Alan Keyes
Posted: December 04, 2008
© 2008
The events that mark the end of one form of government and the
beginning of another are more easily perceived and understood in the
aftermath than by those caught up in the events and circumstances that
constitute the transformation. The passions and affections of the
moment interfere with the detachment that makes it possible for the
mind to see the true significance of issues and decisions. Some things
that seem large and momentous are in fact the exaggerated mirages of
transient passion; others dismissed as sideshows will be seen in
retrospect as crucial to the main event.
At the moment, these different possibilities may be ascribed to
the same occurrence. A great storm of interest and celebration rages at
the prospect of the first "African-American" president, and the
supposed implications of his election as a breakthrough in the history
of "race" relations in the United States. Yet, because it centers on a
man who has in his background and character no ties to the actual
people and events of that history, historians will have to look
elsewhere for the event that truly represents the denouement of the
story whose greatest turning point remains the first American Civil
War. By contrast, scant attention is being paid to the unfolding
constitutional drama, also connected with his inauthentic personal
history, even though it clearly represents a potentially fatal crisis
for the regime of constitutional, democratic self-government that has heretofore determined the government of the United States.
Until now, the government of the United States has been a
constitutional republic based on the sovereignty of the people. The
Constitution of the United States, as the ultimate and permanent
expression of that sovereignty, has been respected as the Supreme Law
of the Land. Some people, myself included, would certainly argue that
in some matters this respect has been a merely formal camouflage for
actions and decisions that contradict, embroider or simply ignore the
plain text of the Constitution, but until now this has been done with
arguments (however groundless and illogical) that formally preserve its
authority.
Now a question has arisen with respect to what may be in a
practical sense the most critical allocation of power in the
Constitution, that of the president of the United States.
Though by election that power is in the gift of the American people,
the Constitution clearly imposes two restrictions or conditions upon
it. It cannot be extended to someone under 35 years of age. It cannot
be given to anyone who is not a natural born citizen of the United
States.
Evidence has emerged, including recorded statements by his Kenyan grandmother, that raise doubts as to whether Barack Obama
is in fact a natural born U.S. citizen, eligible to be president.
Whatever the facts are, there can be no doubt of the constitutional
requirement, and no doubt that a conscious decision to ignore it
involves open and destructive disregard for the Constitution's
authority. If Obama is accepted as president of the United States in a
context that sets aside the Constitution of the United States, by what
authority will he govern?
Relying on the results of the recent election, some will say "by the
authority of the people," which is to say the majority of the people
which elected him. But until now, the United States has not been simply
a democratic republic (that is, a regime in which the sovereign power
follows the will of the simple majority) but a constitutional
democratic republic (in which the sovereign power follows the will of
the constitutional majority, and is bound by the terms and conditions
specified in the Constitution.) The best illustration of the difference
may be taken from the very history Obama's election is supposed to
culminate – the history of black Americans. In 1954, when the Supreme
Court announced its opinion in the famous Brown v. Board desegregation
case, the simple majority of the American people had repeatedly and
continuously accepted or tolerated segregation, both in their election
of representatives and in the legislation
passed by those representatives. The Court held segregation to be
contrary to the Constitution (the Supreme Law of the Land) and
therefore unlawful. Its authority to do so rests on the clear logic of
judicial review succinctly articulated by Alexander Hamilton in the Federalist Papers:
A constitution is, in fact, and must be regarded by the
judges, as a fundamental law. It therefore belongs to them to ascertain
its meaning, as well as the meaning of any particular act proceeding
from the legislative body. If there should happen to be an
irreconcilable variance between the two, that which has the superior
obligation and validity ought, of course, to be preferred; or, in other
words, the Constitution ought to be preferred to the statute, the
intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the
judicial to the legislative power. It only supposes that the power of
the people is superior to both: and that where the will of the
legislature, declared in its statutes, stands in opposition to that of
the people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They ought to regulate
their decision by the fundamental laws, rather than by those which are
not fundamental. (Federalist 78)
Though the results of any given election also represent the will of
the people, the validity of those results rests on the substantive and
procedural understanding arrived at by the people and expressed in the
provisions of the constitutional compact. In it, the people have agreed
that, first in its adoption and then in the adoption of any changes in
its terms, a more comprehensive majority is required than that which
decides the outcome of any other election prescribed by it. The need
for this more comprehensive majority makes the Constitution a more
permanent and durable expression of the will of the people than any
subsequent action by a simple majority. In this context, those who
compose the simple majority are, like the members of the legislature,
subordinate agents of the constitutional majority.
