March 24, 2005

JOSEPH FARAH, HOST: Jeb Bush plays a very significant role in this drama we've been talking about for the last hour--the Terri Schiavo drama. And Alan Keyes, along with our good buddy Larry Klayman, were down in Florida today to hopefully persuade the good governor that he has the power to act in this case.

Alan Keyes is joining us now. Author, diplomat, former presidential candidate, former radio talk show host, singer extraordinaire, a real renaissance man. Welcome to the program, Alan.

ALAN KEYES: Thank you. How are you?

FARAH: Good. How did it go with the good governor? Did you get in to see him?

KEYES: No, I haven't talked to the governor yet. I did just have a chat with his deputy chief of staff, so we're making some progress, and we will see where things go.

I have been doing some media, talking to folks here during the course of the day, and also trying to share with them some of the ideas that are now posted on your WorldNetDaily.com site in the essay that I wrote, making clear the responsibility--some people say the right. No, it's actually a responsibility and obligation of the executive in a situation like this to act in accordance with his conscientious understanding of the constitution, in this case, of the state of Florida, and his obligations to protect the Constitution, preserve and support it.

In the Florida constitution, the right to enjoy and defend life is an explicitly recognized right, in Article I, Section II, I believe it is, of the Florida state constitution. So, it is not even something that is implied. It is clearly stated. And the governor has a clear and explicit obligation to protect it if he conscientiously believes that it is being destroyed--and he says that he does, in the Terri Schiavo case. He has even declared that new information has come forward making it even clearer.

FARAH: And only yesterday, his secretary for Department of Children and Families noted similarly that even under the regulations of that department, they have not only the right to go in there, but the obligation, the authority, and the duty to do that, as you say.

Why would they put that statement out there yesterday--Lucy Hadi, the secretary of that department--if they weren't planning to use the authority? Why did they then go in and ask permission of Judge George Greer?

KEYES: I really, myself, do not quite understand it. It seems to me a number of things are true. First, it is true that the supreme executive authority in the state of Florida, as in all of our constitutions around the country and at the national level, is vested in the governor. That means there is not executive authority in the state of Florida superior to that of the governor, and the executive has the exclusive right to execute laws and judgments.

So, if Judge Greer has issued a restraining order, the question I would ask is, who carries it out?

FARAH: Um-hm.

KEYES: Because, the governor is the supreme executive authority. There is no authority in the state of Florida--executive, person, official, sheriff, whoever--who is superior to the governor and can challenge his authority. And therefore, the restraining order is without effect, in the literal sense. It has no force behind it, because the executive who controls that force believes that it is unconstitutional.

FARAH: Yeah, and I'd like to see Judge Greer try to get help from the U.S. Marshals, because Jeb Bush's brother controls them.

KEYES: Well, of course, I don't see any grounds in which the judge could appeal for help from the U.S. Marshals or anybody else. The judiciary, in fact, has no executive authority. It can issue opinions, and so forth and so on, but it must rely on the cooperation of the executive to carry those opinions into force. And in this particular case, the executive would not be extending cooperation with this effort to do Terri Schiavo to death, because the Florida constitution contradicts it.

That's the other point I'd want to make. People always talk about "judicial review." I think the proper phrase should be "constitutional review."

FARAH: Thank you.

KEYES: And of course, when the judges are judging a case, if a law seems to them to conflict with the Constitution, they have go with the Constitution. But if a governor is faced with a judicial decision, and he conscientiously concludes that that judicial decision conflicts with the Constitution and his constitutional duties, he can't obey it!

FARAH: Um-hm.

KEYES: And so, constitutional review obviously applies to all three branches, in the pursuance of their duties. They must review their own actions, and only take such actions as are consistent with their constitutional duties, obligations, powers, and responsibilities. Yes?

FARAH: Absolutely, Alan.

KEYES: And so, in this particular case, the governor has a constitutional obligation to defend the right to life of Terri Schiavo, and the judge's order cannot interfere with his execution of that, because the judge cannot substitute the judiciary's judgment for the judgment of the executive, in controlling executive power. If that were possible, then the judiciary would be the supreme executive--and that would violate the explicit terms of the Florida state constitution.

