Ted Cruz, Constitutional Conservative?

In the past few years I have noticed an increase in the use of the term “constitutional conservative”, usually to describe a candidate or politician who is associated with the Tea Party or is otherwise generally considered more conservative by some degree. I have seen this term used a lot lately to describe Senator Ted Cruz, the recent winner of the Iowa caucus. Perhaps I am wrong, but I don’t recall this term being used much prior to a few years ago, which is why I noted it with some curiosity as it began to appear more frequently. Jack Hunter also notes the newness of the term in this article from 2012.

Presumably, a constitutional conservative is one who believes the U.S. Constitution should be strictly interpreted and abided by as originally intended by the Framers. Quaint notion, I know, but what confuses me about the sudden appearance of this term, is that there already exists a perfectly workable term to describe this political position. Such people have previously been called Constitutionalists.

Now it must be conceded that there is some room for confusion here, because almost every pundit and politician believes or at least pretends to believe that the policies he promotes are within the bounds of the Constitution. Few American politicians announce their intentions to willfully ignore the Constitution or articulate any qualms with the Constitution. Both opponents and advocates of gun control, for example, generally believe the Constitution is on their side. The same is true of the abortion issue and on and on, but issues-activists don’t usually describe themselves as Constitutionalists either. Even people and organizations who place a particular emphasis on the Constitution, such as the ACLU, are not commonly called and don’t self-describe as constitutionalists. ACLU types might call themselves civil libertarians, for example, and they come to conclusions regarding the Constitution that are quite at odds with people who identify as Constitutionalists.

Despite some opportunity for confusion, “Constitutionalist” has over time come to mean a pretty specific set of beliefs, especially among people who identify themselves as such and use it to favorably describe others. Constitutionalists believe that the Constitution should be interpreted and followed as originally intended by those who wrote and ratified it. They reject the idea that the Constitution is a “living and breathing” document. Unless it has been specifically amended otherwise, they believe, the Constitution means now exactly what it meant in 1787 – 1789.

For the Constitutionalist, the Constitution is not primarily a document that outlines what the federal government can’t do, but is rather a document strictly describing what the federal government is authorized to do. The sine qua non of Constitutionalism is the belief in “enumerated powers” which flows from the determination that this was the intent of the Framers and state ratifying conventions. Along with this belief in enumerated powers, there are other beliefs that generally travel together, some to a greater or lesser degree. Constitutionalists reject the broad interpretation of the Commerce Clause and the General Welfare Clause. They reject judicial supremacy with regard to who has the “final say” in interpreting the Constitution, and some reject the practice of judicial review outright. (This is a bit of an intra-constitutionalist feud.) Constitutionalists do not automatically defer to the most recent Supreme Court decision to settle the constitutionality of a matter because they believe many such decisions are in error since they were not reached by originalist methods. Rather, they appeal to the original intent of the Framers each time a Constitutional question arises. They reject “incorporation”, meaning they don’t believe the Bill of Rights was originally intended to be applied to the states, and most reject that this was the original intent of the 14th Amendment as well. Constitutionalists also tend to be open to the idea of state nullification and interposition and even secession as remedies for an overreaching federal government.

These beliefs can be, especially when taken as a whole, rather jarring to the modern consciousness which has come to accept the conventional wisdom on such matters. Nevertheless, they represent a consensus that serious Constitutional thinkers arrive at by the consistent application of the originalist methodology.

So how do so-called “Constitutional conservatives” differ from Constitutionalists proper? My hunch from the start has been that its original popularizers wanted a term that invokes the good feelings most people and especially conservatives have for the Constitution without all the baggage associated with “Constitutionalist”, which has truly radical implications by modern standards, and this appears to be how the word is generally used. I searched “define constitutional conservative” and what I found were a lot of vague invocations of Constitutional “principles” and other general principles (fiscal responsibility for example) with very little explanation of how the Constitution was any more than a totem in this formulation. One article revealed by my search introduced the concept and then proceeded to define it by quoting…the Declaration of Independence? (The article did, however, confirm my impression that this is a term of relatively recent origin.) 

