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.

> “In other words, if the 17th Amendment had never been ratified then we probably wouldn’t be looking for a way to impeach activist justices who ignore 10th Amendment-protected state powers to prohibit constitutionally unprotected gay marriage since there probably wouldn’t be an activist justice majority like there is now.”

I’ve just finished reading up on a lot of the history of the 17th Amendment. And I believe you are right in your conclusion. But...(there’s always a ‘but’ isn’t there?), the push for the 17th was borne out of frustration by the electorate. The 17th was the wrong solution but there had to be something.

I’ll try to make it short. The push for a popular vote started with one of the founders at the Constitutional Convention ‘James Wilson’ who proposed at the CC that Senators be elected by popular vote. He was voted down by a very wide margin. But it came back with the introduction of an amendment in 1828 and a couple more times in the 19th century. So there’s a long history to it. It was started again in the early 20th century as an Article V movement, the only one to have ever existed. 31 states had signed on fully and 2 more states were getting ready to do the same to make it a done deal. When Congress saw the Article V amendment was serious they panicked and introduced their own amendment and utilized the discharge provision of states in their applications to quash the Article V movement.

I think it’s important to understand the history of the 17th before getting behind an effort to repeal it. I support repealing it and I know many posters on this thread also support repealing the 17th. And it really is important to discuss in threads like these because it is the root of the problems today just as you have discovered for yourself.

> “The 17th Amendment needs to disappear, and corrupt senators, lawless presidents and activist justices along with it. “

It’s important to understand the electorate of 1913 and before, and why the electorate thought it was so important to get a popular vote for US Senators. They were not stupid, but the solution was not lasting; it was made obsolete by population growth. One of the unforeseen flaws in the 17th is that over the history of the United States the population has grown enormously while the number of US Senators has remained small. This led to an increasing isolation of US Senators from the people. Today we have the ‘Washington Cartel’ as Ted Cruz calls it. From an organic perspective this development was entirely predictable.

In the formation of the Constitution it was desired that the document be designed to provide people power and state power. And the two powers conflicted leaving the people frustrated. People could express their will through the House of Representatives only to see their will thwarted by US Senators. So they resorted to badgering their state legislative candidates on which person they would appoint to the US Senate and because appointments were staggered, the subject seemed to be always in the air. Entire campaigns of state candidates would revolve around the issue of “Who will you appoint?” and most often the candidate’s background and capabilities were overlooked because of the inordinate focus on “Who will you appoint?”. Many states held primaries by popular vote for US Senators to send a message to the state legislature of who the electorate wanted to see appointed. Things came to a head and finally the 17th got through because it seemed ‘natural’ for voters to vote directly for the US Senators.

I believe this 3-way tug-of-war between voters-state legislatures-US Senators is a the result of a flaw in the original Constitution. I imagine the framers could have seen this and designed a power for the House of Representatives to override votes of the US Senate by a supermajority just as Congress can override a veto of the President but this would have been disruptive to working relations between the House and Senate.

If the 17th is repealed, all this tension and dynamic will return and maybe with a vengeance because people have memory that just last year they were able to vote directly for a US Senator.

Now an amendment can be pulled together from much of the research of present scholars and personas such as Mark Levin, that is designed to patch the flaw that created the tension that led to the 17th. An amendment can be designed that can exist with or without the 17th Amendment. An amendment can be designed that leaves no opportunity for Congress or SCOTUS to twist it, misinterpret it or read into it what they will BECAUSE it can be designed to leave all such matters including compliance and enforcement in the jurisdiction of States, not the federal government.

Such an amendment would be a ‘new thing’ without a history. The 17th has a long history and we can anticipate that opponents to its repeal will dredge up all the negative on pre-17th America and attempt to shoot down a repeal. So I see the repeal of the 17th as a long term proposition and we need something now.

If we can get an amendment across the finish line that people like and that fulfills a lot of the pre-17th design for state representation in Congress, then it’s easier to repeal the 17th when people are comfortable supporting it because the new amendment is sufficient.

Take a look here to see a draft amendment that might work:

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

I know I’m pumping my own post but I would like to see people lay out their design criteria and make an attempt at drafting something to meet their criteria. It’s a good exercise because it makes people work and stop ranting. I can send whatever looks promising to the right people who I’m in contact with. I just want people to really focus on what we need. Don’t leave it to others to solve the problem. Get involved and get it circulated.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.