Almost all the great advances of the civil rights
cause in the 20th century depended upon this argument as to the
authority of the Constitution. The concept of constitutional review has
also been crucial in the protection of individual rights, including the
property rights of those who might otherwise be despoiled by
intemperate majorities, roused to injustice by ambitious demagogues.
If Barack Obama is allowed to assume the office of president
without positively establishing his eligibility under the Constitution,
it will set a precedent for exempting the allocation of executive power
from constitutional restrictions on the pretext that majority support
overrules constitutional authority, popularity supersedes the
fundamental law. Obviously, this is a recipe for the establishment of
democratic dictatorship, like that which characterized the
revolutionary first republic in France and licensed its murderous
excesses. It is the counterpart of the "democratic people's republics"
in whose name countless millions were imprisoned and killed by
oppressive party dictatorships in the Soviet Union, Communist China, North Korea, etc.
In an era when the insecurity implied by the threat of terrorist
attack already overshadows our liberties, only one thing may be more
dangerous to our freedom than such a precedent – the fact that it comes
about because of the ignorance, fear, or selfish ambition of those
sworn to uphold the Constitution. If they lack the character to do so
now, before abuses of executive power create an environment of physical
fear and intimidation, what must we expect once those abuses produce
their inevitable effect? The people mesmerized by his tinsel rhetoric
may expect Obama to resist the temptations of demagogic tyranny, but if
he assumes office knowing that in doing so he has already successfully
set aside the Constitution, no reasonable person could agree with them.
As Shakespeare wrote, "Things bad begun make strong themselves by ill."
("Macbeth," Act 3, Scene 2)
Since every government official in the United States is sworn
to uphold the Constitution, all of them, at every level, have a
positive obligation to make sure its provisions are implemented. With
regard to the issue of Obama's eligibility to serve as president, a
special responsibility falls upon the Supreme Court of the United
States. Though in the end, the actual implementation of the
Constitution must at this stage be left to the members of the Electoral
College (who will also be bound by oath to respect the Constitution),
the Supreme Court has the duty that falls to the judiciary in every
case, to make sure the provisions of the law are clearly understood,
and that relevant facts are presented and have not been falsified or
fraudulently withheld. Since the case involves a general election,
in which millions of citizens participated, prudence dictates that this
be done in a way that assures those millions that the law has been
respected, which means that relevant facts and evidence must be
publicly presented to the fullest extent possible.
A failure of statesmanship in this matter could obviously have
the gravest consequences. It would be inexcusable dereliction to permit
a situation in which the putative authority of a sitting president is
plainly contradicted by the authority of the Constitution from which
the whole government derives its legitimacy. Citizens, sworn officials
of government at every level, members of the military
– all would be put in a position where their sworn duty to the
Constitution is in opposition to their inclination to respect the
decisions and actions of the president of the United States. Both
intellect and conscience recoil at the prospect of such conflicting
claims. I pray that the justices of the Supreme Court, and other
officials sworn to uphold the Constitution, will do and be seen to do
their duty. Otherwise Obama's vaunted promise of change will portend
the demise of America's peaceful liberty.
A
high-level Reagan era diplomat, a media personality and a conservative
political activist, Alan Keyes is well-known as a staunch pro-life
champion and a leader in the effort to restore the eroded sovereignty
of the American people by securing our borders, abolishing the federal
income tax and bringing the federal Judiciary back within proper
constitutional bounds. He formally severed his Republican affiliation
in April and was the presidential nominee of America's Independent
Party in 2008. More information and useful links can be found at www.alankeyes.com, www.americasrevival.com or at www.aipnc.com.