Constitutional conservatives seem to cherry-pick their application of strict constructionist principles to suit their needs. They invoke the Constitution to oppose the Obamacare mandate, for example, but are seemingly untroubled by the fact that a similar argument could be made against Medicare and Medicaid, the FDA, etc.  I don’t require that every candidate I support fall on his sword by inveighing against Medicare and the FDA or whatever on enumerated powers grounds. Dismantling the 80 – 90% +/- of the federal government that isn’t actually constitutionally authorized isn’t politically or logistically feasible at this time, but I do ask that if the Constitution is invoked to describe your politics, you not rhetorically concede the Constitutional legitimacy of such programs.

The aforementioned Ted Cruz and his supporters demonstrate well this disconnect between Constitutional conservative and Constitutionalist. For example, if you want me to take seriously your claim to the title “Constitutional conservative”, you have to at least attempt to address the eligibility question from an originalist perspective. You can’t cite current law or a recent court case or conventional wisdom and pronounce the matter settled. While I think there is a growing consensus among serious originalists that Cruz is not eligible, an originalist case can arguably be made that he is, but you at least have to attempt to make that case. The original intent of the Framers with regard to the “natural born citizen” requirement seems not to have even occurred to many Cruz supporters I have interacted with, and they often seem perturbed by the mere suggestion that they need to address it. Perhaps if you want me to accept your professed devotion to the Constitution, maybe you shouldn’t swear your fidelity to a far off foreign country in your rather ungracious Iowa victory speech. Where the heck is standing with Israel in the United States Constitution?

So far as I can tell, Ted Cruz isn’t even trying to represent the original intent of the Constitution or the spirit of the American Founders. favicon

11 thoughts on “Ted Cruz, Constitutional Conservative?”

  1. If Captain Canada would sell out persecuted middle east Christians for not kissing Israel’s ass, he would surely do the same to my country.

    Si el capitán Canadá vendería a cabo perseguido a los cristianos de Oriente Medio por no besar el culo de Israel, él luego hacer lo mismo con mi país.

  2. It’s good to have the discussion about originalism, because without some form of reference to the Founders’ intent, the Constitution means merely whatever some group of old Jewish lesbians says it means, and that’s just a retarded idea. For instance, would you buy a home on a thirty-year mortgage based on a document whose interpretation may vary widely over time?

    Take a look at the wiki for originalism, it’s actually quite funny. Intent is quite clearly the only logical means of interpretation, but here they are spending much larger amounts of text on original meaning, semantic originalism, framework originalism, and methodology. I can pretty clearly see the Frankfurt School’s Critical Theory doctrine at work in these later interpretations, and this Dworkin guy referenced, where have I heard that last name before?

    Also, at this point in time, any mention of the Tea Party sets off alarms for me. After having a ringside seat to the co-opting of the movement, my gut reaction to spotting any Tea Party politico is to check whether my wallet is still in my pocket and wonder if my front door is firmly locked. You’re absolutely right to view people referring to themselves as “constitutional conservatives” in the same way. Rafael “Refito” Edward “Ted” Cruz is double cancer, both as Tea Party and “constitutional conservative,” and ineligible to run for POTUS.

    That said, I would like to take your post in two different directions which you may not have intended.

    First, the original intent of the Founders in several matters is very clear, and in today’s political environment, is also publicly inexpressable. The intent of the Founders was to have a State comprising a nation of WASPs with some number of negro slaves tolerated, and to build said State for the purpose of handing it down to their children, with immigration being tolerated only for WASPs from outside. The Preamble states the purpose and references “for ourselves and our posterity” pretty clearly; the first voting laws in the USA barred Catholics, non-whites, and even some radical reformation types like Quakers from the vote; both the 1790 and 1795 immigration acts were very clear as to the USA being a land for white people; and regardless of Amendments and modern interpretations of them, the fact that Indians weren’t made citizens until 1924 sort of blows the whole “birthright citizenship” notion out of the water. The USA was unquestionably founded by WASPs, for WASPs, based on English common law, and intended to tolerate immigration only from those compatible with the above.

