Ted Cruz didn’t say anything smart on Stephen Colbert’s show Monday night, so it’s saying something that two things stood out as especially idiotic. Here is the relevant exchange between Cruz and Colbert:
First, the Tenth Amendment. Cruz wimped out when asked about same-sex marriage, failing to just say no. That’s a curious thing about social conservatives these days: for all their bravado, they’re actually rather effete and demurring; they lack the courage to say what they think. Instead, they default to platitudes and euphemisms. So instead of just saying he opposed gay marriage, Cruz riffed about states’ rights. In so doing, he said that, under the Tenth Amendment, any issue that is not mentioned in the Constitution (like marriage) is left to the states.
But here is what the Tenth Amendment actually says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (Emphasis added.) Republicans have a lot of trouble with those last four words: namely, they seem not to know they exist.
The Tenth Amendment does not give all of the power held back from the federal (national) government to the states; it gives only some of that power to the states, reserving the rest (many would argue most) of that power to the people. And this debate was at the core of the Supreme Court’s decision in Obergefell v Hodges, the same-sex-marriage case. As to who may marry whom (since that issue is obviously not delegated to the national government), which one has jurisdiction over that issue – the states or the people? The Court said it was the people, and not the states, who have jurisdiction over that issue.
Right-wingers are often caught up in this fiction about things that are not mentioned in the Constitution, suggesting that if a right isn’t specifically listed in the Constitution, it simply doesn’t exist. In this regard, they ignore not just some of the Constitution’s words, but an entire Amendment, the Ninth. The Ninth Amendment says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In a document that is famous for its vagueness and generality, this one admonition seems quite clear, no?
Second, the role of judges. Cruz repeated his ignorant line that we don’t want to leave important questions about the rights of 320 million Americans to “5 unelected lawyers in Washington.” It is nearly impossible to believe that Cruz was once a clerk to a Supreme Court justice, and it is utterly impossible to credit the claim by some that Cruz is some kind of scholar. Because this might be the dumbest thing anyone has ever said about the Supreme Court.
Those who sit on the Supreme Court, although they come from a pool of lawyers, are not just lawyers. Here is Section I of Article III of the US Constitution:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
So you see, the judicial power is not vested in lawyers, but judges.
Cruz might want to muse a bit about all that other stuff in Section I of Article III – you know, that stuff about judges serving for life (“during good behaviour”) and never having their pay cut. Why would the founders require that federal judges (who get there by being appointed by the president and confirmed by the Senate) should be insulated like this? Might it be because judges are supposed to make decisions that will affect the population in ways that might arouse the anger and wrath of the majority or of vocal minorities?
Cruz has got his lemmings thinking that our country is governed (judicially speaking) by some ad-hoc committee of the American Bar Association rather than an institution occupied by judges whose authority is ordained by the United States Constitution.
This fool should never get anywhere near a courtroom, let alone the White House.
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By Brendan Beery