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Jan 24

Written by: Diana West
Sunday, January 24, 2016 10:53 AM 

Part 1 is here. 

A word cloud envelops the Ted Cruz campaign for president. "Consistent." "Conservative." "Reliable." "Consistent conservative," "reliable conservative." "Trusted." Or, as the tagline goes, "TrusTed."

This branding does not serve Ted Cruz well. After all, he is a politician. In his short career as a senator and presidential candidate, Cruz has already flip-flopped on vital immigration and trade issues. There is a pattern to his political "evolution." As a measure of the Trump effect, Cruz has moved from the globalist position to the nationalist position on Syrian refugess (for to against), Obamatrade (for to against), H1B visas (from calling for expansion to calling for a moratorium), birthright citizenship (from waste of conservative time to must end it). Now he even calls for a "wall that works." In this way, Cruz has moved to occupy brand new political terrain that Donald Trump by himself opened up (which is why Trump has my vote). 

Fine. Americans frequently forgive and forget flip flops. But dub Candidate A the Shining Knight of Consistency and don't be suprised when A's inconsistencies take centerstage, especially when Candidate A is all about branding Candidate B as ... inconsistent. 

Ted Cruz is also known to us as the "constitutional conservative," a moniker I never thought to question until I watched Canada-born Cruz dismiss and, then, on national television, distort and mock what is widely perceived to be the constitutionally conservative, or "originalist" understanding of the Constitution's "natural born" clause. (For the record, I commented on Cruz's ineligibility on such grounds in a syndicated column in 2013.) Thus, Cruz dismisses legitimate constitutional concerns which a voter might have as a laughing matter, all without merit. This would be one thing for a constitutional liberal. But the Official 2016 Republican Constitutional Conservative? Again, the branding becomes a liability, if not also an irritant.

Cruz's most vocal supporter on the natural-born-subject, Mark Levin, meanwhile -- Mr. Hail the Founding Fathers' Orginal Intent -- has for weeks on the air substituted ad hominem rants for cogent discussion. One evening, Levin went so far as to castigate a Fordham law professor who wrote a well-reasoned op-ed in the Los Angeles Times on the subject for having gone to what Levin called a "third-tier" law school. (NB: The school ranked higher than Levin's.)

All of this name-calling and noise is a color guard of red flags. What is it all about? "Any means necessary" to protect the constitutional principle from itself? Or something else? Hit the mute button and it does seem preposterous for an "originalist" to insist that in the run-up to, say, the 1816 presidential election, the Founding Fathers would have regarded a candidate born in the British colony of Canada to an American mother and a Spanish father to be a "natural born" American; however, that is exactly what constitutional conservatives out there are saying, with Mark Levin yelling into his mike: "Stop chasing liberal arguments! Don't accept cults of personality! Be freedom-loving, Constitutional conservatives ... and let's beat the liberals!" 

Re-education camp, anyone?

Back at the Cruz presidential campaign website, of course, all is serene on the page called "Our Standard: The Constitution."

This image is what we see  


before we even get to the text, which states:

Ted Cruz has spent a lifetime fighting to defend the Constitution — our nation’s founding document and the supreme law of the land — which was crafted by our founding fathers to act as chains to bind the mischief of government and to protect the liberties endowed to us by our Creator.

A list of Cruz's achievements in the legal arena follows -- mainly defending religious liberties and second amendment cases.

All well and good -- and wonderful, even. But what about the past three years during which Cruz has been not a lawyer but a US senator? In these years "our standard, the Constitution," has never been under more unrelenting and outrageous attack from a dictatorial executive branch wholly unbound by any constitutional "chains" whatsoever. Even liberal law professor Laurence Tribe testified in 2015 that Obama's EPA was engaged in "unconstitutional" actions, noting: "Burning the Constitution should not become part of our national energy policy." For "living-breathing" constitutionalist Tribe, that's saying something. (Tribe says that he would actually vote his former A-student Cruz natural born, by the way, adding: "but Cruz always made fun of that way of looking at the Constitution.") 