    Second, there is a fundamental premise that seems to be implicitly accepted by most people when they are arguing for originalism, and that is that the purpose of the State is to follow some sort of founding document. This is wrong, and I would argue that the Preamble itself shows this. The purpose of the State is to rule a Country which is occupied by a single Nation. Those three capitalized words have meanings, folks, check a good etymology dictionary. The Nation, the people, come before the State, the polity or form of governance. See the section of the Preamble that states why and who for, “for ourselves and our posterity.” Having multiple Nations in one Country under one State isn’t too problematic so long as one is the vast majority and legally supreme, but having granted a vote – even on a limited basis – to a minority Nation inside the State makes it more problematic, and inviting other, incompatible, Nations in during the early 20th century made things worse, and led to several bits of legislation from 1960 to 1965 which, perhaps irreversibly, ruined the original intent of the Founders. At this point, I think it’s hard to avoid something like Victoria happening.

  3. It wonder if it would be easier to convince people democracy is dangerous than to get them to understand that the purpose of the constitution trumps any interpretation of it. Natural Law is up for vote on a regular basis and people still act like that’s a legitimate system. Trump did say “we think of this as war” though, which is completely accurate. I think of it as 4GW counterrevolution.

  4. One might *think* so, but no, the mass of men are incapable of dealing intellectually with that argument and/or too committed to behaving emotionally to broach the subject with; coincidentally, those are two of the reasons why universal suffrage democratic systems are dangerous. There’s so much wrong with the political ideas extant in our society and taught to our children that it would take multiple essays to deal with, and one big thing is that many practically worship “democracy” as a God and consider our founding documents as some kind of Bible, which, appropriately, most have never read through completely.

    If war is politics by other means, it follows that politics is war. Literally the political system is merely a means to decide whose will shall be enforced upon all others in the State; it IS civil war, it ALL is, the defining aspect of what we call “politics” is simply where it lies on the continuum of violence. So it’s appropriate to apply many theories of war to politics as well: do we stick with the tactics of line and column? do we give the opponent the high ground? do we refrain from psyops? how do we deal with asymmetrical power levels? Etc.

  5. “a constitutional conservative is one who believes the U.S. Constitution
    should be strictly interpreted and abided by as originally intended by
    the Framers” Beyond this, according to Glenn Beck, the Constitution is a divinely inspired document like the Bible!

  6. I’d have to become an anarchist to think all politics is war. It’s funny hearing Ann Coulter mentioning how women shouldn’t vote. It’s not just women of course. I’m waiting for Trump’s inaugural speech to say, “You know, it used to be that not everyone voted.”

  7. You’d have to become a realist, not an anarchist.

    The State is force used to impose the will of those who rule; politics is a “gentlemen’s agreement” on the method used to determine who is the ruler. This is different from war only in the methods used to determine who the ruler is, because both are, in essence, about one party using force to rule the other.

    Anarchism is simply one political form among many.


  8. When Ted Cruz voted for the Corker Amendment he was hardly acting as a constitutional conservative.The amendment essentially denied the Senate their constitutional responsibility for the approval of treaties with a two thirds majority by voting to allow passage of the Iran Deal unless opponents could muster two thirds disapproval. Constitutional Conservative my foot.

  9. Sad I just found this article. I was fairly impressed with the article, in parts. Funny, everyone making a comment is neither holding to the EXACT way and meaning they should be whether dissenting or attempting to tear this “Title” down completely. It, to me, is so funny how progressives, no matter the party, seem to think the Constitution is up for “interpretation”. It’s not. Bill Clinton may have gotten away with playing “guess that meaning” when it comes to words, however our forefathers were honest, forthright, and made no bullshit about the words they chose to use to put the Constitution together.

    They took many different points of view. They fought, argued, bickered, snapped, screamed, all the crap politicians do today save one major factor, They all worked together, they hammered out their differences, because they sincerely believed that this beautiful country was MORE IMPORTANT than they were. They left a way to have future American leaders to make small adjustments they knew would be needed as the world changed, but all for the betterment of the Country, for ALL people, and many, many people were needed to make those changes. But that is IT. Small changes. The Document and its principles were set forth so that all could understand them, NOT so only scholars and lawyers could or try to come in and begin to dissect the definition of the word “is”. Which is exactly what progressives want to try and make people believe they CAN do, so they could then achieve some rancid political end they believed they were “Entitled to” , or must have, because otherwise all the “killing” would never stop.

