{"id":5378,"date":"2015-08-10T23:11:07","date_gmt":"2015-08-11T03:11:07","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=5378"},"modified":"2015-09-16T20:26:28","modified_gmt":"2015-09-17T00:26:28","slug":"the-weird-jurisprudence-and-constitutionalism-of-senator-cruz","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=5378","title":{"rendered":"The Weird Jurisprudence and Constitutionalism of Senator Cruz"},"content":{"rendered":"

The Big Picture Home Page<\/a>\u00a0|\u00a0Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n

The Weird Jurisprudence and Constitutionalism of Senator Cruz<\/h2>\n

A different version of this piece was published\u00a0in the Daily Record\u00a0August 18, 2015<\/p>\n

I write about policy in this column, not politics, but sometimes a focus on policy inescapably draws one\u2019s attention to politicians. This is one of those times. Nearly sixteen months before the next election (thanks to our agonizingly long presidential campaigns), one of the candidates, Ted Cruz, has sought to distinguish himself by his comment-worthy arguments about jurisprudence and constitutionalism. Unfortunately, the comments must be critical.<\/p>\n

On paper, Cruz is eminently qualified to talk jurisprudence and constitutional policy. He\u2019s a Harvard Law grad whose professors were reportedly dazzled by his intellect<\/a>, a law review editor, a former Supreme Court clerk, and a former Texas Solicitor General. One would expect something substantial from him, whether one would agree or disagree with what he says. In reality, though, Cruz has proven in recent months to be an unceasing font of balderdash.<\/p>\n

“Liberty is in the Balance”<\/h3>\n

Let\u2019s start with Cruz\u2019s commentary on the Supreme Court\u2019s recent ruling in King v. Burwell<\/em><\/a>. The petitioners there attempted to kneecap Obamacare by persuading the Court that the phrase \u201can Exchange established by the State\u201d in the enabling legislation[1] referred only to health insurance exchanges established by state governments. Had that interpretation prevailed, taxpayers in any state that had failed to establish its own exchange and left the exchange establishment process to the federal government would not receive the tax credits Congress had clearly intended for them. Of course the United States is, in common parlance, a \u201cState\u201d as well. (State Department? Reasons of state? Church and State? Stateless person?) So the phrase was obviously ambiguous.<\/p>\n

The Supreme Court, doing what courts for hundreds of years have done when examining ambiguous statutes, construed the ambiguity. It held that federally-administered exchanges were also established by \u201cthe State\u201d within the meaning of the statute. This construction was in keeping with a time-honored cardinal rule of statutory construction that courts should effectuate the intent of the legislature that had passed the statute \u2013 an intent as to which in this instance there was no legitimate dispute. The only suspense was whether the Court might go along with Obamacare\u2019s foes and declare a \u201cgotcha\u201d and contravene <\/em>Congressional intent merely because of an ambiguous turn of phrase.<\/p>\n

When the Court refused to do that, Cruz thundered: \u201cThis must stop. Liberty is in the balance.\u201d He characterized this business-as-usual decision as \u201credefining the meaning of common words.\u201d<\/a><\/p>\n

“Redefinition of an Institution”<\/h3>\n

Of course Cruz was far more upset at the Supreme Court\u2019s action the following day in the Obergefell<\/em><\/a> case, which held that states must license and recognize same-sex marriages. The Court\u2019s action there, Cruz said, \u201crequired all Americans … to accept the redefinition of an institution ordained by God and long predating the formation of the Court.\u201d Even setting aside the hyperbole, the statement is inaccurate. The Court did not \u201crequire all Americans\u201d to \u201caccept\u201d same-sex unions; it just blocked state governments from preventing or disregarding them.<\/p>\n

As discussed in last month\u2019s column<\/a>, the Obergefell<\/em> court recognized it was overriding popular will in many instances and the legislative enactments of many states, but held that as it was dealing with \u201cfundamental rights,\u201d it was within its proper province in doing so. It is the very definition of fundamental rights that they trump electoral or legislative action. I have not found any writing of Cruz\u2019s in which he acknowledges the fundamental rights doctrine, or in which he specifically responds to Justice Kennedy\u2019s analysis applying that doctrine to same-sex marriage. But he is nonetheless incensed on behalf of the state legislatures whose enactments the Obergefell<\/em> Court invalidated.<\/p>\n

