Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
From his latest Worldnutdaily column:
Though consent is the sine qua non for the government's exercise of just power, consent is not the substance of justice. That substance consists in the Creator's provision of unalienable rights as an aspect of human nature. The governed may choose from among the range of government powers that secure these rights (government's "just powers") those which are suitable to their circumstances. Unjust powers of government (those that do not serve the goal of securing their unalienable rights) are not legitimized (made lawful) by the consent of the governed. So, though it is an essential feature of republican government, the sovereignty of the people is not absolute. It is subject to the Creator's prior provision for justice, to the higher law constituted by His will.
This is a standard theocratic interpretation of the Declaration of Independence. Yes, it invokes the concept of inalienable rights to liberty and the pursuit of happiness, but it says that we are endowed with those rights by the "Creator." And since the "Creator" must be the Biblical God, the limits of those rights are defined by the Biblical commandments; if the Bible says you aren't supposed to do X, there is no inalienable right to do X.
Of course, this argument is wrong at every step. When Jefferson invoked "the Creator" in writing the Declaration, he was not speaking of the Biblical God, a being he rejected as being "cruel, capricious, vindictive and unjust." And he certainly did not believe that the limits of liberty were determined by the moral rules of the Bible, which he rejected as divine revelation.
And even if he had been referring to what Keyes thinks he was, imagine the society in which the government enforces the full Biblical moral code. Women who are not a virgin on their wedding day would be stoned to death. Unruly children would be put to death, along with "witches" and anyone who attempts to convince someone to follow another religion. That's called a theocracy and it is the antithesis of any sane conception of a free society.
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"imagine the society in which the government enforces the full Biblical moral code."
We don't have to imagine it-Keyes is free to leave for Iran or Saudi Arabia whenever he would like. I'll even chip in for airfare.
Posted by: JusticeLeague | October 5, 2009 9:46 AM
Keyes, and
JudgeRoy Moore have been making this argument for years. Therefore there should be some rebuttals by either Keyes or Moore after being confronted with a point Ed makes here among others that quickly come to mind, e.g., Establishment clause limitations on defining whose creator and therefore defining what creator's rights/limitations/prohibitions, lack of evidence for a god let alone what numerated rights/limitations/prohibitions extend to us, etc. in that vein.Obviously Moore and Keyes believe they know whose god and who gets to decide what rights and limitations and prohibitions he's supposedly imposed on us mere humans. My interest lies in Keyes' (or others') rebuttal when confronted with the problems Ed and I list.
If anyone has such a link available that would be great to see. I find Keyes highly entertaining in small doses. I'll search later today if I have some time.
Posted by: Michael Heath | October 5, 2009 9:47 AM
So, though it is an essential feature of republican government, the sovereignty of the people is not absolute. It is subject to the Creator's prior provision for justice, to the higher law constituted by His will.
In other words, the will of the people is subordinate to the small cadre, the elite in the vanguard party, the priesthood who will tell the rest of us just what this "higher law" consists of.
Posted by: Chiroptera | October 5, 2009 9:55 AM
Someone should remind Keyes that the D of I is not the law of the land - the Constitution is. And nothing in the Constitution comes close to what Keyes is saying.
Posted by: Taz | October 5, 2009 9:59 AM
Too bad for him that our government and laws are based on the Constitution (with its pesky 1st Amendment) and not the Declaration of Independence.
Posted by: Ericb | October 5, 2009 10:00 AM
The focus in the statement "that they are endowed by their Creator with certain unalienable Rights" is not on "creator" but on "unalienable."
The language used in that statement comes almost directly from Edward Coke. Most of the founding fathers (the ones that were lawyers at least) were heavily read in Coke, and used a lot of his ideas.
In guiding the creation of the Petition of Right Coke chose to adopt the argument that all of the rights he was creating were in fact pre-existing rights, that the petition was merely enshrining in legislation. To do this he looked back to the Magna Carta, which was at it's heart a contract between certain nobles and King John.
The nobles agreed to alienate certain rights, (Their rights to oppose the king as a political leader in essence) but forced the king to admit the nobles were retaining other rights. (Unalienated rights)
Coke, using much of the same reasoning he used in Dr. Bonham's case, essentially argued that in a consent style of government, not only are there certain rights that are not alienated, there are rights that can not be alienated, because to do so would invalidate the contract. Hence "inalienable" rights.