FARAH: In your characteristically brilliant piece today on WorldNetDaily, "Why Jeb Bush Has the Power to Act Now," largely, this is kind of an indictment of judicial tyranny, which we are seeing manifest itself in many ways around this country. But is this, perhaps, the worst example you've seen? Is this the example that can awaken the American people to what's happening, how the very institutions of government are being changed before our eyes?

KEYES: I would hope so, because it shows, poignantly and tragically, that this abuse of judicial power is resulting in a threat to innocent life, such as Terri Schiavo's, in a direct and clear way. In point of fact, the judges are saying, "If we want somebody dead, nobody else in the government has the right to interfere with us."

FARAH: Yeah.

KEYES: And that, of course, is the most tyrannical kind of statement you can make. And it is one of the reasons for the system of checks and balances--so no one branch of the government can ever make that statement; so that the other branches are authorized to withhold their cooperation, to interfere; so that no branch can claim unto itself all the powers of government.

The power to make the judgment, the power to determine the substance of the law, and the power to carry it out. That's what the judges are now claiming for themselves: all the whole power of government in their hands, dominated by them, with nobody able to say no to them.

And of course, that is not what is in our constitutions.

FARAH: You know, as I was reading your piece today, I was thinking back about the Founders, and what so many of them said in different words, that, you know, you can devise the best system of government in the world, but unless you have a moral people, it's going to fail. Do you think we've reached that point in America today? Are we the problem, or is it just these politicians?

KEYES: I have to say, I don't believe that, as a whole, the American people have reached that stage--though, obviously, the media, the entertainment industry, the news people, everybody is working on us to try to corrupt our conscience, reduce our understanding, destroy our knowledge, turn us away from an understanding of our heritage, politically and spiritually. They are doing everything they can to destroy the character of our people, but I don't think it has succeeded yet.

One thing is clear, though. It has succeeded in undermining the character of our leaders.

FARAH: Um-hm.

KEYES: And it has succeeded in corrupting their understanding, making them timid and lacking in courage, even when they know what is the right thing to do.

FARAH: Don't people get the leadership they deserve, though?

KEYES: Well, I hope not.

FARAH: [laughs]

KEYES: I think at various times in American history, we've had our ups and downs, but we have always managed to turn in the crunch to leaders who corresponded to the better character that is needed to sustain our system of self-government. And I hope we can do that now.

That's one of the reasons I'm here in Florida, because I think that, in this whole matter, Jeb Bush has shown himself to be somebody who appreciates what's right, and who is looking, apparently, for avenues that will allow him to get it done.

What I am trying to do is make it clear that the constitutional system in America gives the executive the avenues to directly intervene against injustice--and to do so in a timely way. He doesn't have to wait and let the laws' delay take the life of Terri Schiavo. That is why, in point of fact, the executive power is given to a single individual who can act decisively in order to deal with circumstances that, if left to fester, would result in permanent and irreversible damage to the citizens and to the Constitution.

FARAH: I know you're doing your share. You're down there in Florida, on your own time, and I'm sure on your own dime, to try to intervene in this case. But are you optimistic we are going to be able to save Terri Schiavo's life? She can't have more than a few days left.

KEYES: Everything depends now on Jeb Bush.

FARAH: Um-hm.

KEYES: And I think that, as I point out in my piece, sometimes, especially on the conservative side, people are lamenting how bad the judges are. Right?

FARAH: Right.

KEYES: Well, remember, we have a system of checks and balances in our Constitution. If one branch of government is running riot, it's because some other branch is not doing its job.

When are we going to remember this?

The system of checks and balances is not automatic. The other branches have to exert themselves, in order to check the tyrannical impulses of the judiciary. And in this case, it's the executive who has to say no.

