Ted Cruz: Constitutional Remedies to a Lawless Supreme Court

National Review ^ | June 26, 2015 | Ted Cruz

[Isara]

This week, we have twice seen Supreme Court justices violating their judicial oaths. Yesterday, the justices rewrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5–4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government.

Both decisions were judicial activism, plain and simple. Both were lawless.

As Justice Scalia put it regarding Obamacare, “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’ . . . We should start calling this law SCOTUSCare.” And as he observed regarding marriage, “Today’s decree says that . . . the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court.”

Sadly, the political reaction from the leaders of my party is all too predictable. They will pretend to be incensed, and then plan to do absolutely nothing.

That is unacceptable. On the substantive front, I have already introduced a constitutional amendment to preserve the authority of elected state legislatures to define marriage as the union of one man and one woman, and also legislation stripping the federal courts of jurisdiction over legal assaults on marriage. And the 2016 election has now been transformed into a referendum on Obamacare; in 2017, I believe, a Republican president will sign legislation finally repealing that disastrous law.

But there is a broader problem: The Court’s brazen action undermines its very legitimacy. As Justice Scalia powerfully explained,

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before the fall. . . . With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

This must stop. Liberty is in the balance.

Not only are the Court’s opinions untethered to reason and logic, they are also alien to our constitutional system of limited and divided government. By redefining the meaning of common words, and redesigning the most basic human institutions, this Court has crossed from the realm of activism into the arena of oligarchy.

This week’s opinions are but the latest in a long line of judicial assaults on our Constitution and the common-sense values that have made America great. During the past 50 years, the Court has condemned millions of innocent unborn children to death, banished God from our schools and public squares, extended constitutional protections to prisoners of war on foreign soil, authorized the confiscation of property from one private owner to transfer it to another, and has now required all Americans to purchase a specific product, and to accept the redefinition of an institution ordained by God and long predating the formation of the Court.

Enough is enough.

Over the last several decades, many attempts have been made to compel the Court to abide by the Constitution. But, as Justice Alito put it, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”

In the case of marriage, a majority of states passed laws or state constitutional amendments to affirm the definition of marriage as between one man and one woman. At the federal level, the Congress and President Clinton enacted the Defense of Marriage Act. When it comes to marriage, the Court has clearly demonstrated an unwillingness to remain constrained by the Constitution.

Similarly, the Court has now twice engaged in constitutional contortionism in order to preserve Obamacare. If the Court is unwilling to abide by the specific language of our laws as written, and if it is unhindered by the clear intent of the people’s elected representatives, our constitutional options for reasserting our authority over our government are limited.

The Framers of our Constitution, despite their foresight and wisdom, did not anticipate judicial tyranny on this scale. The Constitution explicitly provides that justices “shall hold their Offices during good Behaviour,” and this is a standard they are not remotely meeting. The Framers thought Congress’s “power of instituting impeachments,” as Alexander Hamilton argued in the Federalist Papers, would be an “important constitutional check” on the judicial branch and would provide “a complete security” against the justices’ “deliberate usurpations of the authority of the legislature.”

The Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it.

But the Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment — the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.

The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.

Rendering the justices directly accountable to the people would provide such a remedy. Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings. The courts in these states have not been politicized by this check on their power, nor have judges been removed indiscriminately or wholesale. Americans are a patient, forgiving people. We do not pass judgment rashly.

Yet we are a people who believe, in the words of our Declaration of Independence that “when a long train of abuses and usurpations . . . evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.” In California, the people said enough is enough in 1986, and removed from office three activist justices who had repeatedly contorted the state constitution to effectively outlaw capital punishment, no matter how savage the crime. The people of Nebraska likewise removed a justice who had twice disfigured that state’s constitution to overturn the people’s decision to subject state legislators to term limits. And in 2010, the voters of Iowa removed three justices who had, like the Supreme Court in Obergefell, invented a constitutional right to same-sex marriage.

Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.

As a constitutional conservative, I do not make this proposal lightly. I began my career as a law clerk to Chief Justice William Rehnquist — one of our nation’s greatest chief justices — and I have spent over a decade litigating before the Supreme Court. I revere that institution, and have no doubt that Rehnquist would be heartbroken at what has befallen our highest court.

The Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.

But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.

And if Congress will not act, passing the constitutional amendments needed to correct this lawlessness, then the movement from the people for an Article V Convention of the States — to propose the amendments directly — will grow stronger and stronger.

As we prepare to celebrate next week the 239th anniversary of the birth of our country, our Constitution finds itself under sustained attack from an arrogant judicial elite. Yet the words of Daniel Webster ring as true today as they did over 150 years ago: “Hold on, my friends, to the Constitution and to the Republic for which it stands. Miracles do not cluster and what has happened once in 6,000 years, may not happen again. Hold on to the Constitution, for if the American Constitution should fail, there will be anarchy throughout the world.” We must hold fast to the miracle that is our Constitution and our republic; we must not submit our constitutional freedoms, and the promise of our nation, to judicial tyranny.

