Tag Archives: Kim Davis

“An Injustice That Rejects the Moral Basis for Government”

If you would like to take a semester course on federal and state constitutional powers simply by reading a short essay, get something to drink and set aside 15 minutes and read my good friend Alan Keyes' brilliant summation below. It is in response to a question of whether or not Article 6 of US Constitution could be used in favor of Kim Davis.

Article 6 religious test prohibition applies to “any office or trust under the United States”.  Kim Davis’s office is not “under the United States.”  She holds an office under county government.  

The power to make laws respecting a religious establishment, including a religious test for office, is reserved by the 10th Amendment “to the States, respectively, or to the people.  Therefore, Article 6 does not apply to them, or to the offices they establish, absurd jurisprudence misconstruing the 14th Amendment notwithstanding. 

The 14th amendment cannot be construed to extend the 1st amendment’s establishment clause to the States, since doing so gives rise to a logical absurdity.  The 14th Amendment’s language requires that States refrain from executing laws that abridge the privileges and immunities of citizens of the United States.  But on account of the 10th Amendment’s reservation of powers clause the power to make laws respecting an establishment of religion is reserved to the States, respectively, or the people. It is therefore included among the privileges and immunities of U.S. citizens that the States are required by the 14th amendment to refrain from infringing.  Construing the 14th Amendment in a way that applies the 1st Amendment’s establishment clause to the States leads to a result that requires the States, at one and the same time, to do and refrain from doing the same thing, since a State’s refusal to enforce legislation on the subject of religious establishment would abridge the power the 10th Amendment makes it the privilege of the States, respectively or the people to exercise.

This is absurd.  To avoid the absurdity the 14th Amendment would have to contain language that explicitly removes the power to make laws respecting religious establishment from the 10th Amendment’s reservation of powers, or else the 10th Amendment would have to be altered or repealed.  Neither condition is true. Therefore, the purported construction  of the 14th Amendment fails.

The real question therefore, is not a 6th Amendment issue.  The real question is, how does Kim Davis come under the jurisdiction of a Federal judge, an officer of the United States government, when the Constitution prohibits Congress from making any law respecting (i.e., on the subject of) an establishment of religion.  If Congress can make no law on the subject, and that is all the Constitution says about it, what lawful basis is there for the U.S. Judiciary’s involvement? 

The Judges and Justices of the U.S. Judiciary assert jurisdiction over the issue of marriage on the excuse that a violation of Constitutionally protected right has taken place.  But where there can Constitutionally be no U.S. law, the right involved must be a) explicitly stated in the Constitution; or b) antecedently possessed by the people as per the 9th amendment.  But the Constitution explicitly recognizes no homosexual right to so-called marriage.  No such right existed under common or any other antecedent human law applicable to people living in the U.S. at the time the Constitution was adopted.  The only other rights clearly antecedent to the Constitution recognized at the time of its adoption are the unalienable rights, endowed by the Creator, recognized in the Declaration of Independence.

But no rationally valid argument can be made for the proposition that homosexual marriage is a God-endowed unalienable right.  Such rights are the consequence of the “laws of Nature and of Nature’s God”. Homosexual behavior has no basis in natural law.  Advocates of normalization have tried to develop scientific evidence that homosexuality has a genetic basis. They have consistently failed. 

Even if they had succeeded, however, the mere fact that human beings have the natural impulse to engage in an act, sexual or otherwise, doesn’t make it right.  Unlike skin color, human passions, however natural, are susceptible to self-conscious control in light of human conscience.  On account of that capacity, people driven by passion to rape or even murder others cannot simply claim that sexual lust or anger, both of which have a genetic basis, absolve them of culpability.  They have to demonstrate that their capacity for self-conscious self-control was materially impaired.  But the notion that homosexuality is the result of material impairment is precisely what its advocates have rejected, in recent years, as bigotry.

