Alan Keyes (In
defense of Terri Schiavo)
Posted:
March 24, 2005
9:00 am Eastern
By Alan Keyes
© 2010 WorldNetDaily.com
http://www.wnd.com/news/article.asp?ARTICLE_ID=43472
At this moment, former Reagan
administration official and Republican presidential candidate Alan Keyes is
in Florida's capital trying to persuade Gov. Jeb Bush to intervene to save
Terri Schiavo's life. In this in-depth essay, Keyes explains why "Terri
Schiavo's survival depends on Gov. Bush's faithful execution of [his]
responsibility, and the survival of American self-government on the
willingness of all those in a like position to faithfully execute the duties
of their high office."
Despite action by the Congress to
create an opportunity for the federal courts to review and correct the
violation of Terri Schiavo's most basic rights, the latest effort to prevent
her judicially sanctioned murder by starvation appears to be headed for
failure. This is just the latest and the most poignantly tragic instance of
judicial abuse tending to corrupt and destroy the moral fabric of the nation.
Despite the outward appearance of deliberation, what we witness now as an
ongoing feature of the conduct of the judiciary at every level amounts to a
judicial riot, in which judges and justices take it upon themselves to
disregard the prerogatives of the other branches in order to assert an
exclusive and tyrannical control of public standards and conduct. Why is this
happening?
The root of the problem is the
abuse of the power of judicial review. This played a role in the Schiavo
case, when the Florida State Supreme Court declared unconstitutional the
Florida Legislature's attempt to authorize protection for Terri Schiavo's
continued access to nutrition. But in a constitutional system based on checks
and balances, one branch can run riot only if some other branch fails to
exert the power necessary to constrain its actions within constitutional
bounds. This means that the rise of judicial tyranny represents a failure
elsewhere in the government. Now we know that in the Schiavo case, both the
Florida and the national legislatures exerted themselves in an effort to
secure her basic right to life. They failed because the judiciary has the
power to invalidate their actions, either in application or through the power
of judicial review. In the end, the constraint of judicial abuse is
especially the responsibility of the executive branch of government, since
the executive has both the opportunity and the obligation to act without the
interference of the judiciary, provided that in doing so he consults the
political will of the legislative power. Until and unless the people elected
to wield executive power in our national and state governments recognize and
act upon this responsibility, the judiciary will go unchecked, destroying the
balance of power among the branches and with it our system of free,
representative self-government.
The essay that follows reviews the
thinking behind the separation of powers argument that substantiates this
understanding of the current crisis of judicial abuse. Though it focuses on
the Schiavo case as a critical and currently urgent instance of this crisis,
it has a bearing as well on the judicial assault on marriage in Massachusetts
and the general judicial assault on public piety taking place through the
nation. The implication of the argument is clear: We cannot pin our hopes on
new judges to end this long era of judicial usurpation. We need chief executives
with the understanding, articulateness and courage to assert the executive
prerogative that will remind the judges that under our constitutional
principles neither the judges, nor the legislatures nor the executives may
claim permanent supremacy – rather it is the constitutional power of the
people that is superior to them all.
The
meaning of separation
These days the term separation of
powers is used as if it refers to a merely administrative division of
decision-making responsibility. This ignores the fact that the founders, and
the philosophers such as Montesquieu from whom they drew inspiration, presented
separation as a substantive requirement of free government. As Madison wrote
in Federalist 47, "The accumulation of all powers, legislative,
executive and judiciary, in the same hands, whether of one, a few or many,
and where hereditary, self-appointed, or elective, may justly be pronounced
the very definition of tyranny." No one of the branches of government
can have supreme and exclusive decision-making authority because no one
branch can, by itself, safely be allowed to exercise the whole power of
government in any circumstance. The legislature makes the laws, but is
powerless to execute them. The judiciary can decide cases in light of the law,
but has no authority either to execute decisions once taken, or control the content
of the law. The executive has the exclusive power of direct action, but no
lawful authority to act apart from the provisions of the laws and the
Constitution, or the specific judgments of the judiciary.