Hamilton makes this very clear, in Federalist 78, when he says the judiciary is the weakest branch of government, because it has neither "force nor will"--meaning to say, it can't claim to represent the will of the people directly, that's the legislature elected by the people, and it cannot control any of the forces of execution and implementation of the law, because that's the executive's prerogative.

So, in point of fact, the judiciary relies on the concurrence of the executive branch, and it relies on the substance provided by the legislature.

Now we have judges who are saying they get to determine the substance; you have [them] abusing the power of judicial review. And that they can then order the executive to stand aside and let their abuses go forward--that's absurd.

It is for the executive in this case to make it clear that he has a separate, independent obligation to the constitution, in this case, of the state of Florida, and he means to act on it, and will. And he needs to do so now.

FARAH: Our guest is Alan Keyes. If you'd like to join us, it's 877-232-4855.

[break]

FARAH: We've got a few more minutes left with Alan Keyes, one of the most brilliant minds in America today. He's in Florida to try to persuade Jeb Bush to intercede on behalf of Terri Schiavo.

First of all, Alan, I want to thank you for what you're doing, because I can think of no more important mission today. I wish I could be there with you, to help you try to convince Jeb Bush to do the right thing.

I mean, it occurs to me that tomorrow is Good Friday, and here's a woman who is being starved to death, actively, [with] armed guards, so that no one should be able to bring her food and water or any kind of relief at all. She's suffering, just as Jesus suffered!

And here's a woman who--you know, you talk about innocence. This is a woman who hasn't even been capable of committing sin for the last 15 years, by definition. I mean, the parallel is striking. And the question is whether Jeb Bush is going to play a heroic role, and intercede her, or rather he is going to play the role of Pontius Pilate.

KEYES: I think that's exactly the question, because it would, of course, be possible for him to pretend that, "Well, I can't act because the judge told me not to," as if this judge has an executive power superior to his and an obligation to the Constitution that supersedes his when it comes to the use of executive power. That's not possible, but he can pretend that that's true, and try to plead, "Well, I couldn't do anything"--but that's not the case.

And in point of fact, as I have pointed out to people, let's imagine, for a second, that a lynching were taking place across the street from the statehouse that had been ordered by some racist judge. Right?

FARAH: Great analogy.

KEYES: Is there anybody to suggest that because a judge ordered it, the governor of the state of Florida would be obliged to let it go forward, until he had gone through seven courts, and the person was already dead? No. He would be obliged to intervene, stop the killing, and let the judge deal with the aftermath, if he wanted to protest.

That is what it means for the executive to move in defense of the integrity of the Constitution. He must do so in a timely way that prevents irreversible damage to the citizens and the Constitution. And if he does not do so, he is not fulfilling his responsibilities as chief executive.

FARAH: And I have a feeling, in that case, that if the governor did not act, the President of the United States would act.

KEYES: Well, we'd have also--I think that the kind of courage that's required here. I'm put in mind of Ronald Reagan firing the air traffic controllers. I'm put in mind of G.W. Bush going into Iraq, in spite of the U.N. saying no.

There are times when an executive must look at his duty to the Constitution, and fulfill it; must look at his duty, for instance, for the safety and security of our people, and fulfill it; must look at his responsibility for the integrity of our rights and constitutions, and fulfill his oath.

FARAH: Let's take a couple of quick phone calls, if we can, Alan. Let's go to Janet in Chicago. Your question or comment for Alan Keyes.

JANET: I have a few comments to make. For one thing, no government ever is going to tell me how to take care of my loved ones. Another comment is, I think the people who are supporting this need to look at Terri. She's been like this for 15 years, and maybe her mother and dad are being selfish because they don't want to let her go--but that might be the best thing for her, because she'll be in a better world.

FARAH: All right. Thank you, Janet. Let's let Alan comment.

KEYES: Can I raise an issue? Because I think the formulation that has been used by [unintelligible] to be this, might be that, right? That means there is a doubt about it, doesn't it? And we know in America that you are not allowed, for instance, under the criminal law, to put somebody to death until they have been tried and it has been shown beyond a reasonable doubt that the facts of the case warrant this penalty. Isn't that right?