    I’m sorry, but as the saying goes, the more things change, the more they stay the same. There is NOTHING all that massively different today that it was back in their time as far as dealing with the Constitution goes. They knew people would try and monopolize, maybe even attempt to destroy this incredible way they had laid out trying to show the way to always keep the Republic. I know this article was written awhile back, but looking at America today, with Donald Trump just elected President and the insane progressive’s out rioting, shooting, beating, and all the other vulgarities going on right now, I can’t state how happy I am that this document, the living, breathing, idea OF this multi-individuel/party inclusive road map for all of us, in this time now, and for those in the future, is NOT up for interpretation as to its original meaning or design. That it is so hard to attempt to change anything about it. That it was made so that person would be represented in it, but not made so that God could be removed and still have it function.

    I don’t believe in Gay marriage. Period. It’s against the laws of God, and nature. No matter what side of the issue you fall on. There is not one single fact that a person is born that way. I am no Christian. I’m not out preaching. I think that Civil Unions should have been the established way a gay couple could, as they saw fit, and if they were comfortable with it, become joined together in the eyes of the Govt. and that, they should have been given the same benefits as Married people. THAT is how the Constitution works. It’s NOT setup to be re-interpreted to fit a specific, minority set of people for THEIR happiness, which in turn impinges on the happiness of those who feel it is a violation of their beliefs. I.E., forcing a couple who believes it is a sin and that having anything to do with it, i.e. catering their “celebration”, would, in fact, CAUSE them to sin. I don’t care if you “don’t like it”. That’s not anywhere in the Constitution. Sorry. SCOTUS got it badly wrong. I

    If the attorney’s had used their heads in the least, it would have been easy to save Marriage for those with a belief in God, all the while giving those who believe it is ok to be gay, Civil Unions. Then BOTH SIDES would have been happy, both sides would have benefited, and Sue and Billy’s Bakery would not have come under malicious attack, destroying ALL of their happiness by lawsuit, and putting them totally and completely out of business. They would have most likely not had as big an issue with catering their Union, but, if they did, the gay couple could have went to anyone of the other TWENTY-FIVE Bakeries that offered to do it for them. Again, all happy.

    Ted Cruz, which I didn’t see in your article, (although I do admit to only skimming over it 3-4 times), is a Constitutional Attorney. Not only that, he’s a damn good one. Brilliant, I believe he’s been called, even by members of the Supreme Court. He IS a Constitutional Conservative. He Holds conservative beliefs, on ALL things, not this progressive right thoughtline that one can be a fiscally conservative, socially liberal, “Conservative”, BS. Sorry, it doesn’t work like that. That is what they call a Blue Collar Democrat. Nothing wrong with them, I used to like several of them, when they still existed. Now only a handful do. Such as Joe Manchin, Evan Bayh, and Joe Lieberman, before he retired. Hell, JFK, today, would be considered a “Far Right Extremist”. I seriously think he would be lol.

    Anyway, I’ve been saying that Ted Cruz would make a great Supreme Court pick to replace Antonin Scalia since Cruz dropped out of the Presidential race. He is a Constitutional conservative, if ever there was going to be a definition of the word. That argument about the Iranian Nuke deal is ridiculous. That deal was criminal to begin with. Paying ransom to a terror regime has no place in this discussion. I hope they do select Cruz. He’s brilliant. He’s honest, Trump’s lie put aside now, he knows the law, and he would replace Justice Scalia nicely.

    I am no brilliant scholar. I’m no scholar. I didn’t graduate from college. Hell, I didn’t graduate from High School, save a GED, if people really want to call that “graduating”. But that’s the brilliance of our founding fathers. They spent the time burning the best brain power in existence at that time to make the most beautiful, incredible, because no man is perfect, and lasting document, that still holds together an entire Country of people, from every walk of life imaginable, to make what could very well be called a divinely inspired, collective idea, and made it simple enough so that a common, ordinary man, such as myself, could understand the thing. If that’s not some kind of higher power guided undertaking, that ended up forming, at least in this writers opinion, as close to perfect as you can get, Republic, I don’t know what is.

    Trying to break down the simple and turn it into the complicated, is an incredibly stupid idea. In fact, it could be construed as very close to evil, as it would bring crashing down a document that has done more than any other in the history of mankind, to bind and hold a Country together, while attempting, as best it can, to be equal and accounting to every single individual who resides, legally, under its protective cover.

    just one man’s long ass opinion, anyway.

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