August 23, 2003

TOM FITTON, HOST: Now on the line, [we're] honored to be joined once again by Ambassador Alan Keyes. He was an appointee of President Reagan, served too long in the State Department, ran for president, [is a] successful commentator, author, speaker, and now runs, in addition to his other work, the Declaration Foundation. Ambassador Keyes, welcome back to the Judicial Watch Report.

KEYES: Well, I'm glad to be here. Thank you.

FITTON: You must be tired.

KEYES: Well, there have been pretty busy and hectic days here in Montgomery, Alabama, but I think we're all very uplifted by events here, by the inspiration of Judge Roy Moore, by the people who are coming from all over the country to support his strong stand of integrity. And I think that, overall, we're tired, but I think we know we're here doing the right thing.

FITTON: It's a good tired. Well, give us the latest. What is the status? Where is the monument to the Ten Commandments now? And the [Washington] Post is reporting Judge Moore has been suspended with pay.

KEYES: That's right. Yesterday, this judicial commission in Alabama suspended the chief justice, and the monument is, at the moment, still in place. I'm not sure what it is that they plan to do with it. The eight associate justices overruled Judge Moore, after an opinion from Bill Pryor--not, I think, a strictly accurate opinion--in which he claims that they had the right to do so.

But I think that the interesting thing is that I'm noticing that people around the country, as a result of the clarification of the issue that is resulting from this dramatic illustration of the abuse of federal power, I think people around the country are actually starting to wake up to the real issue that's at stake here, and as a result, we're actually at a watershed. I think forty and more years, fifty years, really, of abuse by the federal courts--we could see the beginning of an end of that abuse as a result of what is happening in Montgomery.

FITTON: Well, what did the federal court rule?

KEYES: Well, see, I want to start there, because I don't care what the federal court ruled, and neither should anybody else.

The real issue at the heart of the matter here is whether the federal courts have any authority to be dealing with the issue of how the states and the state governments express the religious inclinations of their people. The Constitution--this is one of those areas where it was very, very clear: "Congress shall make no law respecting an establishment of religion." And those words are so plain that it amazes me that, all these years, we've allowed people to get away with saying that the First Amendment says there can't be religious establishment. That's a lie. The words say that Congress can't touch the issue, that there therefore can be no lawful federal authority to address the issue, and by the Tenth Amendment, any power that is not given to the United States, or prohibited to the states, is left to the states respectively, or to the people. Reserved, it says.

That means the power to deal with issues of establishment, having been forbidden to the federal government, is left in the hands of the state governments. The first clause of the First Amendment does not address an individual right. It actually means that the right of the people to deal with these issues in their states is to be immune from domination and interference by federal authority. That is, in fact, what is done.

So, even if you are talking, as some do, about incorporation--right?--where you apply the Bill of Rights to the states, that first clause of the First Amendment is about protecting the right of the people, in their respective states, to deal with this issue, immune from federal interference and domination. That is one of the privileges and immunities of the citizens of the United States, to be immune from federal domination on issues having to do with religious affairs and beliefs, and to deal with that by constitutional means at the state level.

So, the obligation of the officials in Alabama is, in fact, to stand up in defense of the right of the people. And it's not just an obligation under the Alabama Constitution, it is, by the Fourteenth Amendment, an obligation under the federal Constitution to resist federal encroachment.

Other people want to argue that "well, this for the courts to decide." That's also insane. That's why the courts are irrelevant. The courts can't decide the limits of their own power. The Founders weren't stupid. They didn't make the Supreme Court the judge of its own jurisdiction in the final analysis. They were smarter than that--because if you give somebody the right to judge the boundaries of his own power, he'll take all the power.

The article that establishes the Supreme Court makes it very clear: the appellate jurisdiction of the Supreme Court is given to the Supreme Court (appellate jurisdiction in matters arising out of the Constitution), subject to such exceptions and regulations as the Congress shall make. The ultimate arbiter of the power of the courts, the determination of jurisdiction, is not the Supreme Court, it's the representatives of the people in Congress assembled. The people of this country get to limit the judges. We're not under their dictatorship.

FITTON: 1-800-510-8255. You're listening to the great Alan Keyes. You can see why he is a leader of the conservative . . . well, a leader. There are so few leaders out there, Alan, aren't there?