So, even the way the caller talks makes it clear, there is a reasonable doubt about all of this. There's a reasonable doubt about what Terri Schiavo would want. There's a reasonable doubt about whether her husband is in fact a fit guardian of her interests. There's a reasonable doubt about whether she would, in fact, have included simple feeding as any kind of extraordinary measure, and so forth and so on. Where there is a reasonable doubt, we are not permitted to go forward with the death penalty.

And I would have to say that the first statement [the caller] made, that the government doesn't have the right to interfere with how I deal with my loved ones--so I suppose parents can just kill their children, because they're our loved ones? Obviously not.

Whenever killing takes place in this society, it is by definition something that affects the public interest. And therefore, you can't do it. Why did Michael Schiavo have to go to court? Why is the caller forgetting that the courts are part of the government, and that once you go to court, you have already been involved with the government, the judicial branch thereof?

So, the notion that somehow or another this is some private decision that he got to make--that was never true.

FARAH: Alan Keyes, please keep up posted on your progress there. We wish you the very best of luck. Thanks for being with us. We'll be back with more after this.

[break]

FARAH: Alan Keyes has decided to stick around for another segment. So, if you'd like to get into the action, give us a call at 877-232-4855. He's down in Florida trying to persuade Jeb Bush to intercede to save Terri Schiavo's life. 877-232-4855 is the number. Let's go to John in North Carolina. Your question or comment?

JOHN: Good morning, sir. Thank you for taking my call.

FARAH: You bet.

JOHN: I hope you and your guest are doing well. I'd like to make a couple of comments real quick, and then let you guys elaborate on it.

First of all, in child custody cases, a lot of times the court will step in, and even if it means taking a child from the biological parents, they will do what they feel is, quote, "in the best interest of the child." It's obvious that Michael Schiavo does not have Terri's best interests at heart, so why in the world don't they step in and say, "Because of that, we feel like we need to take custody of Terri"?

And secondly, I understand that a lot of the libs are looking at this as not a political issue so much as a religious issue, and so, if Terri Schiavo dies as a result of this, then would she not be considered the first modern-day Christian martyr?

KEYES: [pauses]

Well, I think the last point is very arresting. It especially comes appropriately since we are headed into Good Friday and Easter, and I think the whole question of the suffering of the innocent has got to be on our minds in this season. And that's what is going on here, without any doubt.

I think the point is well taken about intervening in the case where you have to protect the interest of the child--in this case, of an individual who is otherwise helpless. And that's one of the areas where there has been the most doubt, isn't it, as to whether Michael Schiavo really is a fit guardian. And the question, since she can't make the decision for herself, he's come forward with some self-serving testimony saying she wanted this--which has been contradicted, by the way, by others close to her, so there's a doubt about that. And second, there is a doubt about whether he in fact is acting in her best interest, since he has lived his life in such a way as to suggest that he just wants to get on with it, and she is an inconvenience.

So, I think that the caller is exactly right, and that is the factual basis on which one must come to the conclusion that she is being done to death in a way that contravenes her constitutional right. Jeb Bush has reached that conclusion, apparently, has even said that there are new facts that support the idea that she is being approached in an abusive way--as if starving to death isn't abusive enough. And I think the caller makes a very good point that supports the idea that this is a situation where, in the interest of the life and death of this individual, intervention is critical.

FARAH: You know, Alan, in so many ways, it seems that our leaders--particularly at the federal level--seem all too willing to ignore, you know, what constitutional limitations are on their authority. And then, at the same time, we see them unwilling to live up to their constitutional obligations.

KEYES: Yes. Well, I think it's a matter of political calculation and cowardice, don't you?

FARAH: Absolutely.

KEYES: I mean that the simple fact of the matter is, they do what is most politically expedient, regardless, and the sad truth is that if it's politically expedient to disregard constraint, they do it; if it's politically expedient to disregard obligation, they do it.

And this is what people are getting fed up with, I think. It's undermining our faith, not only in our leaders, but in the integrity of our constitutional system. And that's a very bad thing.

