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.

[INVAR]

The key phrase was “peacefully obtained from the grip of an oligarchy or a tyranny”.

I am pretty sure that the Declaration cost a great expense of blood in violence to maintain.

But who knows? It is possible that most are now taught in History class that white Christians from Europe simply walked on in and took the country from the king of the Mexican Indians by deceiving them to trade the country for beans who were then wiped out by all the global warming that the bigoted racist heterosexual white man brought with him.

[nathanbedford]

I should decline to supply you any examples of reform leading to good government because the question assumes what you now ask, to wit: that a society can reform government without Civil War. I know your question is not ingenuous but is rather a diversion, just part of the bluster designed to divert the reader's mind from your motive. I submit that 1000 examples will not suffice because you are playing games. The question which itself assumes arguendo the possibility of reform producing good government, exposes not just your mindset but might cause the reader to consider the matter from other perspectives. I think a guy named Socrates used this technique a lot.

The question was also posed to compel you, in the unlikely event that you were to accept the theoretical possibility that reform can possibly lead to good government, to tell us at last why you don't want to attempt an Article V reform. This thread, indeed every thread in which you interject an objection to undertaking Article V reform is, after all, a debate to enlist support for the reform of America according to conservative principles and to realign the perverted Constitution with the original instrument. Therefore, it is not merely a debate between you and me but a debate which the reader might consider in deciding whether to lend his support to a reform movement which, however slim or optimistic its chances of success, at least offers a chance to save the Republic.

I submit your diversionary tactics are done to conceal a fear that attention to Article V will delay the Civil War you so earnestly desire. I will withdraw the allegation the minute you tell me whether you would prefer a peaceful reform and explain why you want to prevent such an attempt at reform beyond the old chestnut that "it just won't work." I will accept your word because, by way of acknowledgment of your integrity, I believe you have refrained from telling us the flat truth because you are committed Christian who shrinks from lying about his motive or lying about any subject for that matter but who realizes that few would support a bloodthirsty yearning for war, and Civil War at that. As a Christian of integrity, you are unwilling to lie about your true position on wanting war. But to be worthy of our time this should not be a debate either about your motives or my motives, but about readers judging whether to support Article V.

I offer the following not in submission to your gamesmanship, rather I offer the following list of governments that have been peacefully reformed as a service to the fair-minded reader knowing that I will likely never get an answer to my question because I believe you to be trapped by your moral dilemma:

South Africa at the end of apartheid; the United States at the end of Jim Crow; Austria relieved of Soviet occupation; the German Federated Republic in 1949; the present government of Japan reforming itself after occupation; the present government of South Korea evolving, that is reforming itself into a democracy; the USSR; Poland; Latvia; Lithuania; Hungary; the Czech Republic; Slovakia; Armenia; Azerbaijan; Belarus; Estonia; Georgia; Kazakhstan; Kyrgyzstan; Moldova; Tajikistan; Turkmenistan; Ukraine; Uzbekistan; Taiwan, reforming itself toward democracy; Nicaragua between leftist regimes; Innumerable British colonies gaining independence through peaceful reform; Ghana; Suriname; Spain reforming itself after Franco; Chile likewise.

I have no doubt that the quality of the reform will not please you in each instance but reforms they were and, by honest standards, they were peaceful. Tyranny is as much in the eye of the beholder as it is an objective reality. Thus, the end of Reconstruction in the American South can be regarded either as a peaceful reform or as a cowardly retreat depending on your eye's perspective. But I suspect that even among 1000 examples there can be no example that answers the "JUST ONE" gauntlet you have thrown down so I offer "JUST ONE" which I believe will be dispositive for the objective reader:

The Confederated states organized under the articles of Confederation reforming into the United States of America in 1787. It is more than a passing interest that this reform was accomplished by invoking the equivalent of Article V

[VideoDoctor]

Anyone that can’t see Ted Cruz as our next President must be blind or living under a rock.

Sorry to report we have an abundance of those types of Americans.

[caww]

Bravo!!! Bravo!!

[caww]

Colonel...I stayed up the whole night Cruz taught the Constitution in relation to our governance and it’s branches when he did the filibuster........he was just that engaging in what he said and how he presented what he wanted to get across to any ears that would ear...and mine were more than tuned!

When he was finished I was stunned in how much I really didn’t know or understand but after that I did...and that should be required for every educational institute in our country..including the instructors...perhaps even moreso....

Ted is a Constitutionlist.....we could not have anybody better running for this office, but more importantly knowing exactly what he must do when his feet hit the ground in WAshington.

Ted knows the people, he knows how deceptive they are, and he knows how to navigate the halls of Congress. We must have someone who does know and who understands fully our Constitution.

[caww]

.....”We need to get behind Cruz early and stay there. It doesn’t matter what promises the others make, Cruz has fought the establishment since he was elected. He’s the only one willing to buck the system ‘no matter the cost’ and he will make an incredible President.”.....

Ted’s been taking a beating by the very ones who still do not understand nor know the man. He’s not in this for his own glory, after all who wants the mess this administration will leave behind, He’s in this for the country because it’s His country....he knows what the Constitution is...and why it must be protected.

