by Dr. Alan Keyes • ChurchMilitant.com • November 27, 2018
Directly or indirectly, the body politic is judge, jury and executioner
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Dr. Alan Keyes
Under the Constitution of the United States, the government of the United States has three branches. For each branch, the U.S. Constitution sets forth some plainly delimited and defined responsibilities. However, the Constitution makes a general grant of power to the legislative and executive branches, respectively. It is, in each case, contingent upon circumstances, a contingency requires the person or persons responsible for that branch's duty to decide what action is required.
So the last clause in Article I, Section 8, the Constitution says of the legislative body:
The Congress shall have the power … To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
And in Article II, Section 3, the Constitution says, of the president of the United States, "[H]e shall take care that the laws be faithfully executed."
Now, the Constitution provides for both the president (Article II, Section 1) and all the members of Congress (Article VI, ¶ 3) to be bound by oath to support or preserve the Constitution. It further requires the president to protect and defend it. In both cases, this incurs an obligation conscientiously to respect the Constitution's provisions. But the president is bound to do so "to the best of his ability."
Since the office of president includes protecting and defending the Constitution (and perforce, therefore, the people and institutions required to implement its terms), the president's duty to do what is best, in that regard, must include such emergency measures as the circumstances require. It is unreasonable to insist that the Constitution's provisions bind the executive to neglect what, in a given circumstance, the survival of the nation exigently requires.
The jurisdiction of the Supreme Court of the United States generally extends to "all cases, in law and equity" arising under the supreme law of the land. This general grant of jurisdiction is a power to pronounce on what that law — including all its various components — requires in any particular case. To reach that decision, the Supreme Court may or may not have to expound on the general principles or substance of the law. But even when it does, such dicta fall within its power only insofar as they bear on the individuals and circumstances of the case or cases before it.
Contrary to the specious claim of power self-interested legal professionals often assert, the law is emphatically not "what the judge says it is." For where a body controls neither the content of the law nor the power to enforce decisions pertaining to that content, that body has, as Alexander Hamilton once observed, "neither force nor will but only judgment."
Contrary to the specious claim of power self-interested legal professionals often assert, the law is emphatically not 'what the judge says it is.'
That judgment may prevail upon the parties in any given case. But unless we are willing to erase the distinct lines of responsibility and obligation that define the existence of the separate branches of government, the judiciary's judgment cannot be allowed to prevail over the necessary and proper prudential judgments those responsible for the other branches of government are required to make, by their respective oaths of office.
In this regard, the president's sworn duty to protect and defend the Constitution in exigent circumstances and to faithfully to execute the laws may involve circumstantial and practical considerations that impose constraints no due process of law can be allowed to constrain. For if the nation is sacrificed in fact because the law's delay enjoined effective action, the plea that judges and justices scrupulously observed the Constitution, in theory, cannot justly compensate for the loss of our nation as a whole.
The prospect of such a tragic default of executive power led the first framers and ratifiers of the Constitution to approve the provision that makes Congress the judge of the president's behavior while in office. Though they rejected the tyrannical nostrum that "the King can do no wrong," they nonetheless made provision against the existential threats that must sometimes excuse action qualified as wrongful in ordinary circumstances. They allowed for the kernel of truth that gave rise to the observation: "Under arms, the laws fall silent."
Of course, the judiciary has a duty, under the Constitution, to hear and pronounce its judgment of the particular cases properly brought to its attention. But the president's duty to preserve and protect the Constitution, and perforce the nation it exists to serve, may — and sometimes must — override the judicial opinion. The president must do what his conscientious judgment of the nation's peril requires. For if leaving it undone it leads to our nation's fall, only its enemies will have good reason to celebrate such dereliction.
Whether we stand or fall, so long as we do so in good service to His will, our action is just. Perhaps that's why our motto rightly says, 'In God We Trust.'
However that may be, the Constitution makes the Congress the final arbiter of the president's prudential obligations. If and when the representatives of the people strongly dispute the president's judgment and can muster the political will to act against it, they alone have the power to impeach and remove him from office. But as long as one-third of the states' representatives support that judgment, the president can and must have the courage to do what he conscientiously believes the circumstances require.
Though this may sometimes involve actions otherwise contrary to the provisions of law, who but the people themselves have the right to say that their nation's survival does not justify such actions? Only the Supreme Judge and Creator of the World, Almighty God — from whose authority our claim of self-government derives. Whether we stand or fall, so long as we do so in good service to His will, our action is just. Perhaps that's why our motto rightly says, "In God We Trust."
Dr. Alan Keyes served as Assistant Secretary of State for International Organizations under President Ronald Reagan, and ran for president in 1996, 2000 and 2008. He holds a Ph.D. in government from Harvard, and writes at his website Loyal to Liberty.
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The prospect of such a tragic default of executive power led the first framers and ratifiers of the Constitution to approve the provision that makes Congress the judge of the president's behavior while in office. Though they rejected the tyrannical nostrum that "the King can do no wrong," they nonetheless made provision against the existential threats that must sometimes excuse action qualified as wrongful in ordinary circumstances. They allowed for the kernel of truth that gave rise to the observation: "Under arms, the laws fall silent."
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