KEYES: Well, I sometimes think people these days either don't understand or don't think things through, or maybe they just don't go back and look anymore at the clear, plain language of our liberty--but it's there, and we can read it. The other thing that I find irritating is . . .

FITTON: You know, and I hear you talk, and I, by and large, agree with you. But as you said, it's--with all due respect, you brilliantly convey it, but the argument wouldn't strain a fifth grader's intellect.

KEYES: No, it wouldn't. It's a very easy thing to see. The language is plain, the logic is clear. I think the federal judges have gotten away with this unlawful usurpation because people don't bother to look at the Constitution, don't bother to think it through. They act as if this is the business of lawyers and judges, when in point of fact, the Congress leaves this question of jurisdiction in the hands of the representatives of the people. It's our business to determine what will be the limits of the power and jurisdiction of the federal bench, and in the Constitution, they are strictly enjoined from touching these issues of religion that they've abusively been trying to dictate for the last forty years.

And I think what Roy Moore has done is that he has established, by being the highest justice in Alabama, he's finally drawn attention to the issue at the highest level, where state authority is clearly embodied, and he has said no, which he has the perfect, not only right, but obligation to do. And instead, the judges and justices--what are they? They're trying to say that these issues should be decided by a handful of unelected judges and justices sitting on the federal bench. Last time I looked, when decisions are made by the unelected few, that's oligarchy. Our system of government is supposed to be republican (small "r"): government that's based ultimately on a constitutional mechanism that expresses the will of the people as a whole. It's not an oligarchy, it's a republican form of government.

Article 4, Section 4, of the Constitution places upon the federal government the obligation to guarantee to the states a republican form of government. With respect to this matter, of the right of the people in the states on religious matters, these federal judges have, in fact, been violating Article 4, Section 4. They're depriving the people of the states of a republican form of government with respect to this issue, imposing an unlawful and unconstitutional oligarchy that allows a handful of people to dictate to the whole country.

And finally, this point . . .

FITTON: Let me . . . Go ahead, finish your point.

KEYES: No, I just want to say very quickly. The end result, sadly, because of the logic . . . I think the reason the Founders did it this way is that they realized, "Wait a minute. If you simply say that this can't be done, there can be no expression of religion, that in effect establishes in the public arena a uniform religion or attitude." Not religion, but a uniform attitude towards religion of agnosticism or atheism.

FITTON: Or outright hostility.

KEYES: Well, not hostility. Don't even pause at hostility. It establishes atheism, which is to say, the public realm is without any reference to God, without any acknowledgment of the presence of God--atheism in the literal sense--so that by not making a decision, you make a decision. And they knew that's not right.

And so, what they did was say, "At the national level, no uniform imposition, but since a decision must be made, and it's either got to be made by the people or not by them. Since this is a republican form of government, we'll put it in the hands of the people." And so, they respected that republican principle, and left it to the people of the states, so that we could get a balance--a balance that wouldn't push us toward atheism, but that would also respect the pluralism of beliefs, the diversity of beliefs, among the people of the United States, so that diversity can be reflected, geographically, by leaving the decision in the hands of the states.

It was brilliant! It's a proper balance. And they added to that, of course, a strict injunction by the Fourteenth Amendment at all levels of government to respect the individual rights of conscience, so that at no level can government force you to believe as the state believes, or to accept things as the state dictates.

FITTON: [This has been] Ambassador Alan Keyes you've been listening to, talking about the debate, the controversy, the court fight in Alabama over whether or not the state can display the Ten Commandments on public property.

[BREAK]

FITTON: Tom Fitton here with the great Alan Keyes, talking about the controversy, whether the Ten Commandments can be displayed on public property--specifically, the state courthouse in Alabama. Chief Justice of the Alabama court there, Roy Moore, says yes. Some federal judges have said no, and even his fellow justices on the court there overruled him, and decided to comply with the judicial edict that the monument go--to where, I don't know. I guess to a private area of the courthouse.

Alan, just to play devil's advocate--maybe quite literally, in this respect. Like I said, I do agree with your analysis of the jurisdiction issues here, but we have a system, and the way you comply with the system and the way you change the system is through legislative action and constitutional amendments, elections of presidents, and appointments, and elections of senators and/or state representatives that understand the Constitution as you've described it, accurately, and will govern accordingly. In the meantime, we've got to comply with the law, and then when the judges rule against . . .

KEYES: There is no law here, though. How can you say--what law are you talking about?

FITTON: Well, there's a federal judge saying . . .