It is here, on this central battlefield where the Constitution is ablaze, that we find that the consistent, reliable and trusted defender of the Constitution is AWOL. 

He is not by any means alone. AWOL, too, are the rest of the the members of the US Senate and House of Representatives.

Consider the following episode (discussed here by Andrew Bostom).  

Last year, the Senate passed the Corker-Cardin bill, which, in essence, canceled its own constitutional treaty-making-powers with regard to the calamitous Iran deal. When the bill came out of committee in mid-April 2015, Levin (ironically), widely known for keeping that so-called originalist hawkeye of his on the Constitution, commented: "The US Senate just rewrote the treaty provision of the Constitution." At the same time, Richard Viguerie's Conservative HQ editor George Rasley promptly labeled Corker a "traitor," describing the bill as a "craven [betrayal] on the Senate's constitutional role as the final word on whether or not the United States agrees to a treaty."

The Corker bill later passed the full Senate by a vote of 98-1.

Was Constitution-defender Cruz the one "nay" vote?


One week earlier, it seemed likely at least that Cruz would support and defend the Senate's constitutional role from its own self-mutilation. On April 29, 2015, in an op-ed in the Washington Times, Cruz lamented the Corker bill, noting the bill "reverses the ordinary presumptions. Instead of the President needing 67 Senate votes to ratify the Iran deal, it would now require 67 votes to stop an Iran deal. This makes no sense." He further wrote that without his amendment strengthening the bill, he would have "a great deal of difficulty supporting it." 

One week later, on May 7, 2015, his own amendment having failed, Cruz was nonetheless among the 98 senators to vote for the Corker bill.

Sen. Tom Cotton, a veteran and, like Cruz, a Harvard Law School graduate, voted no.

Cruz's rationale was political:  

Ultimately, I voted yes on final passage because it may delay, slightly, President Obama's ability to lift the Iran sanctions and it ensures we will have a Congressional debate on the merits of the Iran deal.

(And that worked out well...)

Cotton's rationale, on the other hand, was constitutional: 

A nuclear-arms agreement with any adversary—especially the terror-sponsoring, Islamist Iranian regime—should be submitted as a treaty and obtain a two-thirds majority vote in the Senate as required by the Constitution.

For Cruz supporters, this one vote is unlikely to be more than a minor disappointment. After all, they will say, Cruz  has promised to "rip to shreds" the Iran deal if he becomes president. But it is relevant when considering whether Cruz -- whether Marco Rubio, Rand Paul or any other US lawmaker today -- deserves the mantle of consistent-conservative-Constitution-defender, the mantle Cruz most ostentatiously wears as a presidential candidate.  

What does such a mantle even mean in our post-Constitutional times?

Then again, why is it that our times are post-Constitutional in the first place?

Is it all the executive branch's fault?

Of course not.

Thinking over such questions, I realized that my own enthusiasm for Sen. Cruz began to flag when it became plain that he, along with his colleagues in the House and Senate, had elected not to defend the Constitution. 

A short review.

In December 2013, liberal law professor Jonathan Turley testified before a House subcommittee that the concentration of executive branch powers under Barack Obama had reached a point where what the president was doing was "not simply posing a danger to the constitutional system. He's becoming the very danger the Constitution was designed to avoid.” 

Michael Cannon of the Cato Institute also testified that Obama's lawmaking by executive actions "has more in common with monarchy than democracy or a constitutional republic.”

Such testimonies were stunning -- seemingly shattering the force field of media and political silence in which Obama operated.

Cannon further made the vital connection between government lawlessness to lawlessness at large: “If the people come to believe that the government is no longer constrained by the laws, then they will conclude that neither are they.” (See more in my column on this extraordinary hearing here.)

Turley' written testimony continued:

Each branch is given the tools to defend itself, and the framers assumed that they would have the ambition and institutional self-interest to use them. That assumption is now being put to the test as many members remain silent in the face of open executive encroachment by the executive branch.

And then what happened?