Posted by: Ben P | October 5, 2009 10:08 AM
While the Declaration isn't law of the land, I think it would be fair to say that it does contribute to the "manifest tenor" of the Constitution. Of course, the anti-"activist judges" contingent ignore the role of the court to strike down legislation contrary to that manifest tenor, so they still can't really use the DoI to support their cause.
(I can't remember who described the courts' role like that, was it Jefferson? Adams? I've seen you refer to it a few times, Ed.)
Posted by: hellocthulu | October 5, 2009 10:21 AM
My response to all the religious ninnies, be they Keyes or the Phelps clan is this: Prove it.
Until you prove there is a creator, and that you do indeed represent his will, then your opinions are no more than the ranting of a crazy person, who believes in an invisible superman in sky.
We need to stop accommodating these superstitious morons.
Posted by: Comixchik | October 5, 2009 10:36 AM
Actually it says "their Creator" which is different than "the Creator".
Posted by: Reed A. Cartwright | October 5, 2009 10:38 AM
Ben P @6
Nice summary. I will have to look Coke up as my history lessons so far have missed him entirely. Keyes too seemingly but most of what he says is wrong or stupid or both. That's what qualifies him to write for WND.
Posted by: MikeMa | October 5, 2009 10:46 AM
Ed, this passage doesn't sound all that different from your conception of the relationship between statutory law and "natural rights", except for the "Creator" bit, at least as I remember it. Would you care to elaborate on the differences?
Posted by: Ginger Yellow | October 5, 2009 10:50 AM
Now if you limit your statement to "contributing to the manifest tenor of the Bill of Rights" (which we have because of antifederalist opposition to the Constitution as originally drafted), then I think they would agree.
Posted by: James Hanley | October 5, 2009 10:55 AM
This is, unfortunately, becoming a growing problem among right-wing politicians. Now that Rick Santorum has joined the race for 2012 he's joined Mike Huckabee in seeking to dismantle our Republic.
Santorum: "right to privacy...doesn't exist in my opinion in the United States Constitution."
Huckabee: "I have opponents in this race who do not want to change the Constitution. But I believe it's a lot easier to change the Constitution than it would be to change the word of the living god. And that's what we need to do -- to amend the Constitution so it's in God's standards rather than try to change God's standards so it lines up with some contemporary view."
Read more here.
Posted by: EMJ | October 5, 2009 11:37 AM
Regarding making the DOI the law of the land, I wonder if Keyes and his right-wing pals really want to go there. You could make a pretty decent case that "life, liberty and the pursuit of happiness" are impossible without the basics of economic justice, at a minimum a guarantee of food, shelter and health care. It's hard for a hungry, sick, homeless person to aspire to anything approaching the Jeffersonian ideal.
Posted by: JusticeLeague | October 5, 2009 11:37 AM
"Unjust powers of government... are not legitimized... by the consent of the governed."*
Okay Alan, if you want to make a theocracy that's fine. Just like you (as quoted above), I will believe that any law I think is unjust, I can withdraw my consent from thus rendering it not legitimised, and so powerless to affect me. Simple.
Or perhaps you meant only the 'creator'^ can legitimise a government's unjust powers?
You voluntarily worship an unjust 'creator'? - DJ
_____________________________
*I removed the parenthetical explanations for clarity.
^as opposed to those governed by the 'creator'
Posted by: DingoJack | October 5, 2009 12:01 PM
In other words, the will of the people is subordinate to the small cadre, the elite in the vanguard party, the priesthood who will tell the rest of us just what this "higher law" consists of.
Convenient that Keyes, as a Knight of Columbus, just happens to be part of this cadre, eh?
Posted by: dogmeatIB | October 5, 2009 12:46 PM
Michael, I believe this quote shows how Keyes attempts to wriggle around the Establishment Clause:
http://www.wnd.com/news/article.asp?ARTICLE_ID=34270
In essence, he ducks the problem of forcing non-believers to live by the tenets of a religion by claiming that it is superseded by the rights of the majority to establish the form of (Constitutional) government they prefer. As long as the government doesn't force people to actually believe in something, they can make any laws they like based on a Biblical premise.
Thus, I assume, if the majority wants to enact laws like engaging in homosexuality punishable by stoning to death, Keyes would see that as entirely Constitutional. After all nobody is forcing the gays to worship a God they don't believe in, or even not to be gay, they're just expected to abide by the laws of the land, and not have gay sex. I doubt that even the "cruel and unusual punishment" clause would be much of a problem. After all, if God is happy to see Sodomites burned to death in a hail of fire and brimstone, then what's a lethal injection or two between friends?