KEYES: Yes, there's a federal judge, but I . . . No. Judges do not dictate. Answer the question. What law are you talking about?

FITTON: Well, I agree the judge has no basis, morally or constitutionally.

KEYES: Well, then what are you saying, then? I don't understand it, though.

FITTON: The way to deal with that is to either appeal the decision according to the procedures allowed for, or suffer the consequences.

KEYES: No, but I don't understand what we're talking about here . . .

FITTON: OK, go ahead.

KEYES: Because everybody says you "obey the law." In and of himself, in and of themselves, the people who sit on federal courts are not "the law." OK?

I was thinking about this. I was talking to some folks here in the governor's office the other day, trying to get them to focus on the reality. If judges--it could be the Supreme Court of the state of Alabama, it could be the Supreme Court of the United States, right?

FITTON: Um, hmm.

KEYES: If they issued an order on the premises of the Supreme Court building, and told the employees who guard that building to shoot someone--right?--to shoot an unarmed person, would that be the law?

FITTON: Oh, obviously not.

KEYES: So, even if they voted on it, and all agreed on it according to the forms of law, and issued a Supreme Court decision saying, "That person must die," without any trial or anything else, and any charge and so forth, would anyone be obliged to obey that order?

FITTON: Hey, I agree. They wouldn't.

KEYES: Now, thinking that through, then, it means that one is not, per se, obliged to obey the orders of courts--any more, by the way, than, for instance, in the military . . .

FITTON: I agree. I agree.

KEYES: In the military, are soldiers obliged to obey every order?

FITTON: That's correct. They are not. In fact, they are required not to.

KEYES: They are required--that's what I was getting to. They are required not obey unlawful orders, to refuse unlawful orders.

That means that the key here is, "Is the order unlawful or lawful?" And second, of course, there's the good one, "Well, who's to make that judgment?"

FITTON: Right.

KEYES: Well, obviously, in the case of the military and other things, when you're the one who, in conscience, has to execute it, at the end of the day (this was the Nuremberg principle), you are responsible, personally, for how you keep your oath, and how you respect the law--and therefore, you must refuse unlawful orders.

The chief justice of the state of Alabama is bound by an oath. He is bound by an oath under the state constitution, he is bound by an oath to respect the laws and the constitution of the state of Alabama, he is personally bound by his obligations to the people of the state, and as I just explained, the correct reading of the Constitution means that, under the Fourteenth Amendment, he is bound by the federal Constitution to respect the right of the people.

Now, if a federal judge were to give him an order to violate the civil rights of an individual by taking that individual and, in an unlawful fashion, restricting their speech, burning them at the stake, doing some other unlawful thing, would we sit here and say, "That's the court order; you've got to obey it"? Of course we wouldn't, because we'd say, "That's an unlawful order." Well, this judge's order is unlawful on the face of it. In the clear, plain text of the Constitution, not requiring obscure interpretation, it is clearly unlawful.

So, when people say this is, "You've got to obey the law"--no. You must obey the law, and when the judge doesn't respect the law, you must refuse his unlawful order, just as a soldier might.

FITTON: Let's see if we can get a caller to Alan. Let's get Joe in Iowa. Joe, welcome.

JOE: Hi, Tom. How are you?

FITTON: Fine. You're on with Alan Keyes.

JOE: Yes. This is a great privilege to be on with Alan.

I wanted to say that I support Judge Moore 100--1,000%, actually. And I wanted to give three examples in history, when the court has . . .

FITTON: You can give one. We don't have time for three, but you can give one.

JOE: One? OK. How about the Dred Scott case, when they decided that blacks were just 3/5ths human, and it took the lives of almost 500,000 Americans during the Civil War to change that.

FITTON: OK, thanks, Joe. Alan, is this another Dred Scott? We got about a little less than a minute left.

KEYES: Actually, in a way, I think it's even worse, because Dred Scott was an assault on the rights of individuals who belonged to a certain group, black Americans. This is an assault, wholesale assault, on the right of the people, guaranteed under the Constitution, to decide through their states with respect to matters of religious belief.

When you assault the right of the people, you subvert our form of government. That's what concerns me here. Our Constitution is being subverted, and oligarchy is being substituted for government of the people, by the people, for the people, on an issue that the Founders thought was most important. They put it first for a reason.

FITTON: Alan Keyes, thank you.

KEYES: You're welcome.