March 30, 2005

G. GORDON LIDDY: All right, ladies and gentlemen. I have known today's guest for years now. I backed him when running for [Senator] of Maryland. He is one of the brightest, most articulate persons in the United States, and always a pleasure with whom to discuss ideas.

And what I wanted to discuss with him today is this problem of judicial tyranny. His name is Alan Keyes, a former United States ambassador, amongst many other distinguished achievements. Ambassador Keyes, welcome back to the show. I really appreciate you coming in.

ALAN KEYES: I appreciate you having me. And I want to tell folks that it's mutual. I have really been, over the course of the years, very impressed by the principle and clarity with which you have represented common sense, and done that with courage on every front. So, thank you for what you do.

LIDDY: Well, thank you, sir.

Now, what I see as a central problem here, not just in the Schiavo case but in so many other things, is that the judiciary--which is supposed, under our Constitution, to be one of the three coequal branches of our government--has arrogated to itself the position best expressed by George Orwell in Animal Farm, that yes, all the animals are equal, but some are more equal than others.

And the judiciary appears to think it is more equal than others. They have no problem, for example, that the supreme judicial court of Massachusetts directed the legislature there to enact laws which would enable homosexuals to marry, and so on. And then they make things up in the Supreme Court of the United States. They find things in the Constitution, not in a particular article, but in the emanations from the penumbra. I expect them, the next time, to come down with a decision saying that it's in anastratalator of the colaterator or something.

KEYES: [laughs]

LIDDY: I mean, they are just making things up!

KEYES: That's right. It's like Fantasyland.

LIDDY: I mean, am I overreacting to this?

KEYES: No, no. Not at all. I think that's exactly what has happened. And I think that the root of the problem is a misunderstanding of what ought to properly be called constitutional review. It's misnamed judicial review.

And I was actually on the radio with one of these Lefties the other day, and she was saying, "It's in the Constitution!" and I said, "No! Judicial review is not in the Constitution! It's nowhere there. Go take a look. There's no such power."

Judicial review actually results from an argument--that is to say, a line of reasoning--that was first presented by Hamilton in Federalist 78, and then reiterated by Justice Marshall, Chief Justice Marshall, in Marbury vs. Madison, and it's very simple. Very simple line of reasoning. It goes like this: if I am a judge, I am sworn to uphold the Constitution. If a law comes before me that conflicts with the provisions of the Constitution, since the Constitution is the higher, more authoritative expression of the will of the people, I must follow the Constitution. I cannot follow elements of law that contradict it. So, in doing my duty under my oath, as a judge, I have got to follow the Constitution, because I am sworn to uphold it.

To which, I think, a reasonable person would say, "Yeah. That's true when you are doing your duty."

Do you know what the problem is? The problem is that people have acted as if the judges are the only branch that is sworn to follow the Constitution--and that's not true. We have three equal branches, and the three equal branches control different elements of government power. The legislature is supposed to control legislative [power], lawmaking. The executive is the only one who can take action.

Hamilton points this out repeatedly when he talks about the judiciary, by the way, that they have no force. And indeed, one of the checks that keeps them from abusing their power is they can make decisions, but they can't carry them out. That's up to the executive.

Now, think about this. If this line of reasoning applies to the judges in their oath, it also applies to the governor and the president, the chief executives, in their oath. If a judge makes a decision, and the governor or president looks at that decision and says, "Now, wait a minute. This conflicts with the Constitution," can they carry it out?

LIDDY: No.

KEYES: Not consistently with their oath.

Constitutional review is equally the prerogative, or the responsibility, at a common-sense level, of all three branches. What the lawyers have done--and it's very cute--is they have tried to act as if the judges get to obey their oath, but when they tell the legislature to break its oath, it must go ahead and do it; or when they tell the executive to break his oath, he must go ahead and do it.

That's nonsense!

LIDDY: Yeah.

KEYES: If the judges have the power--say, this judge in Florida--if this judge has the power to say no to Jeb Bush, in terms of what he believes is necessary to do his constitutional duty, if he has that power, then he becomes the executive.

LIDDY: Well, he is arrogating that power to himself.

KEYES: And in Florida, by the way, in case people don't realize it, the Florida constitution is actually clearer on this point, to a certain degree, than the U.S. Constitution. The Florida constitution says the supreme executive power in Florida shall be vested in a governor. The word supreme, as we all know, means "highest."

LIDDY: Right.

KEYES: There is no higher authority, no higher control over the executive power, no higher decision-maker as to what to do with it, than the governor of the state of Florida. And that's direct from the constitution.

No judge, and no combination of judge and law--because the judges themselves say, if a law conflicts with the Constitution, it is no law. So, if that is true, then no combination of judge and law can establish a higher executive authority than the governor.

So, if the sheriff in Pinellas County is there, and the governor says to get out of the way, the sheriff is obliged to obey him, because the governor is the highest executive authority in the state.