Posted by: tacitus | October 5, 2009 2:19 PM
Like to do a "got punked" episode where Keyes is put in chains as it is explained to him that the bible sanctions slavery; and his southern africa heritage excludes him from any possibility of being a member of even the lost tribe of Israel, everyone knows they went to Britain.
Posted by: The Pale Scot | October 5, 2009 3:06 PM
tacitus @ 17 - thanks a load, I owe you one.
My understanding is also yours with a few additional observations:
Keyes avoids dealing with the 14th Amendment and the equal protection clause. In addition, Keyes argues for what most theocrats support, a narrow reading of the Establishment Clause. Where he strays even from most Christianists is that he's also arguing for a narrow reading of the religious freedom clause, so narrow its appears to be almost non-existent. In fact much so one could argue he's a reconstructionist in effect if not name. It'd be interesting to see comments about any associations he's had with them. I'd bet not much, he appears to favor dishonest revisionism of the DofI and Constitution like a typical Christianist or social conservative rather than open rebellion to both documents like the true-blue reconstructionists.
While Keyes has proven over and over again he's got no electoral chance to win office, I still view him as a threat. My concern about Christianists is the slippery slope syndrome. Given their fealty to the Bible, which has horrendously extreme measures for how government and the faithful should treat others, they open themselves up to an increasing openness to a death of liberty by a thousand cuts.
We saw this to some extent when social conservatives were feeling their oats after their big victory in 2004 where talks about constitutional amendments to prohibit abortion and gay rights were increasingly coupled to the next step - prohibition of birth control (where I'm cognizant that even social conservatives are not generally supportive of such strictures).
I bring this up because once you committed yourself to government by a literal reading of the Bible, you develop a paradigm that allows you continually wear on the populace to actually follow through with such over time based on replacing our "We the people" and "perfecting the union" with a focus on fealty to God's Law [sic].
So while Bush was certainly not a theocrat, his legacy if he'd been successful could very well have been to create opportunities for legitimate proto-theocrats in the future; creatures like Rick Santorum, Mike Huckabee, or Sam Brownback as the face of the party but whose prophets are people like Keyes and Moores loaded with ample empirical evidence the Huckabees are still too far from God's Law [sic].
Posted by: Michael Heath | October 5, 2009 4:46 PM
Funny how the theocrat revisionists seem to miss the implication of the governments are implemented amongst men line in the DoI.
Posted by: Hume's Ghost | October 5, 2009 5:18 PM
I agree that Keyes is no threat. Even the wingnuts at FreeRepublic are extremely lukewarm about him -- though likely because they know he's unelectable.
I tend to be more optimistic about America's ability to avoid the slippery slope. Demographic trends are running against the Christianists, and there seems to be little appetite amongst the young to step on that slope when it comes to social issues like gay marriage. While there have been some steps backwards over the years, the lasting reforms have almost always been in direction of liberalization (with the notable exception of law enforcement and sentencing reform, I guess).
There is always the chance that they will have their day again, in extremis (i.e. in a time of crisis--as envisaged by the wingnuts themselves, ironically), but for the moment the tide is running against them with record numbers of young people rejecting organized religion in all its guises.
There is a long way to go before Republicans could accept a leader as pragmatic as, say, the British Conservative Party's David Cameron, but I believe they will eventually have no choice but to select one or otherwise always remain on the outside looking in.
Posted by: tacitus | October 5, 2009 5:18 PM
I am sure that would have been news to Thomas Jefferson.
Posted by: toby | October 5, 2009 5:28 PM
The will of the people doesn't matter because God tells Alan Keyes who is entitled to hold office.
The will of Illinois voters in the 2004 US Senate race:
Keyes 24%
Obama 70%
Keyes was humiliated and he hasn't get over it.
Posted by: Dr X | October 5, 2009 5:33 PM
oops ...he hasn't gotten over it.
Posted by: Dr X | October 5, 2009 5:39 PM
I get really confused when the religious right starts invoking Jefferson. He didn't even believe in the divinity of Jesus, which is a fairly big one for most of them.
