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.

[Frank_2001]

“How is tyranny to be restrained?”

By a really TOUGH tyrant, that’s how! /s;)

[nathanbedford]

There are many who comment againstArticle V who do so for questionable motives. I have cited the NRA for its opposition and I have asserted that their motive is to protect the Second Amendment even at the cost of the whole Constitution. With respect to this poster, INVAR, I have flatly asserted that he is opposed to Article V because he actually desires civil war and bloodshed. I have stated that my allegation would be in effect withdrawn if he simply denied it. He has failed to do do so here :

The question is whether you would rather have war even if you could have the government you want by peaceful means? You simply will not answer the question. I believe you're concealing a mad desire to make war. More, you will not tolerate others seeking to obtain good government by peaceful means because that frustrates your desire for bloodshed.

If I am wrong all you have to do is say so.

But then you must explain, if you're intellectually honest, why you're opposed to trying to find a reasonable and peaceful way to good government.

INVAR not once but repeatedly has declined to deny that he actually seeks violent overthrow of the government. I invite the interested reader to review the entire thread to realize that the concerns raised on these threads by the same critics have been refuted over and over again. I invite the interested reader to review the entire thread to consider whether the critics are animated by good and decent motive.

Mindless repetition of the idea that lawless politicians will not be made law-abiding by a mere constitutional amendment is preposterous and has been shown to be preposterous on its face. One need only consider the amendment proposed by Senator Cruz to require federal judges to periodically stand for election or recall. The amendment is self enforcing, either the judge or Justice is confirmed in his office or he goes. There is nothing Washington politicians can do to work around this amendment to the Constitution.

These "process" amendments are structural and therefore are self effectuating and very difficult to evade. Other such amendments include term limits as well as a requirement that bureaucratic regulations be confirmed by the Congress or they lapse if not confirmed. These structural changes are self enforcing, Congress either votes the regulation up or Congress votes the regulation down. There is no guarantee of political success but certainly the amendment will be effectuated.

Structural amendments clearly have the power to restore our Constitution. To deny this reality by mindlessly repeating a mantra as does INVAR that tyrannical politicians will remain tyrannical is a tautology without application to structural changes. Those posters like INVAR who engage in this practice out of questionable perhaps even the darkest motives do so having been fully informed of the power of structural "process" amendments.

The upside of Article V is demonstrably real, the downside is fully contained, there is no better way short of the violence some actually seek. Do not be deceived, do not let the debate be sidetracked, do not lose whatever chance Article V holds for the future of your children and grandchildren.

[annalex]

periodic judicial-retention elections

Huh, this country elected Clinton twice and Obama twice. What's so magical about elections?

[Amendment10]

"Mark Levin mentions the relevant factor is the large money creation machine via the Federal Reserve. The States have no such machine."

As a matter of fact, the delegates to the Constitutional Convention had discussed delegating to the feds, expressly via the Constitution, the specific power to regulate banking. But the issue was dropped, the states wanting such powers to remain unique state powers.

“A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was, that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution [emphasis added].” —Jefferson’s Opinion on the Constitutionality of a National Bank : 1791.

In fact, Alexander Hamilton’s national bank was arguably the first constitutional scandal, the feds stealing unique, 10th Amendment-protected state powers to regulate banking.

"He threatened to stack the Supreme Court because they were declaring many of his New Deal Programs unconstitutional."

Again, the states had never amended the Constitution to grant the feds the specific powers to establish FDR’s New Deal programs. So they were unconstitutional.

And as I mentioned, FDR didn’t lift a finger to encourage Congress to propose amendments to the Constitution to the states to establish his programs within the framework of the Constitution as required by Article V.

"FDR had been selling his Social Security as just an old age pensioner program that was voluntary."

Regardless that FDR’s Congress used the General Welfare Clause (GWC; 1.8.1) as its excuse to establish Social Security, President James Madison had noted that the GWC was not a delegation of power but an introductory clause for the clauses that followed.

"To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper.” — James Madison, Veto of federal public works bill, 1817

"Also FDR had social healthcare in the works to be launched but it was shelved because it became clear that FDR was pushing his luck. The democrats waited 75 years to get their social healthcare forced on Americans."

Post FDR era activist justices and Democrats have wrongly ignored that state sovereignty-respecting justices had previously clarified that the states have never delegated to the feds, expressly via the Constitution, the specific power to regulate, tax and spend for intrastate healthcare purposes. This is evidenced by the following excerpts.

• ”State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. [emphases added]” —Gibbons v. Ogden, 1824.

• “Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” —Justice John Marshall, Gibbons v. Ogden, 1824.

