect right to do that, and they would do it in those words in a way that didn’t raise any question about religion either, because you noticed, I didn’t say a word about religion. I said every word about the Constitution and about the need for the judges to respect it according to its terms. And with that simple act, they would clear away the pretensions of the judiciary in this regard. Of course, they would still retain the right, if somebody felt they were being abused and coerced, they could step in. But the simple fact that the people of a state decide to honor God in a way that coerces no one, but that simply expresses the piety of their heart, this piety would not longer be subject to the abuse of the courts, no longer be harassed by the Gestapo tactics of the ACLU. Once again, our people could feel not shame, but pride in the fact that they bring a faith in the Creator from whom they derive their rights into their thought and action as citizens.
I could actually tell you, I’ve seen in my life no opportunity I think is more critical than this one to strike a counter offensive blow to what has been decades of abuse by the Left. We can make a difference here, a tremendous one. Do it simply. All we have to do is unite, and unite on the right terms. Unite in defense of the Constitution. I say that particularly because, you notice, I am not making an argument here as to the substance of the issue of what is or is not appropriate in politics with respect to religion. Why am I not making that argument? Because I don’t think that’s what is at stake here. If this were a state issue, then, you know, in our states, we should argue with each other over that. We’ll win most of the time, too. This is a good thing to know. Oh, we’d loose in some states. On, we’d loose in some states like Vermont because they probably have liberals. We’d loose in some states like California because there’d be a bunch of phony conservatives talking all the conservatives into supporting some liberal. And you notice, that doesn’t have to happen. If that’s stopped, we wouldn’t loose in California. And hopefully, we won’t loose, with a little...well, you know what I mean. That’ll be another case where if one man has the courage of his convictions, surprise can happen. But leave that aside.
Well, this is a tremendous opportunity. It’s a tremendous opportunity to do a couple of things. It not only clears the way so that the piety of our people can feel confident, and that confidence, by the way, is essential to battles we are fighting. I hope we realize this. The Federal Marriage Amendment, the fight against the effort by homosexuals to legitimize homosexual marriage, and all of these kinds of things, do you realize, I hope you realize, the victory or defeat in those battles depends on this question:
Is it proper and appropriate at any level of government to apply the consequences of religious conscience and of conviction to our walk? Is it proper? See, if the answer to that question is “No”, then we are going to loose all these battles. That’s why the ACLU is pressing hard on the Ten Commandments point. It’s because it symbolically represents the legitimacy of applying the consequences of religious conscience to the decisions of citizenship. If they win the battle, they will have declared that that’s illegitimate. And for a while, we’ll think we’re doing okay, but then the fact that they have prejudiced the background, prejudiced the heart, shamed the heart, will ultimately overtake us and we’ll lose, because Americans really don’t think that you should coerce people in certain ways. It’s got to be done on a basis that is justified in some sense, either by the needs of security or by moral requirements.
Now, if we loose the sense that at some level in our lives it is right to apply these moral convictions, we are going to be in trouble. The Founders understood that if you try to do this at the national level, it could lead to terrible conflicts and they saw those terrible conflicts in Europe. As much as we love each other we do tend to gravitate toward different denominations and beliefs and backgrounds and that comes to the details of our carrying out of our piety. So what did they do? They made it clear that the states would have the right to decide how far to go. In this respect, it would be up to the people of the states through their state institutions, and second, those issues intimately connected with that decision would be left at the state level.
Why has it never occurred to us to think through the logic of our situation? Why was marriage left at the state level? It was left at the state level because it’s hard to legislate about marriage apart from religious conscience. That’s why it was left at the state level. It’s hard to legislate about sexual behavior apart from religious conscience. That’s why it was left at the state level. It was left at the level where they also left the power of the people to express their piety in and through the law. And in so far as we accept to any degree the Left Wing view that it is simply inappropriate to apply through law the effects of religious conscience, we loose the battle before it begins. This is not right and it is not constitutional.
And so, if we reassert the right, we will strengthen our hand in all these battles. We will reclaim that prerogative which ought to belong to the people. And in the process, we will also, at a single stroke, just by the by, ‘cause if you can invoke the establishment clause. Go back and read the school prayer decision. What clause did it invoke in order to achieve its pernicious results? There are a lot of things they’ve already done which will be undone now. I didn’t think I’d ever see this in my life. But I say gratefully to Roy Moore, and I say gratefully to all those who may be like him, that they are opening the door for a great moment of restoration in our nation’s life.
A final word. A final word. And this as to practicality, see, ‘cause I think that restoration is going to require more than hand-clapping and piecemeal conviction. This is one of those things where we need to find a way organizationally to devise a strategy to coordinate every effort in order to make sure that the maximum pressure in a coordinated way is placed on the Congress of the United States to do the right thing.
First step in that, in my opinion, is we must proliferate “Roy Moores” all over America. We must have “Roy Moores” in the county courthouses, we must have “Roy Moores” on the boards of education, we must have “Roy Moores”, if we can find them, in the governors’ houses, we must have American citizens standing up on the ground of the Constitution, saying “no” to the unlawful judgements of abusive courts. And we must do so without trepidation, without the “Oh, we’re destroying law and order.” No, my friends, if they tear down the supreme law of this land, they have destroyed the very foundation of all law, they have destroyed the meaning of order in America. That is what they have done for decades.
Rallying around these brave individuals, we must then organize a grass roots movement. Literally. In state after state there must be rallies in their support, demanding that the representatives of the people defend the right of the people to honor God according to the Constitution of the United States.
And then we must finally, if we have the where-with-all (with regards to that, I think we must try) to bring that to a head. This ought to be one of those issues. People marched for civil rights and they marched for workers’ rights, and they marched for all sorts of things. You don’t think it would be possible to gather the largest crowd ever seen in the history of this nation’s life to come together in Washington, D. C. in order to demand and defend the right of the people to honor the God from whom we derive our rights. This is impossible? It is not impossible. It’s possible and it’s necessary. And in the midst of it, I believe, we would by unshackling the piety of our people from the shame with which it has been burdened by the tactics of our opponents, we would also create that environment that is so necessary in order for right decisions to be made about marriage, about sexuality, about all the issues that flow from and deal with the moral character of our people.
It’s a tremendous challenge, but I think it is a God-given moment of opportunity, and it has its risks. But when did anything that helped to found or preserve this country not have its risks? If we have reached the day when the people will not take risks in defense of their most fundamental liberty, then we have reached the day, sadly, as I said when that liberty is at an end.
There is a reason they put the right to honor God first in the Bill of Rights. There was a reason that they protected the power of the people to make this decision from the encroaching domination of dictatorial federal judges and officials. It is because they know that a people that claims its rights and dignity from the transcendent Creator God will not keep them when they become too ashamed to call out as citizens upon His name.
We have come close to that moment in America, but we can turn things around. If we are willing to deal with this issue as a matter of priority and to join together as never before to prove that we give primacy to the moral things by giving primacy to that cause which in the end is the foundation of all our moral commitment. Without God, there is no liberty. Without faith, there can be no courage to defend that liberty. Let us restore now as citizens the right to honor Him. That is in the end the expression of our faith, and in confirming that faith, let us act with courage, to assert that right that in the end will be the basis for restoring true federalism and all our liberties. God bless you.