Consider that in Republican Ted Cruz, the junior senator from Texas, we have a presidential candidate who during his high school years in Houston was among several students who met twice a week to read the Constitution and the Federalist Papers and the Anti-Federalist Papers and the even more obscure debates on ratification. All of that while also memorizing the entire Constitution in shortened mnemonic form. Thus, in case you didn’t know (and Cruz still does), “TCC NCC PCC PAWN momma WReN” stands for the powers of Congress in Article I, section 8, of the Constitution: “taxes, credit, commerce, naturalization, coinage, counterfeiting, post office, copyright, courts, piracy, Army, war, Navy, militia, money for militia, Washington, D.C., rules and necessary and proper.” Cruz and the other “Constitutional Corroborators,” as they were called, toured Texas, going to Rotary Clubs and other civic associations, where, from memory, they demonstrated their mastery of the Constitution. The nonprofit sponsoring the program paid them college scholarship money for each speech.
“It became a burning passion,” Cruz told me recently, adding that if he had been asked as a teenager what he wanted to do in life, defending the Constitution would have been at the top of the list. “I readily admit I was kind of a weird kid,” he said. If so, he was a weird kid who knew his Constitution.
It’s not surprising that in college (at Princeton) Cruz did his senior thesis on the Ninth and Tenth Amendments, or that, after earning his law degree from Harvard, he held jobs in which constitutional interpretation was often a daily undertaking—clerking for Chief Justice William Rehnquist (in 1997), serving five years as solicitor general of Texas (2003 to 2008), and representing private clients in the federal courts, winning plaudits for his skillful advocacy. Now, not surprisingly, Cruz the presidential candidate has what might be called a constitutional agenda.
Last spring, in announcing his candidacy at Liberty University, Cruz effectively identified this agenda when he said, “It is time to reclaim the Constitution.” As president, he would pursue that goal in a variety of ways—starting on January 20, 2017. A newly sworn-in President Cruz would “rescind,” he tells me, “every illegal and unconstitutional executive action taken by President Obama.”
The president, of course, has taken a lot of “executive actions.” They include executive orders, presidential memorandums and directives, and informal guidance and orders from agencies. They have dealt with a variety of domestic policy areas—including health care and immigration—and also have been used to secure diplomatic objectives, including the Iranian nuclear agreement. And they will remain in force as long as whoever is president agrees with them or at least is not troubled enough by them to rescind them.
Cruz is that troubled. He has his differences with the actions on policy grounds, but his fundamental objection is constitutional. “Obama has intruded into the Article I authority of Congress to make the laws,” he says. Cruz is referring to Article I of the Constitution, which begins: ‘‘All legislative powers herein granted shall be vested in a Congress.” And not, Cruz is quick to say, in the president.
Obama actually conceded this point in 2011 when he said that “doing things on my own . . . [is] not how our system works.” Cruz wants to deny legitimacy to the Obama precedent of unilateral lawmaking and establish through his own presidency a precedent for execution of the office that respects the lawmaking authority of Congress.
Cruz promises that as president he would “take care that the laws be faithfully executed,” the president’s job as stated in Article II. Cruz says this clause admits of no exceptions so long as a law is constitutional: If a president disagrees with it on policy grounds, he must still see to its faithful execution—as Obama has at critical times failed to do, says the senator.
Cruz also wants Congress, which is granted only limited powers, to be more constitutionally disciplined when making law. In his campaign book, A Time for Truth, Cruz writes, “For far too long, Congress has passed legislation with no one in the Senate once asking what should be the preliminary question: Do we have the constitutional authority to enact this bill?” A Cruz administration would press that question when necessary, and if it found such authority lacking, the legislation might receive a presidential veto.
The senator told me he wouldn’t abandon the practice of attaching statements to bills he signs as president. He says signing statements can be useful for directing an administration as to how it should implement a new law. But Cruz seems wary of signing statements, observing that a president shouldn’t use one to advance an interpretation of the law being signed that is plainly at odds with it. “You can’t just change the law,” he says.
Cruz’s constitutional agenda also includes the appointment of justices and judges. Cruz supported John Roberts in 2005 when President George W. Bush named him to succeed Chief Justice Rehnquist. In a pair of challenges to the Affordable Care Act, Roberts, writing for the Court, preserved the statute. On the basis of his leading role in those two cases, Bush’s appointment of Roberts has been sharply criticized by conservatives, including Cruz, who declared during the September candidates’ debate that his support of Roberts “was a mistake.” Cruz said that Roberts, an “amazingly talented lawyer,” was selected because he didn’t have “a long paper trail” demonstrating his judicial conservatism. As Bush and his aides understood, that might have precipitated “a bloody [confirmation] fight” and cost the president political capital.
