March 29, 2005

SCOTT THOMAS, HOST: As the Terri Schiavo case moves closer and closer and closer to what appears to be the end of Terri's life in Florida, rhetoric heats up, including that about who can and should still be able to do something about this.

My next guest, a good friend of this program, Ambassador Alan Keyes, asked to come on this show to talk about the role he believes Jeb Bush could still play in all of this.

Alan, how are you? And welcome back to the show.

ALAN KEYES: Hi. I'm glad to be with you. Thanks for having me.

THOMAS: You bet. You believe there is still a role that Jeb Bush can play in this.

KEYES: No, it's not really a belief or a role.

I mean, he has, under the Florida state constitution, an absolutely clear and unequivocal obligation and responsibility, and he's failing in that obligation. He is the governor of the state of Florida. The constitution vests him the supreme executive authority. Meaning, he is the only one in Florida ultimately empowered to act.

The judiciary cannot act. The legislature can pass laws, but it cannot act. The governor is the action officer, in terms of what the Florida government can do, and he has supreme executive authority. His decision-making power determines what should be done with that executive power, and there is nobody higher than he is. No judge, no law, because the constitution directly vests him with that power, and, obviously, no Florida authority can create a higher power than the one the constitution has given him.

Second, the constitution is clear on Terri Schiavo's rights. Unlike some constitutions, which have vague rhetoric, and so forth, the Florida constitution is really clear. It says every natural person has inalienable rights, among which are the right to enjoy and defend life.

And inalienable, by the way, is the key word, because--as it is used in the Declaration of Independence and elsewhere--it means that the right cannot be given away, and cannot be transferred to another by law.

Judge Greer has been acting as if you can transfer Terri Schiavo's right, exercise of her right, to her husband--and you cannot do that, under the Florida constitution, because that right has been declared to be inalienable, which means non-transferable to any other individual.

So, the idea that he has, in any sense under Florida's constitution, the right to decide to kill her, whatever his reasons, is simply on the face of it unconstitutional and false. And this is what the governor has said. And having reached that conclusion, his oath obliges him to protect, support, and defend the constitution of Florida.

Some people say, "Well, the judiciary can tell him what to do, and they trump it"--that cannot be. They are equal branches. Their equality means that, within their own responsibility, they make the judgments. Judges decide cases, the legislature decides laws, and the governor decides action, and whether it is in conformity with his oath.

A judicial order cannot trump his obligation to the constitution. And if somebody says so, it would be like excusing the Nazi generals because they were acting under orders.

No, if he conscientiously believes that justice and the constitution require action "x," he must take that action. And if a judge tells him no, he looks at that judge, and says, "Well, you have not authority to tell me what to do, because I am the highest action officer in this state."

And insofar as the judge tries to act through a county sheriff--that county sheriff cannot tell the governor what to do. The constitution is very clear about who is in charge.

THOMAS: I find myself at a disadvantage in discussions like this, because I am not an expert on the law, and I hear you impassionately and expertly arguing that point, and I have heard others just as impassionately, and it seemingly to me, and I grant you from a base of legal ignorance, seemingly arguing just as well against what you just said, that they say that the governor isn't above the law, it doesn't have the right to do that, and I see . . .

KEYES: Let me ask you a question, though.

THOMAS: Well, sure.

KEYES: Because I have heard this argument. What law are they talking about?

THOMAS: I don't know.

KEYES: They say that the governor is not above the law. What they are forgetting is that the process of lawmaking requires the three branches. Right?

THOMAS: Um-hm.

KEYES: And under our system of government, for instance, the legislature is the only lawmaker. And in this case, the legislature made Terri's Law, which is still the law on the books in Florida.

THOMAS: Right. And that was at the prodding of Jeb Bush back in 2003, and has kept Terri alive for two more years.

KEYES: Well, the legislature has spoken. And when the legislature speaks, the legislators are obliged by their oath to the constitution to make a judgment about what is constitutional. They passed Terri's Law--meaning to say, they thought it was constitutional.

If the judiciary makes its decision, what the judiciary is saying is, we won't apply that, because we don't agree with the legislature. You could ask yourself, "Fine, you don't agree with the legislature. What gives you the right to tell the legislature what to do? You don't have legislative power. You only have power over your judicial authority, and you're saying you won't apply it."

Well, the governor looks at them, and he says, "Now, wait a minute. I have the executive authority here. You can't take that out of my hands. And I agree with the legislature, and I am moving ahead."

Unless we are establishing a government of judicial supremacy, where the judges dictate what is going to go on, there is no law until you reach that kind of concurrence among at least two of the branches.

So, when they say he's is obeying them--no. He constitutes, as we know, through he veto power and other things, a necessary element of law, because without enforcement, there is no law. And that was a clear principle. Our Founders stated it over and over again, and Hamilton even explicitly pointed out in Federalist 78 that the judiciary has no authority over the forces needed to carry out the law. That is the exclusive province of the executive. So, what they are pointing out is, you've got to get all three branches to work together, and if one branch tries to dictate, the other two can say no. They can check that branch. That's what checks and balances are about.

