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.

[caww]

...”As a young teenager Cruz’z 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.”....

Yes....impressive father as well as son.

[YHAOS]

“Are you an anti-Christian bigot?”

LOL!

The answer, of course, is YES! (Not that any of those bigots would answer honestly)

Thanks for the BEEP!

[betty boop]

I'm disappointed with [Cruz's] proposal: "Rendering the justices directly accountable to the people would provide such a remedy" . . .

I'm sure you're absolutely right that "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."

Yet the Congress must act first: The Senate cannot bring a bill of impeachment; only the House can. Then the Senate can convict — or not.

Yet it appears Congress will not impeach; nor will they stipulate "Exceptions" or constraints on the power of the federal courts, let alone the Supreme Court — the tools the Constitution explicitly grants them in Sections 1 & 2 of Article III, in order to counter and correct judicial usurpation of the liberties of the people and the just, retained powers of the several States — powers that were deliberately reserved to the States and thus to be protected against federal encroachment. The Court this week nationalized, or federalized, what have been universally recognized as State powers for the past 239 years — i.e., marriage, and provisions WRT matters concerning healthcare.

What is the point of devising new tools, or novel amendments, when the tools we already have are being ignored? How long before the new tools are themselves ignored?

I think you are absolutely right to worry that "more democracy" would do more harm than good. But this appears to be what Cruz is calling for, with his proposal to make any judge or justice holding lifetime appointment (subject to "good behavior") "directly accountable" to the People in a national referendum taken every eight years.

We are a constitutional Republic, not a direct democracy. Our electoral conventions are democratic; but the Republic is defined by the Constitution, not by the direct will of the people. That will is subjected to, and is constrained by, fundamental constitutional principles, preeminently the separation and balance of powers, and strictly enumerated powers of Congress. As noted above, Congress has the power of Impeachment and of constraining the Supreme Court's natural tendency to devolve into what Thomas Jefferson called "the tyranny of the oligarchy." Which plainly is what we have today.

Two last thoughts before closing: (1) Plato, founder of political philosophy, detested the very idea of "democracy," thinking it the fast route to mob rule. Certainly that notion was particularly well validated by the French Revolution. Arguably, "mob rule," manipulated by ideological activists, increasingly is what disorders American society these days. In consequence, there is no "rule of law"; there is only the "rule of men."

(2) What was truly shocking to me respecting the two SCOTUS decisions this week was what they had in common: Both were usurpations of the powers of the several States recognized under the Tenth Amendment. Both cases were demonstrations of frank judicial tyranny predicated on a contempt for the Constitution, clearly in complete breach of their own Oaths of Office.

In short, no "Good Behavior" there. The constitutional prescription in such a case is Impeachment and/or congressional modification of SCOTUS jurisdiction.

But no one seems to have the stomach for this, these days.... So, I believe you reach the just conclusion that what is needed is to reform, not only the Senate, but Congress as well. That sort of thing is resolved in the electoral process. That takes time; but time is what we seem to be running out of.

But the "demos" (the American people) hasn't got a clue about this pressing need.... They don't notice (or possibly they don't much care) that they are being ineluctably, systematically deprived of their historic constitutional liberties. They are too often willing to "sell their souls for a mess of pottage."

I don't have a clue how to solve that problem — which is fundamentally a moral problem. But I feel pretty sure that neither Ted Cruz's, or Mark Levin's "prescriptions" would make much of a difference.

Dear Jacquerie, thank you ever so much for your thoughtful and thought-provoking essay/post.

[Jim Robinson]

ping

[hosepipe]

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

Nice.... Cruz side steps "some" traps and ignores others.. then fires back salvos of traps of his own...

Brilliant to be sure.. but a dangerous game....

Even if he so-called "wins" most these engagements..
The massive voter fraud "quicksand" awaits...

Not only in the general election but in the primary as well..
to wit; How does a known democrat collaborator, poseur, shill and inventor of Romney-Care win the 2012 republican primary..
you know..... right AFTER the 2010 conservative election upsets..

except by brilliant republican primary voter fraud... -OR-
republicans are really mostly RINOs.. and are basically lite-democrats..

I say; buy your popcorn NOW.. the price will surely escalate..

[Jim Noble]

Since either the Senate or the House can initiate a regulation to govern the appellate jurisdiction of the Supreme Court, and since such regulation(s) can be adopted by simple majority vote of both Houses and are not subject to a Presidential veto, why doesn't Senator Cruz introduce a resolution saying, "Effective immediately, the Supreme Court may not hear cases on appeal from State Courts, either directly or from Article III courts, concerning marriage"?

That seems easy enough, and doesn't require any constitutional changes.

[Jim Noble]

The Constitution does not need to be amended, via an Article V convention or otherwise, in order to solve the Supreme Court problem, since the written Constitution already contains the solution.

Article III, §2: “...In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

[fatnotlazy]

I can't see congress doing anything. Oh, they might whine and make noise, but in the end, they will just do nothing. I suspect that many in congress — Republican and Democrat — want the sodomites’ vote. And who knows how many are financed by entities promoting the gay agenda. Then we have the leaders, Boehner and McConnell, who for whatever reason — are slaves of the Obama administration.

Ted Cruz and maybe a few others might want to rein in SCOTUS and/or find away to nullify this decision, but with the rest of congress refusing to go along, nothing will be done.

[betty boop]

Not that any of those bigots would answer honestly.

Of course not. They can't. "Honesty" demands recognition of a universal standard against which speech and actions can be objectively judged for their truth or falsity. Ideological activists must actively deny that such a standard objectively exists, or their utopian pipe dreams can never be realized.

So of course, they must go after Christians.... In this, they are indistinguishable from ISIL, both in their motivations and designs.

[betty boop]

...except by brilliant republican primary voter fraud....

