Ted Cruz: Constitutional Remedies to a Lawless Supreme Court

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.

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,

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.

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.”

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.

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.

The Constitution is null and void in all practicality and effect in the halls of power in this nation.

Adding new amendments to it will avail ABSOLUTELY NOTHING - except to provide a justification and authorization for what will be necessary to resist tyrants.

New Amendments will not restrain those now in power, as we are ruled by a lawless government that is a law only unto itself.

Demoralizing words that sound like surrender to me.

I stated a fact there in that post:

A society of people who are no longer governed by God, will be ruled by the tyranny of men.

I really don't care if you think if stating the reality of the battlefield we find ourselves on is 'demoralizing'. You do not win wars by lying to yourself about how free we still are or how invincible you think we are while ignoring the reality of what has been allowed to be erected on top of us.

If you are going to fight for liberty, as intended - then understand where we find ourselves in relation to the heights the enemy has entrenched itself in.

I become more convinced each day that this people have absolutely no clue what has ALREADY been done to us, and such people are NOT going to endure what is coming with either their faith or principles intact.

We are in a fight beyond liberty at this point. I fear by the time enough wake up to reality - it's going to be too late to fight for anything beyond raw survival.

We need to realize the absolutely DIRE situation we find ourselves in and what it portends if we are not willing to do what is necessary to resist what is being done to us. And when I say resist - I do not mean going to the polls to vote for a ruling class stooge portraying themselves as a messiah.

If we want to fight for liberty - then it better begin now. We need to do what our forbears did and refuse to abide by this tyranny now ruling us and consider it null and void.

You’re preaching to the choir my FRiend but it’s nice to see others who are not in denial about how far down the road we’ve gone. That is why I say that for now at least, forget about the feds who are probably 80% or about $3 trillion unconstitutional, are beyond repair, and have no desire in the least to get fixed because it would mean DRASTIC downsizing.

We are at the individual state level now in defensive mode to reject and nullify unconstitutional federal acts which by definition are acts of tyranny. This is where I see the fight at this point. But let’s build confidence in others, not discouragement, to do what we can and must.

Let’s not build false bravado and in trumping confidence and surety we water-down the clear and present danger now upon us.

For that is what I see happening across the Conservative spectrum. The zealous desire to only ‘think positive’ that we are going to ‘rise up’ and ‘save ourselves’ relegates many to simply thinking that all they have to do is send in money to political candidates and assure themselves that the next president is going to be our salvation.

I think the vast majority of us are infected with a fatal case of Normalcy Bias - and we need to scream about what will happen to us if we do not arrest the fall we are currently on.

God in scripture did not mince words in describing the consequences that would befall His people for their apathy and accommodation of sinfulness. I think we need to do the same, or many will not think we are in the dire situation we find ourselves in.

Look, count the cost, be realistic, but no need to be morose, sour, or bitter. No one will follow you that way and you invite defeat. Our Founders knew and acknowledged the risks involved but they didn’t wallow in it. They moved based on belief in the virtue of freedom and hope against the odds. You’ve got to have hope and pass it on to others. Otherwise, we’re spinning our wheels.

And as I’ve said for a long time now and glad to see others like you saying it, America’s salvation isn’t coming from some “political savior” so many seem to look for. It will come when the American People take stock and via their states, stand against the feds.

The “political savior” thing is a symptom of our #1 problem: trusting in man instead of God. This problem, in turn, is the source of our #1 political problem: a $4 trillion federal government, $3 trillion of which is unconstitutional and illegal.

The political fix must be preceded by a spiritual fix. We’re in God’s hands.

Some like myself, believe that the Laodecian Age began around 1900, after the end of the wonderful Philadelphia age in the 1700’s & 1800’s. We’re nearing the end of the last age before Jesus comes, IMO - the signs are overwhelming.

But God has promised that the latter rain of his Spirit will be greater than the former rain. There is beginning of a tremendous pouring out of God’s grace around around the world unlike anything I’m aware of that has happened before.

So although the church in general and the age is characterized by a self-sufficient, “we have need of nothing [including God]” attitude, there’s definitely a remnant of dedicated Philadelphia types around who know God’s love and love others.

So I think there’s reason to hope for a “rebirth of freedom”, spiritually and politically in America and around the world one last time which could last for a few decades. So although we see that Day approaching, I have reason to believe God’s grace and mercy is and will be poured out in a great, sort of final in-gathering before He comes to get us and it all comes down. We’re living in exciting and prophetic days.

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