To be sure, the "lawlessness"  of President Obama became something of a right-wing oratorical theme, and particularly with the younger GOP firebrands, notably freshman Sen. Cruz among them. Cruz would boldly call out the serial, unconstitutional actions of Barack Obama, and condemn his "imperial presidency," which, in Cruz's estimation, had no precedent in all of US history.

And then what happened?

Cruz, I find, went on to compile a report listing 76 abuses of power committed by President Obama. He issued another extremely dire warning.

An imperial presidency threatens the liberty of every citizen. Because when a president can pick and choose which laws to follow and which to ignore, he is no longer a president.

In no uncertain terms, Cruz, Constitution-defender, was declaring that a tyrant held the White House.

And then what happened?

Was this the opening of a national debate about impeachment? Was it even early stages, which would necessarily entail the education of citizens to understand what it means to safeguard "checks and balances," and to learn, probably for the first time, what tools, notably including impeachment, the legislative branch possesses to address executive branch seizures of power? 

No and no. Nothing happened. Every lawmaker, Sen. Cruz among them, returned to politics as usual. Even for Washington, it was a weird moment. The danger to the Constitution from Barack "I've got a pen/phone" Obama was in the open; it was publicly acknowleged, even by some in liberal academia; it was called out in press and political platforms; it was even enumerated. But nothing happened. A topical book by conservative author and former attorney Andrew C. McCarthy, appeared, curiously making the case for impeachment while simultaneously making the case against it as being politically premature. 

Politicaly premature? Tell Churchill on opposing Hitler; tell Reagan on opposing international Communism. To my mind, the constitutional crisis today is an even greater existential assault against the United States. It is a sign of our post-Constitutional times, however, that no elected official has emerged who takes his oath of office seriously enough to decide the Constitution counts more than politics. 

Thus, it is this mass abdication by the men and women whom We, the People choose to send to Washington that explains why it is we live in post-Constitutional times; why our Constitution has gone undefended against an executive branch run amok; why it is that Obama's fundamental transformation of the nation continues, unchecked by any of the only elected officials in the land legitimately authorized and, indeed, obligated to try to stop it. I think this helps explain why so many Americans are fed up with the political Right: from the GOP, to the "establishment" to the "true conservatives." We are all little black sheep who have lost our way.

All of which means that Sen. Cruz is no worse than his peers; but on this fundamental count, anyway, he is indistinguishable. It is also the case that none of our elected representatives has dared to investigate or even acknowlege the epically outrageous case of document fraud against President Obama put together by Sheriff Joe Arpaio. That may seem like another story, but it is central to the same ongoing mass abdication regarding the Constitution that tragically marks our times. 

I didn't really put this all together until recently. But looking back at Sen. Cruz's early reaction to the impeachment question when it came up in August 2013, I would say the writing wasn't just on the wall.

“It’s a good question,” Cruz responded, “and I’ll tell you the simplest answer: To successfully impeach a president you need the votes in the U.S. Senate.” 

That's his opinion. In my opinion, Congress's finest hour in my memory is December 19, 1998, the day the US House of Representatives impeached President Bill Clinton. Despite his wham-bam acquittal in the U.S. Senate, Bill Clinton remains the only impeached president in the 20th century. That counts as success in my book.

The 2013 article continues:

He noted that the Democrats controlled the Senate currently. 

In an interview with National Review Online after the Q&A, Cruz suggested he would not pursue impeaching Obama in 2014, even if Republicans then controlled both the House and Senate. 

“I think we should focus on fights that would make a difference, restoring economic growth and opportunity and fights that we have a realistic prospect of winning,” he says. 

But in regards to impeaching Obama,  “that’s not a fight we have a prospect of winning,” Cruz concludes.

If such expediency isn't Washington business-as-usual, I don't know what is.

Expediency, of course, is not in itself a sin. It is not against the law. But it is not the armor of the pure prince of principle, supporting and defending the Constitution against the tyrant at every turn.

Like the unicorn, there isn't one. 

This primary season calls for decision-making with many angles, many levels, many questions. It is a decision to make among men, not paragons, and among policy priorities. Post-constitutional though we may, though, it is not a process in which the Constitution should ever be used as a prop.


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