FARAH: Looking at it just from the aspect of political expedience, if Jeb Bush has presidential aspirations, don't you think he's making a mistake sitting on the sidelines?

KEYES: Well, all I would say is this: we have seen, and I cited a couple of examples, that when you're talking about the presidential intervention, you've got to have somebody who understands the obligations and the responsibilities of the executive, and is not willing to give up his obligations because somebody says no.

When the U.N. says, "No, can't go into Iraq," but it's necessary for the security of the country, [he says,] "I'm going to do it"--that's G.W. Bush.

"No, you can't fire the air traffic controllers; it'll do this and do that," [they say, but he says,] "No, it's necessary for the country. I'm going to do it"--Ronald Reagan moves forward.

That kind of decisiveness, that kind of courage, that kind of capacity to understand the grave importance of your responsibilities, and to act on them in spite of what might be necessary consequences that you're going to have to deal with, that's the very essence of what it takes to be a chief executive and to act on behalf of the whole people.

And I think that is being tested here, without a doubt.

FARAH: The hour is late for Terri Schiavo, and the number one question I get on this program, the number one question I get in the hundreds of emails on a daily basis, people want to know, "What can I do?" What can the average, ordinary person do who is listening to us right now, Alan, who shares our convictions on this? How can they be a factor in the eleventh hour here to save Terri Schiavo's life?

KEYES: I think the most important thing people can do right now is get in touch with Jeb Bush and express their support for his executive responsibility to go forward and protect the constitutional right, as guaranteed by the Florida constitution, to life of Terri Schiavo. I think that encouraging him in this way, supporting him in this way, will, I hope, embolden and encourage him to act according to his clear constitutional responsibility.

FARAH: Let's do it! Let's call! Let's FAX! Let's e-mail!

Let's go to Daniel in North Carolina. Your question or comment?

DANIEL: Yeah, first of all I wanted to say I appreciate the way that you both intellectually and logically defend Christians in the country--especially you, Mr. Keyes. I thank you very much for that. I just want to get you started on one topic, and that is the inhumane way that they are letting her die. Aside from the fact to whether or not she should live or die, how can they let her die such an inhumane death, when we wouldn't even allow an animal to be treated in that manner?

FARAH: Thank you, Daniel.

KEYES: I think that's exactly right. And one of the things that I think is poignant, tragic, and unjust about this situation--and I think that Jeb Bush touched on it in his press conference yesterday--was that, you would think we would owe to an innocent person in this tragic circumstance at least the consideration we give to people who have been convicted of crimes.

FARAH: Um-hm.

KEYES: Now, if you have been convicted of a capital crime, you can't be starved to death in America.

FARAH: Right.

KEYES: It's not allowed.

FARAH: Only a very small number get the death penalty, you know, by lethal injection or some other way.

KEYES: Right. And not only that, but if new information comes forward which convinces the governor that the situation is such that imposing this penalty on you is now not just or right or is subject to serious question, he can intervene immediately to stop the execution. Does everybody forget this?

That's what it means to have the power to reprieve. And the governor has this power, with respect to people who have been convicted of heinous crimes. And yet, we're being told that he has no such power in the defense of an innocent person in tragic circumstances, when their life is being taken in a way that is even beyond the pale, when applied in the criminal proceedings. I think it's obviously something that totally contradicts our sense.

And finally, there is that question of reasonable doubt, where, in criminal courts, we would not allow the death penalty to be adjudicated unless it has been proven beyond a reasonable doubt what the facts are, right?

FARAH: Right.

KEYES: And the facts in this matter have not been established beyond a reasonable doubt. Every single aspect of the decision involved here is subject to a reasonable doubt. And that means that it is a travesty to say that some due process has been observed in going forward with the imposition of this result on someone who is guilty of nothing.

FARAH: We've got a caller who has been trying to get in touch with Governor Bush. Andrew, what's your experience?

