Alan Keyes
Trump can correct Reagan's most tragic mistake
Alan Keyes explains Justice Kennedy's 'errant constitutional jurisprudence'
By Alan Keyes
July 3, 2018

Ronald Reagan appointed Justice Anthony Kennedy to the U.S. Supreme Court on Sept. 11, 1987. In his nominating speech, President Reagan described the U.S. Circuit Judge Kennedy as "a true conservative – one who believes that our constitutional system is one of enumerated power – that it is we, the people, who have granted certain rights to the government, not the other way around.... Those three words, 'We the People,' are an all important reminder of the only legitimate source of the government's authority over its citizens...."

President Reagan proved woefully wrong about then-Judge Kennedy's alleged conservatism, at least in part because his description of what it means to be an American conservative was woefully inadequate. The Constitution of the United States is not premised on the notion that the people are "the only legitimate source of government's authority over its citizens" (emphasis added). When the people of the United States declared independence from Great Britain, they said they were entitled to do so because of "the laws of nature and of Nature's God." They upheld the truth that their unalienable right of liberty (self-government), and of all the other unalienable rights humanity entails, are endowed by the Creator, God.

Furthermore, they upheld the truth that "to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." Now, by the act proclaimed in the Declaration, the people making it abjured the governmental authority of the British monarch. But until their Declaration of Independence, the United States did not exist as such. Therefore, no government of the United States could yet exist to wield power over its people. (The Articles of Confederation were not adopted by the Continental Congress until November 1777 and were fully ratified much later than that.) Thus, at the time the people made their Declaration, the phrase "consent of the governed" made no sense except in terms of the government of God, to whose laws (and lawmaking authority) the people of the Untied States appealed for their right to exist as an independent nation.

The people themselves thus acknowledged that they are not "the only legitimate source of the government's authority" over them. They acted as citizens of the Kingdom of God, according to His endowment of rights intrinsic to their humanity, and pursuant to the obligations those rights entailed. By this concerted use of the power naturally vested in them by God, they consented to enact (that is, act according to) His laws, by which voluntary enactment of the Supreme Sovereign's will they proved the legitimacy of their self-government.

Thus, their self-government, later enacted in constitutional form, derived its just powers from the people's consent to be governed by God's will, and not their own. Like many others, President Reagan missed this point when he spoke as if they were themselves alone the source of their self-government's legitimacy. Tragically for our nation, he also missed it in his choice of Justice Kennedy. In what may prove to be the most fatefully important cases in the history of our nation, Kennedy upheld, or participated in inventing, errant constitutional jurisprudence with respect to abortion and homosexual marriage. This jurisprudence errs precisely in disregarding the standard of God's will, without which the self-government of the American people is bereft of legitimate authority.

With Justice Kennedy's retirement, President Trump has the opportunity to correct President Reagan's tragic mistake. He has the opportunity to ponder and respect the requirements of a government framed to wield, on behalf of the American people, the just powers of their self-government, which derive their justice from our consent to be governed by a natural, not humanly arbitrary, standard of right, endowed by God; and of justice, established by His law.

If he does so, President Trump will look beyond the hollow understanding of our Constitution that mistakes it for a shallow assertion of self-willed democratic power. He will look for people who understand that the people of the United States came into existence as such with due regard for the laws of God that determine and that are supposed to govern human nature for our good. Government limited by this due respect for God's rule serves justice even as it serves and preserves the rights involved in each person's observance of God's determinations.

Justice Kennedy simply abandoned this thoughtful, principled conservative view. Instead, he joined the irresponsible leftists who promote a specious idea of "liberty" as the unlimited freedom "to define one's own concept of existence, of the universe, of the mystery of human life." This is an understanding of "right" that is false on the face of it, since it involves acting as if we are the authors of our own existence, fully knowledgeable of its complexities and implications, with no need to be mindful of our ignorance, our corrupted passions, our pathetic tendency to hunger selfishly for power – without working to attain the self-discipline required to use it, not just for our own purposes, but for the common good of all.


© Alan Keyes


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