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Aug 08 2012

Wingnut on Wingnut Crime: Keyes v Scalia

Justice Scalia has been on a publicity tour for his latest book and giving interviews to major media outlets. One of the things he has said over and over again throughout his time on the bench is that majoritarianism should rule in the absence of a specific right named in the constitution (like most conservatives, he pretty much erases the 9th Amendment — at least when it suits his purposes). Alan Keyes quotes one such recent statement:

“My view is that regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad – regardless of how you come out on that – my only point is the Constitution does not say anything about it,” Justice Scalia stated. “It leaves it up to democratic choice. Some states prohibited it and some states didn’t. What Roe v. Wade said was that no state can prohibit it.” …

“Now and then we have to tell the majority, the people, that they can’t do what they want to do, that what they want to do is unconstitutional and, therefore, go away. It’s the American people that gave us that power, it’s the American people that said, ‘No, we’re not going to let future legislatures do what they want no matter what.’”

But this is simply too much for Keyes, who thinks God — or his interpretation of God’s will — should be the ultimate arbiter of what is allowed and what is forbidden:

But this correct understanding of the source of constitutional authority begs the obvious question: From whence does the more permanent will of the people, as declared in the Constitution, derive its authority to dictate terms to those who wield the power of government? If the people say that black is white, does their will govern the observations of empirical science? If they say that blacks are sub-humans, does their will alone decide black freedom or servitude? Like the Constitution itself, Justice Scalia assumes that the just powers of government are derived from the consent of the people but, like the injustice of abortion, this is nowhere explicitly stated in the Constitution itself.

To be sure, the Constitution provides for periodic elections to determine who shall take responsibility for certain offices in the government; it even makes clear that the words of the people, as expressed in the Constitution, shall be the Supreme Law of the Land. But if, in the name of history, social justice, or progress for humanity and the earth, someone claiming superior knowledge, virtue or effectiveness challenges the right of the people to wield such authority, where in the Constitution do we find the terms with which to answer their challenge?

We do not find them in the Constitution. It declares the people’s will, without justifying their claim to rule by it. We find that justification in the words of the Declaration of Independence. Therein are presented the self-evident truths which justify the claim that just government must be based upon the consent of the governed. But these truths acknowledge a source of authority that transcends human will, that is, the authority of the Creator, God. So, just as the superior will of the people logically governs the will of the branches of government the people ordain and establish in the Constitution, so the superior will of God logically governs the will of the people, whose right God endows and substantiates.

This means that, contrary to Justice Scalia’s assertion, the arbitrary and unconstrained will of the people, no matter how great a majority it represents, may not claim, by itself, to decide matters that involve God-endowed right. In these matters, the people themselves appeal to God to substantiate their claims. So, when the people’s will contravenes God-endowed unalienable right, they contradict, and so cut off at its source, the superior authority by which they logically claim the right to ordain and establish the constitutional rule of government. Neither the people nor their agents can logically claim to govern by means of an instrument they have thus fundamentally destroyed. The first constraint of constitutional self-government of, by, and for the people, is the one that requires respect for its premises. If that foundation be destroyed, no Constitution will do.

Alan Keyes is a theocrat to the core. Scalia is not, but his jurisprudence does sometimes — not always, only sometimes — reaches the same result by a different path.

14 comments

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  1. 1
    eric

    But if, in the name of history, social justice, or progress for humanity and the earth, someone claiming superior knowledge, virtue or effectiveness challenges the right of the people to wield such authority, where in the Constitution do we find the terms with which to answer their challenge?

    That would be Article V; there’s a clearly laid-out method for challenging the Constitution.

  2. 2
    matthewhodson

    I don’t know why Alan Keyes bothers with all that hand waving explanation about the Xian god being the ultimate authority over law in America. This alleged deity seems to be rather silent on the issue of abortion; unless you count the myriad examples of god supporting oppression of women as tacit approval of the denial of reproductive autonomy.

  3. 3
    Subtract Hominem, a product of Nauseam

    Keyes:

    Like the Constitution itself, Justice Scalia assumes that the just powers of government are derived from the consent of the people but, like the injustice of abortion, this is nowhere explicitly stated in the Constitution itself.

    Except, you know, for the part where it does.

    We the People of the United States … do ordain and establish this Constitution for the United States of America.

