Under The Constitution And God, The People Are The Arbiters Of Government’s Power

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Alan Keyes Former Assistant Secretary of State
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[Part One of this essay appeared at barbwire.com earlier this week]

The resolve to do right according to God can and did impel Americans to endure war (on the battlefields of the Revolution and Civil War, for example). They risked and gave their lives to testify to God’s truth regarding justice and rights, including liberty.

But in the Christian understanding, the outcome of battle does not substantiate the truth. God’s authority does that. The battle is simply an opportunity to bear witness to the truth, leaving the outcome in God’s hands. For, sometimes, victory presages the enactment of earthly laws respectful of God’s will; and sometimes the spectacle of good faith, kept even unto death, presages the resurrection to hope and true life for those whose hearts God opens through the sacrificial testament of martyrs.

The leaders in statecraft of America’s founding generation appreciated the importance of faithful witness to truth in both respects.

They, therefore, envisaged a nation whose people would not shrink from defending justice and rights in arms, if need be. But they also expected them to be people who would have the moral courage to uphold God’s standard of right in contests decided by deliberate choice, made after appeals to reason, conscience and common sense, affected by the God-endowed natural inclination to do right.

The U.S. Constitution divided and distributed the power of government among three different branches, all of them fed, directly or indirectly, and for good or ill, by the will of the people as a whole. The writers discounted the possibility preponderance of goodwill as necessary to reflect the countervailing human tendency to abuse freedom whenever excessive power tempts people to deny and disregard God’s rule. So, they left, to each branch of government, some portion of power with which to stymy and rebuke the unruly abuses of one or both of the others.

The Executive branch, embodied in one person, has the initiative to take action as the laws and exigent circumstances require, consistent with the responsibility imposed by the permanent will of the people, expressed in the Constitution. But when the consequences of such action appear to violate the provisions of the Constitution, and the premises of right they are supposed to secure, the small group of people vested with the highest Judicial power of the U.S. government can interpose their objection to such abuse, in any given case.

They must, however, cite the words of the people, expressed in the Constitution, that substantiate their objection. The Judiciary has this same power of interposition in particular cases, in respect of any laws passed by the legislature.

As Hamilton writes in Federalist #78, when one branch comes into conflict with another, “the Constitution ought to be preferred… the intention of the people to the intention of their agents.”

But when some dispute exists about the expressed intention of the people, this reasonable maxim implies that the people themselves, from whom the Constitution derives its authority, must be consulted as the ultimate arbiters of the separated powers of government, all of which justly derive from the consent of the governed.

As I have pointed out in several previous articles, when it comes to the President’s pardoning power, the relevant constitutional provision says: “he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Even without recourse to researchers among the records, letters and other indicia, still extant, of the people’s intention throughout our history, the Constitution’s provision for the pardoning power refutes President Trump’s claims of an absolute right to pardon himself. His pardoning power is not absolute, for any case of impeachment is excluded from its purview.

A president impeached by the House, then tried and adjudge guilty by the U.S. Senate, could not escape the penalties entailed (removal from office and disbarment from holding any future office under the U.S. Government).

But in any case, the president’s pardoning power comes into play only regarding offenses against the United States. Any president foolish enough to pardon himself would first have to admit that he had committed such offensives.

In light of that admission, he could not pardon himself since the power Constitutionally to allege, try and judge the offenses the President admits committing rest in the hands of the U.S. House and Senate respectively, subject to the participation of the Chief Justice of the Supreme Court, as the Constitution directs.

In his tweet, President Trump avoids this self-convicting folly when he says plainly, “I have done nothing wrong.” But it is not impossible, or even hard, to imagine circumstances in which the president has to order or take responsibility for actions that violate the laws, including the Constitution, in order to deal effectively with exigent circumstances that threaten the Constitution. Given his oath of office, he would have grounds for protesting that he did nothing wrong.

He also certainly has the power to pardon the agents whom he orders to carry out such actions, thus protecting them against due penalties of ordinary law.

Since the Constitution, however, withholds his pardoning power from all cases of impeachment, any U.S. government officials who carry out his orders could still be impeached and removed by Congress for “high crimes and misdemeanor,” as the Constitution provides.

It is reasonable to assume that our nation has no intention of extinguishing itself, or the God-endowed rights of the people who comprise that comprise it. In light of the Constitution, we, the people also have no intention of extinguishing our union, our common defense, our domestic tranquility or any other of the Preamble’s goals for the Constitution.

If the President acts successfully, though in violation of law, to prevent the wholesale extinction of these, our common belongings. It would then make sense for every member of the U.S. House and Senate to clap their hands in approbation of his actions, refusing the vote to accuse, convict or penalize him.

Thus, the Constitution passes the power to pardon the President’s oath required actions to the Congress.

But what if those who are supposed to represent the people in their self-government fail of their duty? What if they do so in to join or countenance treasonous attacks against the people and their Constitutional self-government? What then?

Then, the day will have come for the people of the United States to act, if they still can, since “it is their right, it is their duty, to throw off such Government.” Then, they should appeal to God and stand in witness, defense and expectation of His justice. Let us pray for God’s deliverance from such an evil day, or else His saving Grace upon those called to uphold His standard of right in spite of it.

Dr. Alan Keyes is a political activist, prolific writer, former diplomat, and the founder of LoyaltoLiberty.com

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.