Natural Rights, Civil Obedience, And Republican Government

Alan Keyes Former Assistant Secretary of State
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Part I: “Resistance to tyranny is obedience to God”

Sometime this year the U.S. Supreme Court is likely to issue an opinion dealing with the so-called right of homosexuals to marry. It’s very likely that a majority will vote to affirm it. After all, as Matt Barber reports “Both Kagan and Ginsburg have performed same-sex wedding ceremonies.

Ginsburg has at least three and maybe five such ceremonies under her belt, and she had the effrontery to perform one of them in the chambers of the Supreme Court itself. Kagan likewise performed a highly publicized same-sex ceremony for a former law clerk in Maryland just last September.” Justices Kennedy and Roberts are both of them identified as “swing votes,” this despite the assumption that Roberts is one of four GOP appointees many assume to be reliably “conservative.” But that assumption makes sense only if one uses the term carelessly, as when it is applied to people like Mitt Romney and Rudy Giuliani simply because they wear the Republican label.

Despite their obvious bias, it seems unlikely that Justices Kagan and Ginsburg will recuse themselves. In thus violating the requirements of judicial impartiality they demonstrate the profound lack of integrity now characteristic of many of the elitist faction judges steeped in the anti-constitutional doctrine that “the law is what the judge says it is,” which usurps the clearly delineated constitutional prerogative of the legislative branch. Even before it is formally decided upon, the evident partiality of these Justices will taint any decision in which they participate.

Added to this taint is the plainly presumptuous character of the Federal Judiciary’s assertion of jurisdiction in respect of matters pertaining to the institution of marriage. Nowhere in the U.S. Constitution is the power to deal with such matters simply delegated to the U.S. government. On the face of it, therefore, it would seem to be among the powers which the explicit language of the U.S. Constitution’s Tenth Amendment reserves “to the States respectively, or to the people.”

Of course, Article IV.4 of the U.S. Constitution requires the U.S. government to guarantee a republican form of government to every state of the union. From the moment when they made clear their determination “to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them,” the people of the United States have held to the truth that respect for the unalienable rights with which all human beings are endowed by their Creator is an indispensable criterion of lawful (legitimate) government. Indeed, “to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.”

The fact that the primacy of God-endowed unalienable rights makes the consent of the people a requirement for just government is the logical basis for the authority of the people. And it is from their authority substantiated, by this reasoning, at the highest possible level of sovereign power, that the U.S. Constitution derives its power as an instrument of government. This is why the Constitution’s articulated provisions are, in their voice and name, ordained and established.

The logical sequence is clear: People are endowed by the will of God with their unalienable rights. Each right is the power to act according to their nature, as the Creator has determined it to be. When they consent to act together to support an exercise of right, their action is therefore authorized and empowered by the Creator. Their consent therefore constitutes a power of government, deriving its justice (rightness), in each and every case, from the fact that it represents an exercise of power substantiated and determined (i.e., informed and limited) by the Creator, as the author of all, and the ultimate authority for the existence of all.

The authority of the people to govern themselves is thereby rooted in unalienable rights antecedent to all humanly established institutions of government. As they are informed and substantiated by the transcendent authority of the Creator, no human authority can lawfully alter or abolish these rights. As they are justly the source of government, no government acts lawfully when it violates or contravenes them. And people, when they resist such unlawful governmental acts, do no more or less than justice requires. This is why Thomas Jefferson was partial to the conviction that “resistance to tyrants is obedience to God.”

Unalienable rights are not fabrications of human governmental authority. As, in the republican form of government, the consent of the governed derives its authority over the law from the Creator’s endowment of their unalienable rights, what the government does with respect to those rights affects the constitutional sovereignty of the people. Any pretense of government that purports to have the authority to deny or disparage unalienable right usurps the authority of God, denying and disparaging the authority of the governed at its very source. This effectively overthrows the republican form of government as ordained and established in the United States.

This logic makes clear the logic and intention of the Ninth Amendment to the U.S. Constitution, which states simply that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  As I have elsewhere reasoned it through, this language acknowledges the existence of rights the people possessed antecedent to the Constitution. By forbidding any construction of the Constitution’s enumeration of certain rights that denies or disparages these antecedent rights, the language acknowledges and defers to an authority for government antecedent to the Constitution, and therefore antecedent to the authority of the people of the United States, whose sovereign will the Constitution expresses.

Logically, this must include rights of longstanding that existed, for instance, under the common law which applied to most of the people of the colonies when they were British subjects. But it must also include the rights of longest standing derived from the authority of the Creator, the unalienable rights that are the logical basis for the sovereignty of the people.