THOMAS: And believe me, I understand that, and I have tremendous respect for your opinion on this. But I am troubled, because it seems to me that I always tend to look at issues from a slippery slope--and if we just take Terri Schiavo and that tragedy out of this, and talk sort of above that, either a legal level or a philosophical level, or whatever, it does seem to me that part of the function of the court is to ascertain whether it was or not constitutional. And they have those arguments all the time.

KEYES: But where did you get that from? Where did we get that from?

THOMAS: I guess by experience.

KEYES: No, no, no. We actually didn't get it by experience. We got it from specific arguments that were made, first by Hamilton in Federalist 78, and then by Chief Justice Marshall in Marbury vs. Madison. And the argument was actually, Scott, very simple. They said, "Well, wait a minute. We have an obligation, as judges, to the Constitution. If there is a law in front of us, and that law conflicts with the provisions of the Constitution, the Constitution, which embodies the fundamental and permanent will of the people, must be preferred to the law, which embodies the momentary will of the people. And, therefore, we have to apply the Constitution."

I think it makes perfect sense, by the way.

THOMAS: Does it matter, though, Alan, does it not at least potentially open the door to an anarchy--

KEYES: Not at all.

THOMAS: From a rogue governor?

KEYES: It's not at all. It's not anarchy we're talking about. We're talking about avoiding tyranny, because what these folks are saying is there is no check on the judiciary. If the judiciary makes up something and says it's in the Constitution, everybody has to act as if they are the law? No, we don't. The legislature can look at that and say, that doesn't make sense. We won't accept it.

And if the judiciary wants to say, "Well, you don't get to follow common sense and reason," then I will look at them and I will say, "But wait a minute. The only reason we accept judicial review is because commonsense reasoning convinced people that it made sense."

So, if commonsense reasoning says that you all must fulfill your obligations to the Constitution, by not making judgments about a case, based on a law you believe is unconstitutional, will somebody tell me why the same commonsense reasoning that applies to the executive, so that when the executive is confronted by an unlawful--that is to say, unconstitutional--judicial order, an order that involves the violation of a clear and explicit constitutional provision, they are trying to tell us that the governor has to go against his oath, go against the constitution?

So, the judges can respect their conscience, but the executive is obliged to throw his out the window, violate his oath, and destroy the Constitution? This doesn't make any sense. They are not arguing rationally.

The rational argument would be, well, when there is a disagreement between the branches, if two of the branches agree, then they obviously can go ahead--because you'd say, what if the judiciary and the legislature agree that the executive is being abusive. Do you know what happens then?

THOMAS: I do not.

KEYES: They remove the executive. That's what impeachment is all about.

By the way, ultimately, the authority over somebody is seen in the ability to enforce that authority. Do you know who enforces the decision that the governor has been guilty has been guilty of misconduct? The only body that can charge the governor with misconduct and remove him from office is the legislature. They are, as it is said repeatedly by the Founders and others, they are the court that judges the governor. Not the supreme court of Florida, not any local judge. The only court before which the governor can be obliged to appear and answer is the court constituted by the representatives of the people in the legislature. That's the check on his abuses.

So, we're not talking about anarchy. We are talking about the way our Constitution was set up, to guarantee that no one branch could exercise the power of the whole government, because the Founders declared that unequivocally to be the very definition of tyranny.

THOMAS: We have about thirty seconds left, Alan. Do you believe--I know you disagree with Jeb Bush's conclusion, but do you believe that he is sincere in that conclusion?

KEYES: Well, no. Obviously not. He's not sincere. How can he be sincere?

THOMAS: What would his motive be, then?

KEYES: Wait, wait. Let me finish. He says an injustice is going on, and he is refusing to act to do anything about that injustice, even though he clearly has the power to do so. That is insincerity. That is somebody who is basically--and by the way, this is a deep principle. He is supposed to be, among other things, a Christian and a Catholic. It's a principle, by the way, of our Christian belief that you must follow God, at the end of the day.

So, if your conscience said that an injustice is being done--and Aquinas, by the way, Thomas Aquinas, when he's talking about this very question, says that if a judge makes a decision that contains an inexcusable error that is contrary to morality and conscience, the person charged with executing that decision should not carry it out.

We applied that, by the way, at Nuremburg, didn't we? We didn't excuse the Nazi generals when they said they were obeying orders, because there is an obligation of conscience, and all I am pointing out is that Jeb Bush is not excused from that obligation of conscience. In fact, the constitutional arrangements empower him to respect his conscience--require, in fact, because he takes an oath.

And that oath, by the way, is to be carried out at his discretion. That is to say, based on his judgment of what is required by the situation, by the Constitution, and by right and justice. Nobody can relieve him of that responsibility, at all. Ever. And he shouldn't have taken the office, if he didn't want to face it.

THOMAS: Got to run. Alan, I appreciate you weighing in on this. I'm not sure I agree, but I'm not--I don't know, I'm conflicted. I'm having a difficult time. In all the aspects of this case, I'm finding it difficult making Jeb Bush the villain in this.

KEYES: Ask yourself a simple question: "What would Ronald Reagan do?" I think it's pretty clear. He would go in person to Tampa, and the whole situation would be resolved, just like that. And by the way--no danger of impeachment. He's doing what the legislature says is constitutional. They're not going to impeach him for following their will.

THOMAS: Alan, thanks. I appreciate it. Good to hear from you. We'll talk to you down the line. Alan Keyes.