Posted by: katydid13 | October 5, 2009 6:23 PM
OK, I'm scared. Two scaries:
1. I closely read Tacitus' research on Keyes Speak above, and didn't stop agreeing until paragraph 3. In fact, I've pushed the same idea myself--that the "freedom of religion" clause is in fact two freedoms: to practice, and from establishment. Given that my political philosophy is explicitly "whatever Alan Keyes says, I believe the opposite," I need help: please explain that I do in fact disagree completely with Keyes. Or I'll have to chew my leg off.
2. I've been scared of this for long enough to write three half-novels about it, or since I read Seven Days in May. But more lately. Seems to me that extraconstitutional action to establish a theocratic USA is unlikely, but the time for that is not the ascent of conservative power (such as in 2000 or 1994.) The time would be at the decline of such power, since those openly imagining either the coup or the government to follow--Mr. Keyes chief of 'em--would feel that their options were closing. Knebel and other folks with that idea always seem to pick an incipient event--signing of an ill-informed peace treaty, or some such. I'd look instead for the swing moment when the sloppy and confusing but righteous notions of constitutional freedom--at the moment, notions almost completely in the province of democrats--begin to swing in their gradual and ungainly way back toward honesty.
We have at this time senators embracing coup plotters in Central America, arguing openly that the coup was not a coup at all. Fringe pundits declare that if a coup were to be considered in the USA they would be pretty much OK with it. More mainstream pundits are also campaigning for David Petraeus, who is not a politician and has not announced any run for office; that is an ominous notion in itself. The armed forces are heavily christianized, and anti-Obama rhetoric is heated and carelessly veiled racism or alienation. Guns, spitty and incoherent screeching, demagoguery in spades, and trumps at least as far as the Republicans in Congess care. It's clear to me that only a small minority of Americans would even begin to accept a move against the government but even a move would be disastrous. I remember how awful it was to see Felix Gaeta and Tom Zarek executed. Much as I dislike Keyes and Coburn and DeMint, I don't want to see them lethally injected.
I had a point. I promise.
ice
Posted by: ice9 | October 5, 2009 7:23 PM
In other words, Keyes has a very standard 19th century understanding of the Constitution. He'd rather the whole 20th century had never happened.
Posted by: James Hanley | October 5, 2009 8:15 PM
James Hanley stated:
I'd argue it wasn't 19th century so much as an early-antebellum perspective conjoined with those that never liked "We the people" but instead preferring "under God".
Posted by: Michael Heath | October 5, 2009 8:43 PM
Here in Johnson County Tennessee the ten commandments are displayed along with the DoI and the Constitution. In a pamphlet at this “historical display” it states the ten commandments “are indeed one of its fundamental spiritual and moral foundations.” Does the Constitution have a spiritual or moral aspect?
Posted by: ralph137 | October 5, 2009 9:25 PM
Unjust powers of government (those that do not serve the goal of securing their unalienable rights) are not legitimized (made lawful) by the consent of the governed.
Like Ginger Yellow #11, I don't see how this is much different from the libertarian position, apart from Keyes' references to a creator. For example, take the unalienable right to liberty, which in Keyes' example is a reference to slavery. Suppose the governed consented to enslave themselves (in some imaginary referendum with no dissent). Keyes is saying they can't have what they want. I don't know what other unalienable rights he has in mind. Gun ownership? Free speech? Online gambling? What if the governed consent to surrender these rights? Again, the consent would have to be unanimous for purposes of this argument. And that's where Keyes gets it wrong: the consent is not illegitimate because it intrudes on the Creator's privilege; rather, it intrudes on those who do not consent.
Posted by: Grumpy | October 5, 2009 11:00 PM
I would even cut out references to Old Testament punishments. Alan Keyes seems to have forgotten about the concept of rights in the constitution. It's not the people's rights that are spelled out and limited, it is the government that has limited rights.
So the question is not what the limits of the people's inalienable rights are, the question is when does the government have the right to step in. And last time I checked, the US government was never founded to be a tool for God to punish the wicked.
Posted by: Jim | October 7, 2009 2:18 PM
Creationists. Alan Keyes. Obviously, a PhD from Harvard isn't worth what it used to be.
Posted by: Jeff Eyges | October 8, 2009 12:00 PM
Jeff Eyges:
The same can be said about an MBA in business.
Posted by: democommie | October 8, 2009 8:21 PM
Jeff and Demo - Regardless of the school, you still have to want to learn the material beyond the minimal effort required to pass.
Posted by: Michael Heath | October 8, 2009 8:38 PM