In order to be separate the
branches must be independent. Obviously this does not mean that in any case a
branch can simply act on its own authority, but it does mean that in every
case each branch must act on the bases of its own will and judgment. The
branches are subject to the laws and the Constitution, but they are not
directly subject to either of the other branches. The legislature, for
example, cannot simply dictate to the courts the outcome of any particular
case. Neither, however can the courts dictate to the legislature the content
of any law. The legislature can establish programs and mandates for executive
action, but cannot simply dictate to the executive the particular action to
be taken in pursuance of its legislation. Because each branch substantively
controls the power vested in it, the other branches cannot simply dictate the
use of that power.
In the division of the whole power
of government established by the Constitution, each branch has some ability
to prevent or interfere with the actions of the others. This is an inherent
consequence of the division of government power. The laws passed by the
legislature will be of no reliable effect if the executive refuses to enforce
them or the courts refuse to apply their provisions to the particular cases
that arise from them. Similarly, the executive may decide to act, but cannot
sustain the cooperation and support of the citizenry (including those who
comprise the enforcing arms of executive power) if the legislature refuses
legal sanction to its action. The court may judge, but must do so without
effect once the people realize that its actions have no basis in law, and/or
the executive offers its opposition or simply withholds its cooperation.
None of the branches can
effectively operate without the acquiescence or cooperation of at least one
of the others. Differently construed, we could say that no one of the
branches can sustain its authority when faced with the united opposition of
the remaining branches. This aspect of the U.S. Constitution reflects the
essence of law itself, which is a coercive rule made by and for the sake of
the whole community which applies to the individuals who in it. The
legislature, chosen by and representing the will of the whole people, makes
the rule. The judiciary, by its judgments in particular cases, applies the
rule. The executive, chosen by the people, represents its coercive force. In
the absence of any one of these elements, there is properly speaking, no law.
The separation of powers doctrine, by placing each of these elements under a
discrete authority, effectively precludes the existence of law unless by some
means all three of these elements are brought into play. Because by itself no
one branch has the authority to make the law, it can never be forgotten that
this authority rests ultimately with the people. They have constituted the
government. All three branches of government are subject to their will, as
expressed in the Constitution, and through laws made pursuant to its
provisions, and carried out by their constitutionally selected
representatives.
Because our constitutions give
each branch control over the power of government it represents, the
separation of powers works to assure that those who comprise the government
cannot act as if their will is the law. What one branch says, another may
negate, thereby withholding from its pronouncement on
of the essential attributes of law. By withholding cooperation, for example,
the executive may deprive both legislative acts and judicial decisions of the
force of law. But without coercive force, there is no law, properly speaking.
By the same token, if the judiciary refuses to apply the law in particular
cases, its provisions and penalties will not be applied to individuals. The
executive then has no authorization to act with respect to them, and the
legislation will have no particular effect. Obviously, if the legislature has
provided no pretext of legislation, except where the safety and security of
the Constitution or the people clearly require it, neither the judiciary nor
the executive can claim lawful authority for their decisions or actions.
Isn't this a recipe for paralysis?
Why isn't constitutional government hamstrung by the mutual negation of the branches?
In the U.S. Constitution, provision is made against this paralysis by giving
each branch a role in the superintendence of the others, thus acknowledging
that the existence of the law depends on their cooperation. A president, for
example, who acts in simple disregards the laws passed by the legislature, is
subject to impeachment and removal by the Congress. The trial of impeachment,
however, requires the active involvement and cooperation of the federal
judiciary, in the person of the chief justice of the Supreme Court. Without
the cooperation of the chief justice, a trial of impeachment cannot go
forward. Should the move for impeachment result from some transient passion
in the legislature, opposition from the court would check its initial fury. Of
course, if the legislature is determined to act, it might remove the obstacle
by impeachment and removal of the opposing justice, but since the president
must appoint his successor, such action would shift but not resolve the
impasse.
The need for cooperation in fact
and principle ought to provide a practical incentive for each of the branches
to secure, in any given instance, at least the passive acquiescence of one of
its coequals. There is of course no guarantee that even with this incentive,
paralysis and inaction will be avoided, but some degree of constraint upon
government action must be the intended purpose of a frame of government whose
ultimate aim is to forestall tyranny and protect the freedom of the people,
which is to say the right of the people to govern their own affairs. When
situations arise in which no effective cooperation can be achieved between
the branches, the determination of power shifts into the hands of the people
as a whole, who by their election of different persons to the legislature or
the executive can determine the balance of power one way or another, if they
please. If the people are not sufficiently united in their views, lawful
government action is precluded – which in effect represents a decision by the
people to leave matters to be determined by themselves in their respective
private capacities.