ANDREW: Hey, Joseph. Listen, each time for the past few days, I've tried to call Governor Bush's office, and each time I get either the phones are out of service, or the phones too heavily operated at this time. But I've sent emails, and you get an instant reply back saying, "Thank you," that, you know, "We got your message."

But look, I thought that the governor of the state has all authority over the judicial, or over the courts.

KEYES: Well, no. We actually have a system in which each branch of government is equal, and separate, and independent in its operation. They are, in a sense, masters in their own house. And in that sense, the judiciary does have the right to police itself; make its own decisions, [unintelligible] its own discipline, write its own rules, decide and adjudicate cases according to its own precedents, and so forth and so on. That is absolutely true.

It also has the right, I believe, to obey the Constitution and follow the Constitution, rather than a specific law, if the Constitution appears to differ.

The only point I'd make is that is true of the executive, as well. The executive is independent. The executive is not subject simply to judicial dictate. The executive has a responsibility to prefer the Constitution to the orders and dictates of the judges and the judiciary, when they conflict with his constitutional responsibility.

And that is what is being missed in this case, if people are suggesting that Jeb Bush must simply and in some fashion, like, I don't know, a Nazi general, he's got to forward and obey the judge, even when the judge is telling him to do that which contradicts the constitutional duty that he clearly has and recognizes. No. That can't be. It violates his oath, it violates the separation of powers, and it constitutes the destruction of that balance between the branches, which guarantees our liberty.

FARAH: Alan, let's talk about the federal courts in this case for a moment. The emergency that was passed by Congress a few days ago, signed by President Bush, it did more than, as I read it, it did more than instruct federal review in this case, it seems to me, quite clearly, that it instructed the federal court to reinsert Terri's feeding tube, and to review the entire case, in other words, reopen an investigation, not just look at what Judge Greer had found. Am I wrong?

KEYES: I think that there is, as you might expect, [unintelligible] a dispute over this, over whether the language required a de novo consideration, including looking at the facts, and considering whether they have been properly weighed, or whether it could be done on a narrower ground.

What has happened is that the judge decided to construe it on the narrowest possible grounds, and has been backed up now by the higher levels, because that is the one that exposes the judiciary to the least loss of power.

And so, I think that one of the problems we have here is that we are in a situation, when it comes to the judicial power, where we ask the judges to be the judge in their own cause when it comes to imposing a constraint on their power. Why do we expect that this is fair?

It's a fundamental principle of fairness that one cannot be judged in one's own cause.

FARAH: Um-hm.

KEYES: And yet, we are looking at the judiciary and saying, "When it comes to determining your power and its application in every aspect of it, you are to be judges in your own cause. Nobody can interfere with you."

That's obviously crazy, and we are getting the results, unfortunately, that reflect the bias of the judiciary in favor of its own prerogatives.

FARAH: Let's try to sneak in one quick call. Let's go to Pat. Your question or comment for Alan Keyes?

PAT: Hi. I would like to know, perhaps Mr. Keyes could tell me, I understand that her husband has been living with this woman, I don't know, it's several years, I don't know how many. I used to think that after seven years, you were considered a common law marriage. If that is so, and if he has been living with her, and she is considered a common law wife, wouldn't he be a bigamist?

FARAH: Thank you, Pat.

KEYES: Now, I can't be, in any sense, fair. When I deal with the Constitution, it is because I have been a scholar of the Constitution--in terms of study and my doctorate, and all that. It's my understanding, though, that the whole concept of common law marriage is going to differ from state to state, in terms of what is recognized and what is not, and whether any such thing is recognized. And so, it's not a foregone conclusion that's uniform, I think, around the country.

FARAH: But common sense suggests that somebody in this situation--we really ought to look at whether, you know, he's going to be the proper guardian.

KEYES: Right! The fact is, as the caller points out, he's "married" again. And the fact that he's had children--to suggest that he is in therefore no way impaired as Terri's husband is also absurd on the face of it.

FARAH: Alan Keyes, have a blessed Resurrection weekend. Thank you again for being with us. We appreciate you. Keep up the good work.