    (emphasis is in the original)

  4. 4
    RW Ahrens

    But the DOI isn’t a founding document of the United States. It was the document which severed political ties between the colonies and Britain. Thus, it was deemed important to use language that mirrored the “divine right of kings” theme in that nation’s basic legal foundations.

    When the Founders decided to correct the mistakes made in the Articles of Confederation, they set the people as the supreme authority, from which the government’s authority derives. To frustrate the tendency of “the people” to change their minds frequently as the winds blow, they made changing that document hard, and the rules therein fairly basic and broad.

    Thus, the SCOTUS has the authority , and the task, of telling the American people, “Wait a minute, you’ve forgotten a basic rule, this law won’t fly.” This is to protect minorities from the tyranny of the majority, which Keyes seems to see as a problem (the tyranny, I mean), and rightfully so.

    There is no justification needed. The authority is declared, the powers given the government delineated, and specific restrictions on the government outlined. Nothing more is required.

    If Keyes wants a justification for authority, then where is the justification for his divine authority? One can keep asking for justifications forever.

  5. 5
    Randomfactor

    the authority of the Creator, God

    Who is ALSO nowhere to be found in the Constitution.

  6. 6
    Zinc Avenger (Sarcasm Tags 3.0 Compliant)

    Because the Constitution is all about putting rights to the vote, amirite?

  7. 7
    subbie

    Supreme executive authority derives from a mandate from the masses, not some farcical aquatic ceremony.

    –Python, Monty

    Isn’t it amazing that an ancient comedy troupe had a better handle on the legitimate basis for governmental authority than Alan Keyes does?

    Wait… No, not amazing. Sad.

  8. 8
    Francisco Bacopa

    Keys used “begs the question” incorrectly. I would dismiss what he was saying even if it was something I agreed with.

  9. 9
    Michael Heath

    Ed writes:

    Alan Keyes is a theocrat to the core. Scalia is not, but his jurisprudence does sometimes — not always, only sometimes — reaches the same result by a different path.

    Perhaps J. Scalia isn’t a theocrat, I’m not so sure. I can’t see him posing many obstacles if the Religious Right got super-majority power in the Congress. And J. Scalia certainly is a partisan. One whose political objectives outweigh much of any effort to consistently apply credible interpretative techniques; with some exceptions sure, but those are in the distinct minority of his opinions.

  10. 10
    Scientismist

    Scalia (“God’s Justice and Ours”, First Things, May 2002):

    But the core of his message [St. Paul, Romans 13:1–5] is that government—however you want to limit that concept—derives its moral authority from God…

    These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies…

    The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible.

    If Scalia is less of a theocrat, it is only reluctantly, and with a great willingness to fix the “problem” posed by democracy.

  11. 11
    brocasbrian

    Thank you RW Ahrens. Very well put.

  12. 12
    d cwilson

    But the DOI isn’t a founding document of the United States.

    Theocrats don’t care. The DOI mentions a creator, therefore it must be supreme over the Constitution, with all it’s pesky nonsense about freedom of religion and no religious tests for public office, etc.

  13. 13
    kermit.

    matthewhodson: This alleged deity seems to be rather silent on the issue of abortion

    Exd 21:22 If men strive, and hurt a woman with child, so that her fruit depart [from her], and yet no mischief follow: he shall be surely punished, according as the woman’s husband will lay upon him; and he shall pay as the judges [determine].

    Not an automatic capital offense. Yahweh clearly does not consider a fetus to be a person. It is instead a man’s lost property.

    Cheating on your husband is a capital offense, so is talking back to your parents. But causing an abortion via criminal behavior warrants a fine.

    BTW, OT; Yahweh clearly considers slaves to be property:

    Exd 21:20 And if a man smite his servant, or his maid, with a rod, and he die under his hand; he shall be surely punished.
    Exd 21:21 Notwithstanding, if he continue a day or two, he shall not be punished: for he [is] his money.

  14. 14
    Chiroptera

    d cwilson, #12: The DOI mentions a creator, therefore it must be supreme over the Constitution….

    Funny thing is, the first time I saw the claim that the DoI isn’t a legally binding document, it was a conservative countering a leftist who was quoting it to justify the existence of rights and the limitations of state power.

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