These reflections clearly imply
that the separation of powers is not a passive delineation of decision-making
responsibility. It is instead the constitutional consequence of the overall
objective of free government – to prevent the permanent consolidation of
government power under the control of one concerted will and judgment; i.e.,
to prevent tyranny. Separation is therefore not simply a doctrine established
by constitutional fiat, but a goal to be achieved, one that must be respected
if the people are to remain free. The attainment of this goal requires that
each branch of government actively assert and sustain its independent will
and judgment, while at the same time showing a prudent regard for the mutual
interdependence and cooperation required for effective government action. It
also requires that the people, whom Hamilton calls the "natural
guardians of the Constitution" (Federalist 16), hold their representatives
accountable for the performance of their duty in this regard, since
persistent failure in this duty represents the destruction of
self-government.
The
power of constitutional review
As a matter of logic and fact, the
founders assumed that the judicial branch would be the most vulnerable
participant in the dynamic interaction that establishes the substantive
separation of powers. In Federalist 78 Hamilton writes:
"Whoever attentively
considers the different departments of power must perceive, that, in a
government in which they are separated from each other, the judiciary, from
the nature of its functions, will always be the least dangerous to the
political rights of the Constitution; because it will be least in a capacity
to annoy or injure them. The executive not only dispenses the honors, but
holds the sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of every
citizen are to be regulated. The judiciary, on the contrary, has no influence
over either the sword or the purse; no direction either of the strength or of
the wealth of the society; and can take no active resolution whatever. It may
truly be said to have neither force nor will, but merely judgment; and must
ultimately depend upon the aid of the executive arm even for the efficacy of
its judgments."
This argument is clear and on the
face of it quite logical, but only on the assumption that the decisions of
the judiciary do not absolutely override the other branches. Obviously, if
the decision of the judge automatically binds the executive and legislative
branches, it would make no sense to say that the judiciary has no influence
over "either the sword or the purse." Its decisions would
necessarily determine the disposition of the one and the other. The
assumption that the judiciary has neither force nor will must be premised on
the notion that neither the legislature or the executive is simply subject to
the dictates of the judiciary. The other branches may check the judgment of
the courts when it comes to the disposition of that power of government
constitutionally allocated to their control. As we have observed already,
that check consists in the prerogative of each branch to take a stand on
constitutional grounds, and say no, refusing to submit to another in the use
of its constitutionally separate authority.
This clear logic meets with
resistance in our day because of the general acceptance of judicial review,
what Hamilton in the same paper refers to as "the rights of the courts
to pronounce legislative acts void, because contrary to the constitution.
..." The concept of judicial review has been used as the basis for a
doctrine of judicial supremacy, whereby both the legislature and the
executive must simply submit to the judgments of the judiciary, which claims
to have the sole authority to interpret the Constitution. Though unquestioned
today, this notion met with objections during the debates over the
Constitution, as Hamilton acknowledges, "from an imagination that the
doctrine would imply a superiority of the judiciary to the legislative
power." (Federalist 78)
In the paragraph that follows this
acknowledgment, Hamilton argues that "There is no position which depends
on clearer principles, than that every act of a delegated authority, contrary
to the tenor of the commission under which it is exercised, is void. No
legislative act, therefore, contrary to the Constitution, can be valid. To
deny this, would be to affirm, that the deputy is greater than his principal;
that the servant is above his master; that the representatives of the people
are superior to the people themselves; that men acting by virtue of powers,
may do not only what their powers do not authorize, but what they
forbid." In light of this reasoning, Hamilton quite logically maintains
that when the judges compare the provisions of any law to the Constitution,
"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." He continues, "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; …"
It is clear that in the exercise
of its powers, the judicial branch cannot avoid the situation Hamilton
describes, any more than it can avoid, as he later points out, the need to
choose between contradictory laws, or contradictory elements of a particular
law. In order to pass judgment in a particular case, the judges must decide
which law will govern, and Hamilton's argument as to the primacy of the
Constitution makes sense on the face of it. But advocates of judicial
supremacy overlook the fact that his argument from logic and principle
applies with equal force to the other branches of government in the exercise
of the powers allocated to them. If, for example, the chief executive confronts
a decision from the bench that conflicts with constitutional provisions as to
his powers and prerogatives, or those of the legislature, or those of the
people, he must give primacy to the Constitution, as the legislature must in
a similar situation of conflict. Each branch must conduct its affairs in
light of its responsibility to the Constitution, and indeed those persons who
comprise the branches are all of them sworn to do so. Thus, while Hamilton's
argument establishes the rationale for judicial review of legislative and
executive actions, it also establishes the rationale for executive and
legislative review of judicial decisions when those decisions affect
legislative and executive responsibilities to and for the integrity of the
Constitution.