And this is something people have forgotten. Jeb Bush, for instance, is under an obligation, a sworn obligation, to support, protect, and defend the constitution of Florida. If he looks at a situation, like the Terri Schiavo situation, and sees that the constitution is being attacked, damaged, undermined, it is his sworn obligation to defend it. And he says that that is what is going on in the Schiavo case. He has said openly, "Injustice is being done, her rights are being violated." If that's the case, he is obliged to act to stop the injustice.

And if a judge says, "No, you've got to let it continue," that doesn't change his sworn obligation. He is under the same obligation, because he is a separate branch of government, and he has responsibility for the use of his power that no judge can take from him.

And that's where the misunderstanding lies. The judges are running riot because we are supposed to have checks and balances. But if the other branches can't say no, there is no check on the judiciary.

LIDDY: You know, we need somebody like Andrew Jackson back.

KEYES: Yes, we do!

LIDDY: [laughs]

KEYES: No, Andrew Jackson understood the truth. At one point, as we all know--I think it was in a situation that involved the bank of the United States, and the Supreme Court had made a judgment about it, and his response was, "They have made the decision, let them enforce it"--meaning to say, "I have the power that is necessary to put this into action. I disagree with their understanding of the Constitution. I am oath-bound to follow my conscience in the use of this power, and I will not do what I regard as unconstitutional."

It's simple. It's straightforward. And it's simply recognizing that the executive and legislative branches have the same sworn duty, and therefore the same prerogative to review their use of power, in light of the Constitution, that the judges have.

And if the judges are allowed to get into a position where their will is [supreme]--think about it. You and I have a partnership. There is a contract that specifies the terms of our partnership. Somewhere, because I'm stupid, in the fine print of that contract, I've allowed a clause to be put in there that says that if there is a dispute over the meaning of this contract, you will be the one to decide what the meaning of the contract is.

Who is the boss in that situation?

LIDDY: It makes me the boss.

KEYES: It makes you the boss. If we accept the notion that the judges are the ultimate arbiters of the meaning of the Constitution, we don't have equal branches. We have judicial supremacy. And judicial supremacy means they can control legislative power, they can control executive power. And it is said explicitly, for instance, in the Federalist Papers--I think it is Madison who says--that where you have the judicial, executive, and legislative powers being controlled by one hand, whether it is at the hand of many, a few, or one person, that is tyranny.

So, when you say judicial tyranny, it's not a euphemism, it's not rhetoric.

What is happening with the courts now--because they are claiming to be able to tell the other branches what to do, based on interpreting the Constitution--is judicial tyranny! And it cannot be allowed. It is destroying self-government in America.

LIDDY: It is. And, indeed, these people, we need to remember, are not elected. I mean, even [unintelligible] they are not selected by the people. There is nothing democratic about this at all.

KEYES: And I have often pointed out to folks that, under Article IIII, Section 4, of the Constitution, in the federal Constitution, the federal government is obligated to guarantee a republican form of government in all of the states. Republican means government of the people, by the people, for the people.

If you substitute for that, government of a few, oligarchy, in which the people's will is no longer consulted in their constitutional majority by constitutional means--in other words, the legislature is ignored, the executive is ignored, and only the unelected judges ultimately have a say--then republican government is gone, and our federal Constitution has been violated.

LIDDY: Indeed. We're going to have to take a quick break, ladies and gentlemen.

[break]

LIDDY: All right, ladies and gentlemen. We're back here at the G. Gordon Liddy Show. My guest is one of the two smartest men in the United States, the other being Thomas Sowell. And one day, I would love to get them both into the studio here. They are not only smart, but have enormous common sense. Mother wit, I think is probably the best way it is expressed.

We have been discussing judicial tyranny, how it came about, and what is going on, and the suffering that we are all undergoing because of it. The telephone number, if you care to join this conversation, is 1-800-GGLIDDY. And from Arizona, George. You have a question, I understand.

GEORGE: Hello. I'd like to ask your guest there a question. And this is what I ascertain. The ultimate power lies with the state governors, and the judges are null and void. Is that what is he trying to tell us?

KEYES: Well, no. Not exactly.

The way our governments are set up--all of them, the state government and the federal government--the government power, as a whole, is divided into three parts. One part is the part that comes from the representatives of the people in the legislature. They dictate the text of the law. They only do so--by the way--under our system, with agreement from the executive. That's where the veto power and all that comes in. But ultimately, they can override his veto so the representatives of the people say what the content of the law is.

The judges are supposed to make decisions that apply the laws made by the legislatures in individual cases, according to the text of the law. Not according to their own opinions.

And finally, the power to carry it into effect is not in the hands of the legislature or of the judges. It's in the hands of the chief executive. The reason you divide power that way is so no one branch can claim the authority to make the decision, apply it to people, and carry it out--because that would be tyranny. That would be unchecked, total power in the hands of one branch. That's not allowed in our system.