So they are reduced to arguing that it is a matter of love.  But love does not, in and of itself, give any particular act of love the status of unalienable right.  That status requires a basis in “the laws of Nature and of Nature’s God”, as made clear by the Creator’s endowment of human nature.  But which of the Creator’s commands, encoded in human nature, requires homosexual relations for the natural good of humanity?  Heterosexual procreation satisfies this requirement, which is why human law is obliged to respect the institutions based upon it.  In what way do homosexual relations satisfy it?

Unless they can provide an answer to this question no human officials can pretend that homosexual relations are an exercise of unalienable right. Any assertion of right in their regard is a specious fabrication. The individuals responsible for it are abusing their power as government officials. They are denying and disparaging the unalienable right that is the basis for the natural family.  This they do by equating that right with an exercise of freedom that can claim no sanction in the “laws of Nature and of Nature’s God”, insofar as those laws define and govern human nature. But this denial and disparagement of antecedent right IS prohibited by the Constitution’s 9th Amendment. It is an injustice that rejects the moral basis for government deriving its just powers form the consent of the governed.  In effect it abandons the premise of constitutional government in the United States.

We must reject the forceful imposition of homosexual marriage as an abuse of government power that violates the Constitution’s 9th amendment.  We must reject it because it abandons the true understanding of unalienable right that is the basis for the Constitutional self-government of the people of the United States.  For the life of me, I cannot understand why these simple and plainly reasonable conclusions, firmly rooted in the history and practice of the people of the United States, and critical to every fight for equal justice in our history, are being unaccountably resisted by the very people who claim to oppose the abuse of government power to enforce the normalization of homosexuality.  In terms of unalienable right this abuse of government power is an injustice more palpable and egregious than the imposition of taxation without representation that led America’s founding generation to rebel against British rule.

Are the principles of the Declaration of Independence now so universally despised and rejected?  Are the people who profess to hold to those principles now so thoroughly brainwashed by the lie that drives God from His position of authority over human justice (the falsely argued doctrine of the separation of Church and State)?  Are they so thoroughly devoid of the courage of America’s founding generation, rooted in Christian faith, that they fear to stand on the ground of God-endowed unalienable right? Is their fear of the travail of defending it at the risk or cost of their lives and fortunes, greater than their trust in the Supreme Judge of the World?  Are they so devoid of faith and trust in the righteous power of their Creator, and the Word through which He exerts that power, which is Jesus Christ?  What other reason is there to avoid taking a clear stand on the high ground of moral principles authorized by God, reason and the Constitution.  Those principles justify Kim Davis’s actions. Those principles demand, that every true American share her determination to refuse the tyrannical commands of government officials who have now egregiously abandoned their duty to preserve the constitutional republic founded upon them.


Alan Keyes

Please visit Alan's blog, Loyal to Liberty 

Alan Keyes on Marriage

In an email this past summer, my dear friend and mentor Alan Keyes gives a constitutional lesson on why the government mandates biblical marriage. In light of the Kim Davis jailing, I thought my readers would find Alan's words enlightening:

It saddens me that so many people who profess to be Christian and conservative display so little understanding of the premises of just government the United States is founded upon.  In particular, they have no understanding of the meaning of “unalienable right”, and the principle that securing that species of right is the reason government exists.

An unalienable right is exactly what the words imply- an action or activity that accords with the decisions God made about the way we are supposed to be (keeping in mind that this refers also to our behavior, the ongoing activity of our existence) when He created humanity.  The Declaration is clear that right is endowed (filled with its substance) by God.  His will, therefore, is the standard for right.

God’s first instruction, programmed into our nature is: Be fruitful and multiply, and replenish the earth and subdue it..”

Marriage is a God-endowed natural institution, provided for by the differently informed appearance of man and woman. The Bible portrays God’s institution of that difference as the occasion on which Adam became conscious of the being like himself in nature- i.e., he displayed the distinctive feature of our understanding we call “self-consciousness.”  Aside from its consequences for human moral responsibility and association, this is the basis for the conscious recognition of our belongings, which we see when Adam describes the woman as “bone of my bone, flesh of my flesh”.