• “Inspection laws, quarantine laws, health laws of every description [emphasis added], as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass.” —Justice Barbour, New York v. Miln., 1837.

• ”4. The issuing of a policy of insurance is not a transaction of commerce [emphasis added] within the meaning of the latter of the two clauses, even though the parties be domiciled in different States, but is a simple contract of indemnity against loss.” — Paul v. Virginia, 1869. (The corrupt feds have no Commerce Clause (1.8.3) power to regulate insurance.)

• “Direct control of medical practice in the states is obviously [emphases added] beyond the power of Congress.” –Linder v. United States, 1925.

In fact, note that regardless that federal Democrats, RINOs, corrupt justices and indoctrinated attorneys will argue that if the Constitution doesn’t say that the feds can’t do something then they can do it, the Supreme Court has addressed that foolish idea too. Politically correct interpretations of the Constitution's Supremacy Clause (5.2) aside, the Court has clarified in broad terms that powers not delegated to the feds, expressly via the Constitution, the specific power to regulate intrastate healthcare in this case, are prohibited to the feds.

”From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added].” —United States v. Butler, 1936.

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

[MARKUSPRIME]

My allegiance to this country is gone, and I used to be so highly patriotic. Its a very sad day. Let the chinese or russians have it, my allegiance is to God, I am done with trying to change this liberal godless cancer of a country.

[trebb]

So your remedy would apparently be civil war. Hey, I think I will stick with Cruz.

I'll stick with Cruz too, but specifically because he understands that once "normal" channels fail, a Civil War is a viable solution - he as much said so with some of his 2nd Amendment statements.

Go CRUZ!

[mazda77]

I’ve heard differently that he supports COS. Maybe his official endorsement hasn’t been made yet but in my thinking he’s not at all opposed to COS.

This was a separate paragraph near the end. What else does he need to say? Or maybe you should be a bit more suspicious of what you hear.

“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.”

[Erik Latranyi]

Let’s focus on getting JUST ONE done first. My preference is THE ONE should address the flaws in the 17th, the power between the States and the federal government.

There is our downfall.

Look at the GOP primary just here on FR. People calling each other's candidates RINOs, traitors, etc.

Do you think there will be any consensus around who will lead an Article V and what will be the focus?

We are our own worst enemies.

[left that other site]

Amen.

[Vaquero]

if Cruz doesn’t make it to POTUS....he might just make a bang up POTCSA.

[Renegade]

Looks like we need a NEW battle flag.

[bert]

if there is no law, then, there is no law

if those that govern are not restrained by the law, then those that are governed are not restrained by the law

[parksstp]

I think Cruz is onto the right idea.

One thing I’m worried about though is that the Judicial Elections might backfire. I certainly would not want to see Antonin Scalia removed from the SCOTUS! So to remedy this in his proposal, I suggest Cruz put this Election of Judges on a day where the right people would come out and vote....like Tax Day. This would maximize the number of good guys voting.

[bfh333]

As always, a thoughtful and articulate response that cuts through the nonsense...

Our founders spent YEARS petitioning the king before arms were taken up and shooting started. If those opposed to an article V convention for the purpose of proposing amendments spent as much time assisting as they do telling us it’s a “con-con” and won’t work, the momentum would be potentially overwhelming...

As others have said, trying EVERY PEACEFUL means of a resolution gives us the moral authority to proceed down other paths...

http://www.conventionofstates.com/

[justiceseeker93]

I know that some here may disagree with this, but:

Ted Cruz would make a superb SCOTUS justice himself. That's the job that's most suited to his talents, intellect, and background, more so than POTUS or Senator.

[Chauncey Uppercrust]

EXCELLENT, Cruz is the only way to go

[bfh333]

Here... Here...

While we participate in the circular firing squad, the progressives march along like the jack-booted thugs they are...

[manc]

Two judges should have recused themselves, one judge who is out of it,Ginsburg actually married to homosexuals a few weeks ago.
They need to be impeached and removed.

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?

[DoodleDawg]

...I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections.

If Ted Cruz knows he would never get 67 votes to impeach a justice then he must also know he'll never get 67 votes to pass this amendment.

[conservativejoy]

Gov. Abbott of Texas will. I think we have some Republican Govs. who would stand with Texas. I believe Bobby Jindahl would. I would hope our Gov.in Tenn., Haslam, and Asa Hutcheson of Arkansas would stand up. Possibly the Govs. of states like Utah, Montana,Wyoming, Idaho, and Oklahoma.

We need to start contacting our state governments and telling them we want them to fight this and that we are with them.