Cruz told me that unlike George W. Bush he would be prepared to have that fight and pay the cost. Noting that the next president might have as many as four vacancies to fill, Cruz says, “There are almost no decisions I would make as president that I would regard as more consequential than those for the Court.”
Cruz says he might appoint a federal appeals court judge in the case of a vacancy, but he would not make prior service as an appellate judge a requirement. Cruz observes that Rehnquist served in the Justice Department as head of the Office of Legal Counsel and had his critics—but was unmoved by what was said about him during his more than 30 years on the High Court. “What is important,” Cruz told me, “is a demonstrated track record in the face of adversity—what happens when you get firebombed by the left.”
As for the approach to judging he would seek in a nominee, Cruz says, “Most important is whether [the candidate] will faithfully apply the law using necessary judicial tools, irrespective of his or her political preferences.” Oddly, Cruz’s answer doesn’t reach constitutional interpretation or the debate among conservatives regarding restraint and activism. In any event, someone who is “faithful” to the law and has been “firebombed by the left” will probably have an approach to constitutional interpretation that satisfies Cruz.
Other Republican candidates have talked about the Constitution, but none so extensively as Cruz. Alongside his “big bold legislative objectives”—in his first year in office, he wants to pass a flat tax and repeal and replace Obamacare—Cruz has made “reclaiming the Constitution” a prominent theme in his bid for the White House.
It is not obvious, however, what that phrase means. Which is why it’s necessary to ask what the problem is for which reclaiming the Constitution is the cure.
Cruz believes that things are bad and getting worse. He spends much of the introduction to his book on the national debt, which during the Obama administration has grown from $10 trillion to $18 trillion. He tells me that “if we keep going down this path, the next generation will not be able to address their needs and priorities but instead will spend their lives working to pay off the debt.” That same debt, says Cruz, quoting former chairman of the Joint Chiefs of Staff Mike Mullen, is also “our greatest national security threat.”
As for how we got into this mess, the answer I take from my interview with Cruz, and from his book, is that we quit using the Constitution as a guide to the conduct of our politics and thus lost the discipline it imposes. We ignored the limited government the Constitution designed and instead allowed government to take on more and more concerns. And we increased spending to pay for bigger government, borrowing larger and larger amounts to keep it going.
Meanwhile—another bad thing—big government has proved to have illiberal effects. Cruz notes that the Internal Revenue Service has targeted citizens for their political speech, and the Department of Health and Human Services has violated religious liberty in the course of administering Obamacare. Cruz has Obama in his sights—“the most lawless president we’ve ever seen,” he calls him—but the senator also faults other political actors dating back to the 1960s. In truth, the departure from the Constitution started well before the ’60s.
Also bad, to Cruz, is what has happened to self-government: We have less of it than we used to. Cruz points to Obergefell v. Hodges, the case handed down four months ago in which the Court created a constitutional right to same-sex marriage, even though, says Cruz, the justices had no authority to do that and the matter thus was one for the people in their states to decide. For Cruz, Obergefell is what you get when enough justices depart from the Constitution. Here, too, we are not dealing with a new phenomenon: Government by judiciary has a long history, most egregiously in the past half-century, with Roe v. Wade (1973, creating a woman’s right to abortion) the worst decision before Obergefell.
“Reclaiming the Constitution” thus is the answer to the problems resulting from our departure from it. Cruz is saying: Things will get better once we return to it and abide by its terms.
In the GOP primary polls, Cruz typically garners between 5 and 8 percent. He’s in the middle of the pack. He has the money to stay in for a long while, and a campaign strategy that may serve him well in Iowa and the South, pitched as it is to Tea Party enthusiasts and religious conservatives. He is definitely not an “establishment” candidate. Elected in 2012, Cruz is best known in the nation’s capital for his challenges to the leadership of both parties.
Cruz’s chance of winning the Republican nomination seems remote. But his candidacy is interesting because it tests whether voters agree with him about the country’s condition, the causes of that condition, and the proper medicine. A problem for Cruz may lie in the extent to which, in the minds of Americans, the Constitution of 1787, as amended, has been supplanted by the so-called living Constitution, its elasticity making possible the politics of “transformation” so assiduously practiced by Obama and the Democratic party. In this view, the government may do almost anything in the name of improving the lives of citizens, even if it swells the national debt and burdens individual rights.
I ask the Constitutional Corroborator whether a constitutionalist majority will emerge and prevail in 2016. He replies that all across America people are waking up and recognizing that “what we are seeing doesn’t make sense and that we must get on a new path.” Up, shall we say, from the living Constitution.
Terry Eastland is an executive editor at The Weekly Standard.