But doesn't the possibility of
executive and legislative review of judicial actions fly in the face of the
fact, noted by Hamilton in Federalist 78, that "the interpretation of
the laws is the proper and peculiar province of the courts." If disagreement
arises between the branches as to the import of the Constitution or the laws,
doesn't the judicial branch have the prerogative of deciding what shall be
the authoritative interpretation? In the ordinary course of affairs, this
must be and is taken for granted, as Hamilton recognizes when he notes that
"to avoid an arbitrary discretion in the courts, it is indispensable
that they should be bound down by strict rules and precedents, which serve to
define and point out their duty in every particular case." This implies
that, though abuses are possible, the judiciary, by means of rules and
precedents, acts as the watchdog of its own discretion.
If we accept this as proof of the
ultimately supremacy of judicial discretion in every circumstance, however,
the consequence must be the utter subversion of the separate identity of the
other branches of government. Every properly human action involves the
faculty of judgment. Laws cannot be made, except the legislators make
judgments about what aims are proper and attainable, what means are suitable
and proportionate to the desired ends and so forth. Similarly, no executive
action can be taken without regard to the circumstances of action, whether
the times, the available resources, the legally established priorities and
the actual details of a given situation allow for effective action. In this
sense, though the judicial power of government may be vested in a single
branch, the exercise of judgment is inseparable from the operation of all the
branches. If in the exercise of executive power, the judicial branch may
without constraint substitute its judgment for that of the executive, it
subsumes the executive power, and so to with respect to the legislature and
the legislative power. Unchecked by potential opposition from the other
branches, judicial power necessarily becomes judicial tyranny. Since this
substantively defeats the whole aim and purpose of the separation of powers,
we must reject any understanding of separation that leads to this result.
Yet this is exactly what must
result if we accept the arguments of the judicial supremacists. The
Constitution, as it embodies the superior expression of the will of the
people, supersedes the momentary will of their agents or representatives.
Since any and every dispute over law and policy must be construed in light of
constitutional provisions, anyone who can claim to be the ultimate arbiter of
their meaning claims ultimate authority over the government as a whole. Yet
by arrogating to itself authority over the government as a whole, the
judiciary secures for itself a position superior to the Constitution itself,
which is to say superior to the will of the people as the ultimate authority
on which its legitimacy depends. Thus in effect, the judicial supremacists
overthrow the Constitution, acting much as the Grand Viziers of those Moorish
potentates in Spain, who, by securing the opportunity to be the sole
interpreter of the sovereign's will, substituted their authority for his,
making themselves the rulers.
It follows from these considerations
that, just as we must distinguish between substantive and procedural due
process, so we must observe the distinction between substantive and
administrative separation of powers. As a matter of administrative structure,
the judicial power is vested in the judicial branch. As a matter of
substantive constitutional integrity, each branch must retain and exercise an
independent faculty of judgment, especially with respect to its own
Constitutional rights and responsibilities. What must be obvious on the face
of it, moreover, is that matters of substantive separation are not justiciable, meaning to say they cannot ultimately be
decided by the courts. As Hamilton observes in Federalist 80, "No man
ought certainly to be a judge in his own case, or in any cause in respect to
which he has the least interest or bias." We must assume that the
judiciary will be biased in favor of its own power, and its own judgment
concerning the nature and extent of that power. This does not of course mean
that the courts may have no opinion on this subject. In fact, when
unchallenged by another branch of government their opinion will in any case
prevail. It does mean that the other branches must retain the right to
challenge and reject the opinion of the judiciary when it conflicts with
their own considered judgment especially with respect to their own
constitutional rights, responsibilities and obligations.