But it does mean that each branch has a kind of implied check over the others. The legislature can look at the judges and say, "No. That's not the law we passed. You have made a decision that is unlawful. We're going to kick you out. We can impeach you," and so forth and so on.

Or they can turn to the governor and say, "No, the judges just made a decision that's not in accordance with the text of the law. Don't carry it out the way they want it done, because they are disobeying the law, or not regarding the Constitution."

Similarly, if the executive takes a step that is not in consistency with the law or the Constitution, the legislature and the judiciary can object--and ultimately, the legislature. And this is important, by the way. It is not irresponsible power in the hands of the governor or the president, but he is responsible, not to the judiciary, but to the legislature. The court that judges whether a governor or president is guilty of misconduct and abuse is the legislature, in all our constitutions, not the judiciary.

So, when Jeb Bush comes forward and acts like the judge--a probate judge, in this case--has authority to tell him what to do, that's nonsense. That judge is ultimately not the court to which he is responsible. In his discretion and use of executive power, according to his oath and under the constitution, it is the Florida legislature that is to hold him accountable.

But what happened in this case, as we have seen in Florida? The legislature passes a law. The governor agrees. And then the judges say, "We won't apply that law, because it's unconstitutional."

Some of these lawyers want us to believe, "That's it. That ends it." No, it doesn't. If the judges refuse to apply the law, and the legislature agrees, and the governor still refuses to carry it out, then the legislature can take him out of office for abusing his power, and not obeying the law.

But what if the legislature disagrees with the judges? They are under oath not to violate the constitution. They look at the judges' decision, and say, "But wait a minute. That violates the constitution, in our opinion." And the judges say, "No. Your law violates the constitution, in our opinion."

When that dispute occurs, what happens?

Well, in the first instance, what happens is the executive looks at them, and he says, "Well, you know, I'm the one who has got to carry this out, and I agree with"--Jeb Bush would say, in this case--"the legislature."

LIDDY: Um-hm.

KEYES: "And I'm going to follow them."

The judges can't then say that's unlawful, because the legislature is the one who makes the laws. The judges only have the prerogative of applying those laws in particular cases, and they can't even carry their decisions into action without the cooperation of the executive.

So, if two of the branches disagree with the third, they trump the third. Do you see what I'm saying?

LIDDY: Indeed, they do, and in our Constitution, we make provision for the legislative branch, the Congress, to limit the appellate jurisdiction of the federal courts.

KEYES: Well, see, if the caller--if you look at our constitutions, and you say, "Well, where is the ultimate say?" the ultimate, ultimate say in these disputes lies with the people. Right?

LIDDY: Um-hm.

KEYES: Now, at one level, by the way, it is the people through their representatives who can do it--though it's a little complex, because they can remove these people--in most of our constitutions (not all anymore, and it's a mistake, by the way) the legislature can remove the judges from the bench through impeachment and removal. They can certainly remove the executive, and all our constitutions, from his position, by impeachment and removal. So, the representatives of the people [have that power].

But where they don't have the majority to do that--because, it takes a bigger majority, it takes two-thirds, by the way, in case you haven't noticed, when a legislature overrides the veto of the executive, the majority that is required is a two-thirds majority--do you know why that is? It's because what the legislature is essentially saying to the governor is, we just overrode this measure, by the amount required to remove you from office. If you don't listen to us, we will do so. We have the votes to kick you out."

And that's why they override the veto with a two-thirds vote, because they were essentially sending him a message: "Pay attention, or we could remove you from office."

LIDDY: Right.

KEYES: The ultimate say, however, doesn't even lie with them--because, where they don't get that majority, we could end up, people would say, with an impasse, where the three branches just disagree, and nothing happens. What happens then? It's up to the people then, because they have the ability to change the characteristics of the legislature, to put a different executive in place, and, as a result, to change the balance of power in the government.

The Founders were brilliant. They wanted government of the people, by the people, for the people, so they didn't want the three branches to be able to come to a final judgment without consulting the people.

Don't we understand this?

LIDDY: I would certainly hope so, but it would appear an awful lot do not.

All right. In Texas, Jody. Go ahead.

JODY: Now, when it's a felony to not feed and water your pet, why wouldn't it be a felony not to feed and water Terri?

LIDDY: Well, it is because it has judicial approbation down there, but in fact you are absolutely right. I mean, if someone were to be condemned to death because he was a vicious rapist/murderer, and the method of execution selected would be starvation, the Supreme Court would throw it out as a violation of the 8th Amendment.

KEYES: Exactly. And the Florida constitution, by the way, explicitly guarantees the right to enjoy and defend your life. So, the judge's decision has taken an inalienable right--which, by the way, can't be given away or transferred to another--he has transferred it to Michael Schiavo, in violation of the Florida constitution.

LIDDY: Alan Keyes, ladies and gentlemen. I told you he was brilliant.