— Ted Cruz represents Texas in the United States Senate.

[Teacher317]

The Constitution states if we believe we have a tyrannical Govt ten it needs to be replaced, so why the hell s this not happening?

I believe that you are referring to the Declaration, not the Constitution.

[Cheerio]

Scalia can give us all the rhetorical candy he can come up with, but until he resigns he is a rank hypocrite,

"It’s over. It’s been over for years. We all consented to living under the Law of the United States of America and consented to pay taxes TO THAT NATION. That nation NO. LONGER. FLIPPING. EXISTS. and hasn’t for years. What you must now decide is whether or not you CONSENT to be governed by an explicitly, openly evil tyrannical oligarchy. The most clear and obvious sign of consent is the paying of taxes. Just sayin’."

[LS]

Absolutely agree. This may ultimately be his calling.

[manc]

sorry yes,not much sleep lately

[MeshugeMikey]

Thank you!

[b4its2late]

Yes, for sure he is the best person to lead this country.

[Hostage]

> “The bottom line is that the 17th Amendment needs to disappear, and activist justices along with it.”

No argument here but it’s a longer term proposition. It won’t happen soon enough. A new amendment is needed now that will sail through quickly; my preference is that is be one that empowers state legislators and the people.

[Hostage]

Then we should all lie down and submit?

[CodeToad]

The Congress can impeach a supreme court member for lack of “good behavior”. Why haven’t they???

If Congress believes the court is acting politically, they can impeach those members that are.

Why haven’t they??

[SoFloFreeper]

actually, that would be a brilliant move. Cruz on SCOTUS would be better than Cruz in the White House.

Imagine 30 years or more of Constitutional rulings from the Third branch—it’d be great.

[lquist1]

“Scalia can give us all the rhetorical candy he can come up with, but until he resigns he is a rank hypocrite”

Great, let’s spend our energy calling for the resignation of one of the good, dissenting justices so he can be replaced by another Kagan or Sotomayor. Sounds like a winning plan to me...

[cyn]

"How is tyranny to be restrained?">> good question, Jacquerie; I've been asking myself that. I am grateful to have gotten this info this am from Billie Tucker:

Because mourning only is not an option:

enter: g4vusa . org >> http://grassroots4victory.com

August 8, 2015: Tour starts in Jacksonville, FL

There is a sleeping giant in America – a giant that has been hunkering down, keeping quiet, and trying not to make any waves. A sleeping giant just trying to ride out the storm bearing down on America, focused on family, their jobs, and ‘life’, while the national turmoil and chaos swirls and blows against them and those they love.

For years, a Beast has been poking the chest of our sleeping giant. Poke. Poke. Poke.

The Beast is a bully. Like all bullies, looking for a fight and growing in confidence each year while our giant sleeps. Our sleeping giant appears to have been silenced. No one appears to be willing to stand against the Beast’s destructive behavior. No one in power, not the media, not the national stage, not elected officials, not even the local school board or city council is communicating what our sleeping giant can trust and believe.

[Pride in the USA]

Time to donate to his campaign again.

[napscoordinator]

I don’t know how he thinks he is going to get a constitutional amendment outlawing gay marriage. First of all, he’d had to convince the Republicans....no way as they can’t stand him.....second, he’d have to convince the Democrats...he probably could get a few on his side but not many......third, he’d have to convince the states......I doubt he could get more then 10. The job should have been done before this ruling not after.

[American in Israel]

Yeah, but Ted Cruzes and Ronald Regans are few and far between. We need a staunch constitutionalist to repair the damage done by the immigrant muslim socialist racist in cheif.

[Hostage]

http://www.freerepublic.com/focus/f-news/3304160/posts

I suspect everything outside of Walker is a nonstarter for you, eh?

Yeah, I’m sure of it.

Walker’s a good egg, a solid 1st string player. a star ....

but not a super star that comes once in a generation, perhaps a lifetime.

Walker’s young; plenty of time for ....later. He’ll be just 54 in 2024. In the meantime let’s see Scotty whip his state legislature to get behind the forces associated with the link above.

LOVE ME MY TEDDY C!

[isthisnickcool]

The boy is smart!

[annieokie]

Only AFTER HE SERVES AS OUR NEXT PRESIDENT for 8 years. THEN he can retire to the Supreme Court if that is possible.

[Publius]

It’s what William Howard Taft did, although he only served four years as president.

[napscoordinator]

I suspect everything outside of Walker is a nonstarter for you, eh?

Not sure why you are bringing Walker into it, but if Walker mentioned a constitution amendment to get rid of gay marriage. I’d say the same thing....how are you going to get this accomplished. He is going for getting rid of ACA which will be hard enough. The wonderful thing about Walker is that although he is high in the polls, he has not even announced yet. He is still working in the state which is what all of them should be doing. Our election is way too long. It should not be more then a year....In fact, it is a shame that we can’t say that nobody can announce before a year before the election. That would really make our system better. The endless elections are tiresome that is for sure.