The
executive's role
Given the importance to liberty of
the fundamental constitutional principle that is at stake, and the
potentially grave consequences of carelessness or neglect in its regard, we
ought to proceed with great care in our application of the foregoing
reasoning and conclusions. Yet we must urgently forge ahead, as these days we
encounter practically at every turn some new evidence that the failure to
appreciate them has already allowed developments that represent the
tyrannical consolidation of governmental powers the founders rightly feared
and rejected. Contrary to their expectation, however, the greatest threat to
constitutional liberty, and indeed to the very fabric of free society as a
whole, has come from the judiciary, the branch of government Hamilton
regarded as the weakest and the least likely to achieve tyrannical control.
From education to prayer to
critical decisions affecting the most fundamental rights of life and public
conscience, our courts at every level now claim the right to impose their
views, as law, not only on individual citizens, but on both the other
branches of government. They have taken over school systems, dismantled
public monuments and threatened to subvert the substance of institutions such
as marriage, whose character has until now been unquestionably determined by
the legislative, not the judicial power. We must bear in mind, that our
constitutions, at both the federal and the state level, are all based on
republican principles, which is to say, on the idea that laws are properly
made by legislatures comprised of the elected representatives of the people,
and that act as such only by vote of a constitutionally prescribed majority.
If and when the opinions of judges, without proper basis in our laws or
constitutions, may claim to become law, the republican principle has been
subverted, and with it the right of the people to representative
self-government.
It is also clear that, unless the
people mean to abdicate their role as the ultimate source of authority for
our constitutional arrangements, they cannot accept the notion that judges
may indulge in any constitutional fancies they please, without regard to
reason, common sense or the moral sense and conscience of the people. When a
substantial majority of the people regards a judicial determination as an
unlawful abuse or usurpation of power, they are not obliged to acquiesce out
of respect for the mere form of legal judgment. As we have seen the
legitimate argument for judicial review does not "suppose a superiority
of the judicial to the legislative power. It only supposes that the power of
the people is superior to both. ..." The question is, when faced with
judicial abuse and usurpation, how can the people, by lawful and
constitutional means, assert their superiority?
In Federalist 79 Hamilton observes
that "the precautions for this [judicial] responsibility are comprised
in the article respecting impeachments." It would make sense to suppose
that consistent abuse of the judicial power in a way that subverts the
integrity of constitutional self-government would rouse public feeling and
lead to action on the part of the representatives of the people. When he
discusses impeachment in Federalist 65, Hamilton says of the court required
for this purpose that "the subjects of its jurisdiction are those
offences which proceed from the misconduct of public men, or in other words, from
the abuse or violation of some public trust. They are of a nature which may
with peculiar propriety be denominated political, as they relate chiefly to
injuries done immediately to the society itself." It is hard to conceive
of a more weighty public trust than the power to review the application, in
particular cases, of the laws, and to void acts of the legislature deemed
inconsistent with the provisions of fundamental law as embodied in our
constitutions. Impeachment offers itself as the natural remedy against judges
who insist on assaulting the liberty of the people by unjustifiably usurping
the prerogatives of their representative law making bodies, or ignoring
constitutional provisions intended to secure the rights of the people.
Unfortunately, in the present day
common sense has fallen prey to the self-serving arguments of the legal
profession to the effect that impeachment is intended to remedy only
statutory, not constitutional, violations. We are told that judges cannot be
called to account for the destructive constitutional effect of their
decisions, only for their petty criminal conduct. Crimes of limited effect
may therefore be acted upon, but those political crimes that tend to destroy
free society as a whole must not only be ignored, but treated with the
respect due to the law. This pernicious illogic may appeal to the instincts
of would-be Machiavellians, but it's hard to see how it makes sense for a
free people intent on remaining free.
Still, until more politicians
rediscover the clear common sense of Hamilton's understanding of impeachment,
it will continue to be an ineffective, indeed a non-existent recourse against
practitioners of judicial tyranny. Is there no other?
We may see the answer most clearly
in the context of a well-known situation in which the issue of judicial
prerogative and the separation of powers has played a critical role. In the
state of Florida a state superior court judge decided, despite a challenge
from her parents, that Terri Schiavo's husband should be permitted to remove
the tube through which she has been receiving nutrition after brain damage
left her in a helpless condition. The decision to starve her to death aroused
a firestorm of protest in Florida and around the nation, leading the Florida
Legislature to pass a law specifically intended to prevent implementation of
the judge's decision. The Legislature acted in support of Gov. Jeb Bush, who
felt that the decision to starve Terri Schiavo to death constituted a
violation of her basic right to life, a right specifically protected under
the Florida Constitution (Article I, Section 2). Thus, both the Legislature
and the chief executive agreed in the view that the judiciary's action
violated the Florida Constitution. The Florida judiciary disagreed.