Forgive me, dear brother, but I do not think Republicans are very good at the voter fraud game.

What Cruz notices is the GOP Establishment working overtime to divide its conservative base, to pit one "faction" against another, thinking that an electorate so divided will cancel each other out in the final vote tally, in which case it would be highly likely that a moderate — Jeb Bush is the poster-boy here — would emerge as the successful Republican presidential candidate.

I think he's on to something here....

[KC_Lion]

Thank you for the Ping Jim!

[onyx]

Senator Cruz never surrenders!

He always seeks solutions! In fact, he has remedies within his wealth of Constitutional knowledge.

Pray to God Almighty for his continued good health and presidential success.

[hosepipe]

Forgive me, dear brother, but I do not think Republicans are very good at the voter fraud game.

---

Hello; Not all republicans are republicans..
Take John Boehner and Mitch McConnell as examples..
John Roberts is republicanish “sometimes”.. but mostly not..

They are just examples.. a deeper look will crawl yer nape..

***

[Jacquerie]

<>Name for us ONE "good government" that has ever been peacefully obtained from the grip of an oligarchy or a tyranny. JUST ONE.<>

Okay.

William III of England.

[Jacquerie]

Name for me the time the people or their reps convened to enslave themselves.

[Hostage]

> "But no one seems to have the stomach for this, these days.... "

You might have a blind spot in your peripheral view and it's not your fault nor anyone else with the same blind spot. Ted Cruz alluded to it, which is the fact that the Article V movement will grow if Congress and SCOTUS don't listen. Well, the fact is the Article V movement is already growing very rapidly at breakneck speed, but we don't hear about it much from the MSM presumably because they are Snobs and don't know yet how to handle a "radical" "fringe" movement by state legislators.

Her's the latest from the COS Project (http://www.conventionofstates.com/the_jefferson_statement )

But the Convention of States movement is achieving massive victories in the fight for liberty.

Just this year , we filed the Convention of States application in 34 state legislatures. Of those 34 states, 19 have passed initial committee votes already, after filing.

Additionally, 3 state Senate chambers and 8 House chambers have moved from Committee to passing the application via their respective floor votes thus far.

All of this progress builds on the valiant efforts of activists in Georgia, Alaska, Florida, and just recently Alabama who have all passed the COS application in both houses!

> "So, I believe you reach the just conclusion that what is needed is to reform, not only the Senate, but Congress as well. That sort of thing is resolved in the electoral process. That takes time; but time is what we seem to be running out of."

Indeed time is short. We need the states to exercise their Article V authority by carrying JUST ONE amendment across the finish line, then others may follow but the first one will be the game changer. The amendment they first get over the finish line must be designed so its administration and enforcement are solely in the hands of the States, not the Federal Government. The first completed Article V amendment should be "new", and both broad and specific, simple yet powerful, and drafted to address state powers that level the playing field between the States and the Federal Government. The amendment should be viewed as benign by the general populace and completely justified in their minds for States to have.

There are 7.398 state legislators. They can be viewed as a backup to the failed representational body that is presently Congress. These 7,398 legislators occupy 99 legislative chambers (Nebraska has only one chamber). Each state legislative chamber appoints one delegate to the Article V Meeting of States. It takes 66 delegates from 34 states to propose an Article V amendment. Only 66 people are needed. No governor, no federal agency or court or federal body of any kind can stop or interfere with the work of the 99 delegates sent to the meeting of the states. This group of state delegates would hold more constitutional power of authority than any other group in government. They remain beholden to their state legislatures and no one else.

Conservatives and republicans control 66 of 99 state chambers. Republicans in state legislatures are generally much closer to the people and are more conservative as a result.

[Hostage]

> "Since either the Senate or the House can initiate a regulation to govern the appellate jurisdiction of the Supreme Court, and since such regulation(s) can be adopted by simple majority vote of both Houses and are not subject to a Presidential veto, "

From Article III, Section 2.

... the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The term 'regulations' is a result of laws passed by Congress and signed by the President. I think Obama would veto any such law.

[Hostage]

http://www.freerepublic.com/focus/f-news/3304160/posts?page=222#222

http://www.freerepublic.com/focus/f-news/3304160/posts?page=223#223

[Jacquerie]

Last week’s Scotus putsch has done more for the Article V movement than any statement from Cruz, Walker . . . etc could ever do. Three radical decisions repealed self-government and constituted a single finger salute from Satan’s servants to God.

We do not disagree with opponents, we stand against blood thirsty enemies.

[INVAR]

My question to you was "Name for us ONE "good government" that has ever been peacefully obtained from the grip of an oligarchy or a tyranny.

You did not provide ONE. You provided scurrilous, erroneous and ridiculous examples that do not fit the parameters of the question.

Notwithstanding your subtle insults to my faith, desires and motives which you sir, in your continuous exhibition of slander - have absolutely no comprehension or understanding of. Your assumptions are piss poor and fall into the same tactics Leftists us to silence any position that does not comport with your agenda. In your case; passing more Amendments to a Constitution that has been already rendered irrelevant by this government ruling us.

Tyranny is as much in the eye of the beholder as it is an objective reality.

I think this revelation from you answers everything I suspected.

I see what exists now in this country as a tyranny. You still see us as existing under a Republic that can and will vote 'good government' for itself.

So we have nothing further to discuss.

Knock yourself out pushing Article V. It does me no harm that you people attempt it and if anything may provide a justification for what will be then seen as absolutely necessary.

My problem with it is the same as I have with those who anoint politicians as saviors.

We are soon going to see which of us was correct in regards to whether Article V provides the salvation you promise or whether the tyrants in power are going to follow the blueprint history teaches under the kind of regime we now exist under and the consequences they have already sown for us all.