Truly Wacky<\/h3>\n

Even before the Obergefell<\/em> ruling, Cruz was trying to derail the Court\u2019s action on same-sex marriage. Back in April, he had proposed a \u201cProtect Marriage from the Courts Act\u201d<\/a> that would have deprived federal courts of the jurisdiction to consider constitutional challenges to any state law defining marriage as between one man and one woman. By cutting off access to federal courts that might say otherwise, this legislation in effect would have rendered Congressional protection for state laws protecting \u201ctraditional marriage\u201d superior to any Supreme Court ruling, in effect substituting the legislative branch for the judicial branch, at least for this purpose. In this area, it would have made the Supreme Court unable to protect constitutional rights or direct the development of constitutional doctrine. Truly wacky stuff.<\/p>\n

After Burwell<\/em> and Obergefell<\/em>, Cruz went further, proposing retention elections for Supreme Court justices.<\/a> He wrote that the Court was unaccountable, that the existing constitutional remedy of impeachment was not a workable way to enforce accountability, and that therefore the Constitution should be amended to make justices recallable by retention elections.<\/p>\n

Anti-Minoritarian<\/h3>\n

That proposal would be an end run around the entire constitutional order. Federal judges sit \u201cduring good behavior,\u201d i.e. for life, absent serious misconduct. The trouble with allowing popular will to shorten that tenure is that this would render the Court, like the Legislative and the Executive, a political branch.[2] And as stirring as the notion may be of having every key player in government be electorally accountable, one effect is that it tends to reinforce majority rule. Unmitigated majority rule is only a great thing if you do not happen to be in a minority: if you do not happen to be a gay person who wishes to marry, or a black who wants to vote in southern states affected by the Voting Rights Act, legislation Cruz is on record as opposing<\/a>, or a woman threatened by domestic violence who wants the protections of the Violence Against Women Act, whose renewal\u00a0Cruz voted against<\/a>. As Obergefell<\/em> demonstrated, we need a branch of government that is not<\/em> politically accountable; it is needed precisely to protect us from the anti-minority policies Ted Cruz\u2019s ilk always seem to push.<\/p>\n

It is no answer to point out, as Cruz has done, that many states elect their appellate judges without ill effect. As Cruz should know, popular say in the tenure of appellate judges is not a universal success. A recent demonstration is the electorally-fueled return to office of dismissed Alabama Chief Judge Roy Moore, who has openly rebelled against the Supremacy Clause of the Constitution over both First Amendment and same-sex marriage issues<\/a>. (Cruz, not surprisingly, joins Moore in viewing compliance with Obergefell<\/em> by court clerks as optional.<\/a>) But even where electoral say on appellate judges works better, it works in large measure because the U.S. Supreme Court still holds the whip-hand over state courts when it comes to interpretation of the all-important federal Constitution. State courts must still bow to that interpretation, and it serves as the primary safeguard of minority rights in this land.<\/p>\n

“Lawless and Radical”<\/h3>\n

It is not merely the bizarre quality of Cruz\u2019s views; it is the vehemence with which he expresses them. Thus, President Obama\u2019s recently-announced EPA regulations on power generation<\/a> are not merely a \u201clawless and radical attempt to destabilize the Nation\u2019s energy system\u201d but also \u201cflatly unconstitutional.\u201d<\/a> No doubt troubles Cruz\u2019s outrage.<\/p>\n

The fact that we as a nation have never lived in a world where courts didn\u2019t construe statutory ambiguities, where legislative fiat didn\u2019t yield to fundamental rights, where Supreme Court justices weren\u2019t protected from political repercussions, or where the government couldn\u2019t address national emergencies like global warming, is of no moment. Cruz knows all.<\/p>\n

_______________<\/p>\n

[1]. 42 U.S.C. \u00a7 18031(f)(3)<\/a>.<\/p>\n

[2]. A point made by George Will<\/a>, no flaming liberal in politics or jurisprudence.<\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

The Big Picture Home Page<\/a>\u00a0|\u00a0Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Unmitigated majority rule is only a great thing if you do not happen to be in a minority: if you do not happen to be a gay person who wishes to marry, a wish the Supreme Court granted over Cruz’s strenuous opposition, or a black who wants to vote in southern states affected by the Voting Rights Act, legislation Cruz is on record as opposing, or a woman threatened by domestic violence who wants the protections of the Violence Against Women Act, whose renewal Cruz voted against. As Obergefell demonstrated, we need a branch of government that is not politically accountable; it is needed precisely to protect us from the anti-minority policies Ted Cruz\u2019s ilk always seem to push.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[],"class_list":["post-5378","post","type-post","status-publish","format-standard","hentry","category-bigpicture"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/5378","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=5378"}],"version-history":[{"count":8,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/5378\/revisions"}],"predecessor-version":[{"id":5403,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/5378\/revisions\/5403"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=5378"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=5378"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=5378"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}