Eventually, the Florida State Supreme Court declared the Legislature's act
invalid, mainly on the grounds that it violated the principle of the
separation of powers by encroaching upon the decision-making prerogatives of
the judicial branch.
If the actions of the Florida
Legislature and the state's duly elected chief executive are representative
of the people (and as a matter of constitutional principle they must be so
regarded), a constitutional majority of the people agreed with the view that
the Florida judiciary acted in violation of the state's Constitution. If, as
Hamilton maintains, the argument for judicial review rests ultimately on the
superiority of the people's constitutional will over that of subordinate
delegated authorities, can the Florida judiciary invoke the power of judicial
review to thwart the effort of the their representatives to assert and
safeguard their understanding of the Constitution?
In all fairness, however, that is
not exactly what the Florida Supreme Court did. It simply regarded the Legislature's
action as an attempt to overturn the judgment of the court in a particular
case. But it is the prerogative of the judiciary to decided particular cases.
If the Legislature can, after the fact, overturn particular judgments by law,
the legislative power would absorb the judicial power, destroying the
separation of powers required by our constitutional principles. Any
legislative action that simply reverses judicial judgment in a particular
case is on the face of it unconstitutional.
But the Florida chief executive
shared the Legislature's view. As governor, Jeb Bush represents a separate
government power, a distinct and independent governmental authority. As the
state's chief executive, he is sworn to uphold the Florida state
Constitution, an obligation that necessarily includes taking such actions as
are necessary to preserve, protect and defend the integrity of its
provisions. If by some circumstance he becomes aware of a situation in which
that integrity is being damaged, he is bound by his oath to act in its
defense. If, for example, he were notified that a court-sanctioned, racially
motivated lynching was taking place across the street from the state House,
he would be oath bound as chief executive to intervene to prevent the
violation of constitutional right and integrity. Even if a racist judge had
ordered the hanging, as chief executive he would have a responsibility to the
Florida Constitution making it impossible for him to respect the judge's
order, however well decked out in formal judicial garb.
In such a circumstance, if Jeb
Bush ignored the constitutional violation and later pleaded that he was
respecting the court order, his plea would have no more validity than the
plea of Nazi generals that they were only obeying orders. Indeed, his claim
would be more precarious, since the separate and independent status of the
Executive branch of government is a well-known and widely acknowledged
element of American constitutional principle. As Hamilton made clear,
judicial review invokes the superiority of the Constitution, as it embodies
the permanent will of the people, not the superiority of the judges or the
judicial power. Where the exercise of judicial power conflicts with the
Constitution's requirements, the Constitution must take precedence.
Of course, some may contend that
the executive must be bound by the judiciary's understanding of what is
consistent with the Constitution, but this cannot be accepted in a case where
the judiciary's opinion conflicts with the executive's deliberate and
conscientious view of his own constitutional obligations. As we have seen
above, there can be no separation of power where the judgment of one branch
as to its own responsibilities is simply subordinate to the judgment of
another. The executive's oath would not in that case fix responsibility for
the use or abuse of executive power. Just as the separation of powers
principle precludes legislative efforts to decide particular cases before the
judiciary, so it precludes any judicial claim to decide conclusively for the
executive how he fulfills the duty to defend the integrity of constitutional
self-government, including of course the rights of individual citizens. This
is particularly true when the executive is confronted with a conflict between
the will of the people as expressed in an act of the legislature and the
opinion of the judiciary that the act is unconstitutional. Just as the judges
and justices must follow the constitution rather than the law, so the executive
must follow the Constitution rather than the opinion of the judiciary, if he
believes that opinion requires him to go against the Constitution.
To be sure, the judiciary may then
declare its opinion that the executive's action is unlawful, but in American
constitutional practice the judiciary is not the branch that judges the
misconduct of the chief executive. That prerogative belongs to the
legislature. When the legislature and the executive agree on the
constitutionality of his actions, the judiciary has no authority whatsoever
to charge (i.e., impeach) or try the executive on account of them. Obviously,
this means that no judicial order can be executed against the chief executive
if he objects to it.