[Godebert]

"Ted knows the people, he knows how deceptive they are, and he knows how to navigate the halls of Congress. We must have someone who does know and who understands fully our Constitution."

Without a basic understanding of Natural Law, one can not fully understand the Constitution.

Note the reference to Natural Law in the first sentence of our Declaration of Independence.

The Laws of Nature and of Nature's God: The True Foundation of American Law

[caww]

No No No...not a full out Constitutional Convention...a Convention of States is sufficient enough....we don’t want the Constitution “Changed”...

[caww]

....”our constitution was founded on principles to prevent this governmental tyranny in a revolution against England masters.”.......

We wouldn’t be fighting the British....understand the difference?

[caww]

...”Cruz is a superstar that comes once in a generation, perhaps a lifetime....And we have so many good ones to follow him: Walker, Abbot.....I pray that it’s God’s will that we elect such men for the next 24 years or more; we surely need a break from what’s gone on before. We need a golden age of good leadership.”......

Indeed and Amen!

[Up Yours Marxists]

They certainly don’t abide by the majority of the amendments already there. How would slapping on new ones make them any less brazen???

[PlateOfShrimp]

I am not saying that at all and I have no idea how you got that impression. I am saying that in the past, some SoCons have seemed to base their support on emotional appeal, voting for losers like Santorum or Huckabee.

“Behold, I am sending you out as sheep in the midst of wolves, so be wise as serpents and innocent as doves”

Nothing in the Good Book says that we Christians need to leave our brains at the door. We have a responsibility to vote intelligently for the candidate who has the best chance of restoring the country. IMHO, only Cruz has the combination of fortitude and acumen to have a chance. The phrase to “our only hope” meant among those running. Perhaps I should have made this more clear.

Cheers!

[betty boop]

Smartest Guy in the Room, no matter what Room he walks into.

So says his former Harvard law professor, Alan Dershowitz.

Cruz is especially good in debate — he can see the traps being laid for him by dishonest correspondents. In the end, he manages not only to evade the trap, but to snare his dishonest correspondent in it instead.

To illustrate: a recent exchange with a left progressive news correspondent, who repeatedly tried to get Cruz to answer a question that basically boiled down to "are you an anti-gay bigot?"

Any direct Cruz denial would be spun by the MSM and the Huffington Posts of this world (et al.) as a confession that Cruz doesn't support gay marriage because he hates gays as a class — just by answering "No." But the correspondent already knows that Cruz couldn't answer "Yes."

I know this sort of verbal trap is illogical on its face; but that's how these folks operate. Cruz's denial would be headline news for days, a subversive misdirection of the substance of the issue. Cruz realized that just to answer such a question would be to "dignify" or "validate" it. So he took a pass.

Instead, he turn the question around, and flung it back into his correspondent's face: "Are you an anti-Christian bigot?"

Cruz is simply brilliant. I can't wait to see him on-stage during the GOP primary debates!!!

[Jacquerie]

Cruz is brilliant. He is probably the only candidate I will vote for president.

Still, I'm disappointed with his proposal: Rendering the justices directly accountable to the people would provide such a remedy . . .

The crumbled remains of our republic do not need any more of that which caused our downfall in the first place, which is too much democracy.

As Cruz pointed out, the Senate has become institutionally incapable of fulfilling its duty to convict all but the worst dirtbag federal magistrates, judges, appointees, presidents. Neither will it trim the jurisdiction of federal courts.

The narrow solution is to reform the senate so that it can perform its appropriate, legitimate and constitutional duties.

The broader solution is to super-federalize the government as per Mark Levin's proposed amendments.

[Jacquerie]

By making structural amendments that cannot be ignored or lawyered away.

Start with repeal of the 17th Amendment and federalize from there.

[Hostage]

> “They certainly don’t abide by the majority of the amendments already there. How would slapping on new ones make them any less brazen???”

By designing an amendment under which the States have all control including enforcement.

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

[Jacquerie]

I caught about two hours of his filibuster, as Cruz spoke extemporaneously, and completely without notes on The Federalist. I jotted down his references to Federalist # this or that. Everything he said that I back checked was true. Genius.

[caww]

Genius is right.....it was said if anybody wants to know who and what Ted Cruz is about...just read the Constitution. Not only does he know it like the back of his hand...he ‘believes’ what he says when speaking about it.... Remarkable understanding and delivery.

Spending that night listening to him was simply riveting for me....One that goes in my book of extraordinary occasions that did more than make a difference. After that I watched him and soon after began supporting Ted Cruz. ...and will continue to do so throughout this election.

[Hostage]

As a young teenager his father made him memorize verbatim the US Constitution and the Declaration of Independence. Throughout his teens he joined student debate groups in which he honed the skills he displays today. You can bet he has committed to his inner soul all the arguments and expositions of The Federalist Papers.

But for all his study, his knowledge, his practice and brilliance, it would all be fruitless without his deep faith which his father instilled in him.

[Jacquerie]

Quite right.