I follow this train of thought in order to point out that a) pro-creation is God’s primordial rule for human nature, first in order of time as portrayed in the Bible. b) As it secures the perpetuation of the species, according to God’s will, procreation exactly fits the paradigm of natural, unalienable right- i.e., behavior in accordance with God’s will for the good of humanity, in particular and as a whole. c) marriage is the institution established by the consensual choice of a man and a woman to act in accordance with God’s rule, i.e., exercise the right action it prescribes. d) the founding principle that government is instituted to secure unalienable rights therefore requires that government recognize and safeguard the institution of marriage and its consequences, including of course the authority and responsibilities associated with child-rearing.

Once we see this, we realize that it’s contrary to the fundamental premise of rights for governments in the U.S., at any level, to endanger the heterosexual, marriage based family.  The right actions family life by nature entails are self-evidently among the rights retained by the people, which the Constitution’s 9th Amendment forbids the U.S. government to deny or disparage in any construction of the enumerated rights the Constitution contains. (i.e., no right arrived at by construction of the enumerated rights can be used as an excuse to deny or disparage such retained rights.)

Two things follow from this reasoning: a) As such, all just governments must respect the unalienable rights involved in the institution of marriage, and the family life derived from it; b) in particular, the constitutional government of the United States is prohibited from denying or disparaging those rights.

Note well- This involves a positive obligation of government.  If it fails to carry out this obligation, it is no longer just and lawful government.

Thus, in principle, government in the United States can’t simply get out of its responsibility toward the heterosexual marriage based family.  Moreover, it doesn’t take much imagination to see the chaos that must result if we adopt the specious notion that family is whatever people say it is, i.e., has no authoritative natural form or basis.  Just as it is now asserted that Bruce Jenner is a woman according to his own will, so it will be asserted that my children belong to whoever has the will to claim them, and the power to back it up.  Think this through, and it becomes clear that the eventual result is the assertion that all children belong first of all to whole community, represented by the state, which must in any case decide who shall resolve disputes over responsibility for their care and upbringing.

Many so-called conservatives fail even to embark upon the thinking required to see these totalitarian consequences because they have blithely accepted the self-evidently false notion that right and freedom are synonymous.  Every unalienable right involves the freedom to act (on account of the permission of the ultimate sovereign, the Creator, God).  But not every exercise of freedom can claim the name of right. In particular no action that impairs/violates right as God endowed it, can claim that title.

Thus, the issue at stake in the marriage debate is the nature of unalienable right, and the security and care government is obliged to show for rights that correspond to it.  So when the GOP quislings surrender to the USSC’s abuse of judicial power, when they acquiesce in the fabrication of homosexual rights that deny and disparage the unalienable rights of God-endowed family, what they do is not just about sexuality, marriage, or “how people love one another”.  It’s about either preserving, in reason and policy, the foundation of right, rights, justice and true liberty- or letting a depraved but powerful clique destroy that foundation so that constitutional government of, by and for the people, is effectively overthrown.

The choice isn’t between Republicans and Democrats.  It’s between preserving the Republic and letting it be destroyed.  If being a loyal Republican requires that we passively accept complicity in its destruction, how can anyone pretend that this is pragmatism?  Some years ago people had some excuse for not seeing that the destruction of our constitutional liberty is already so far advanced it may be irretrievable.  Faced with the bipartisan implementation of polices (Obamacare, the trade package, homosexual marriage) that openly institute the tyranny intended to replace true liberty, “pragmatism” becomes just a paltry excuse for surrendering to fear and helplessness.  With hearts like that, the United States would never have existed.  With hearts like that, it must cease (and is already ceasing) to exist.

Better, as Adams opined, to give all in the seemingly outmatched cause of justice, than to live, and see posterity live, as slaves to a regime of unnatural, God-rejecting lies where justice is subsumed, and conscience suppressed, by the abusive idolatry of material power.

Alan Keyes
June 18, 2015
Loyal To Liberty