In the particular case involving
Terri Schiavo, some expressed the patently illogical view that Judge Greer's
injunction gave a county sheriff the right to resist action by Gov. Bush. But
this would mean that by judicial order, a state judge can claim to establish
an executive authority superior to the governor of Florida. However, the
Florida Constitution makes the governor the supreme executive authority in
the state. It also states, in Article 2 Section 3 of the Florida State
Constitution, that no branch can claim to exercise the powers of another. On two
counts the judge's claim contradicts the Constitution, and is therefore
without merit. Even if the judge claims to be acting according to law, no
combination of law and inferior executive authority can supersede the
permanent grant of supreme authority to the governor in the Constitution. If
this were possible, then the judiciary's claimed power of judicial review
would also fail, since it is based on the notion no law is valid that
conflicts with the Constitution.
Nor can we sustain the argument
the governor's action would violate prohibition against executive exercise of
the judiciary's power. If, as chief executive of Florida, Jeb Bush believes
that starving Terri Schiavo to death is a violation of her right to life, and
to defend her life, as recognized in the Florida Constitution (Article I,
Section 2), he has the same obligation to defend constitutional right as he
would in the lynching example. Unlike the legislature, he would not act to
overturn or reverse the action of the judiciary, but in order positively to
fulfill his direct constitutional obligation as chief executive, by
preventing the destruction of a citizen's most basic constitutional right.
Just as the courts have the initiative when it comes to deciding particular
cases, the executive has the initiative when it comes to the actual defense
of the Constitution and the constitutional rights of the citizens.
If, for example, prior to the
invasion of Iraq, the Supreme Court had, in the course of adjudicating a
case, issued an injunction against President G. W. Bush forbidding him to
order U.S. forces into Iraq, the order would have had no effect on his
constitutionally established power as commander in chief and his sworn duty
to defend the country and the Constitution. Deference to the court would mean
abdicating his authority as commander in chief, even as, by deferring to
Judge Greer, Gov. Jeb Bush abdicates his authority as supreme executive of
Florida. Either abdication implies a serious dereliction of duty.
Though it is indispensable for
effective government, there are undeniable dangers in the constitutional
grant of supreme executive power. However, when the initiative lies with the
executive, it is for the people, through their representatives in the
legislature, not the judiciary, to safeguard against executive abuses. If the
legislature and the judiciary agree that the executive is abusing his power,
the representatives of the people can charge the executive with the violation
of law, impeaching and if necessary removing him from office for his actions,
with no imputation of damage to the separation of powers. If on the other
hand, the legislature agrees with the executive, as the Florida legislature
did in the Terri Schiavo case, it can offer legislative support in his
defense against any maneuvers the judiciary may employ to impose its will. In
that case, the legislature will be acting to support the executive's defense
of the integrity of the Constitution, not interfering after the fact with the
judiciary's adjudication of a particular case.
Despite his protestations of
interest and conscience with respect to the assault on Terri Schiavo's
constitutional rights, Jeb Bush has failed to act on his clear and direct
responsibility to defend the integrity of Florida's constitution. Whether
from timidity or political calculation, he has pretended that legislative
action is required to authorize his action, even in the face of consistent
proof that the Legislature is powerless against a determined and literally
ruthless application of judicial prerogative. As a result, the nation and the
world have been witness to the spectacle of the slow, judicially mandated
murder of an innocent and helpless woman, while Jeb Bush's actions have given
credibility to the patently false impression that the judiciary has any claim
whatsoever to executive authority over the chief executive. His example, and
the false but pernicious precedent it offers, threatens the integrity of
constitutional government throughout the nation, especially given the natural
implication that President Bush tacitly approves of his surrender of
executive responsibility.
The law's delay must cost Terri
Schiavo her life, which is precisely the reason executive power in America is
entrusted to single executives, rather than to plural deliberative bodies.
When time is of the essence, necessity authorizes the executive to safeguard
the security of the Constitution and the people before citizens and the
polity suffer irreversible damage. Terri Schiavo's survival depends on Gov.
Bush's faithful execution of this responsibility, and the survival of
American self-government on the willingness of all those in a like position
faithfully to execute the duties of their high office. In times like these,
calculating politicians are not good enough. Enlightened statesmen are needed
at the helm. God help us if we do not soon choose to find them there.