Editor’s note: Below is an excerpt from an interview with Senator Ted Cruz (R-TX) conducted by Professor Robert P. George of Princeton University that aired November 25 on EWTN. The interview series, titled “Candidate Conversations 2016,” will pose a number of questions to presidential candidates on topics of particular concern to Catholic voters. The passage below addresses the question of how public officials should best respond to the Obergefell v. Hodges Supreme Court ruling on so-called same-sex “marriage” decided last summer. Here, Senator Cruz publicly endorses a position advanced by Prof. George and others who argue that unconstitutional decisions of the Supreme Court can be resisted legally by the legislative and executive branches of the federal government as well as state governments not party to the case in question. This view follows the precedent of President Lincoln who famously rejected the Dred Scott slavery decision.
Republican presidential candidates have taken different positions on this question. Some, like Governor Mike Huckabee, call for resistance to the decision, while others, like Governor Chris Christie of New Jersey, vow to uphold Obergefell. Needless to say, whether or not public officials can refuse to enforce unpopular Supreme Court decisions is a highly contentious legal question. The matter was the subject of a recent Crisis column by C-FAM president Austin Ruse. Readers interested in learning more about the legal argument against enforcement of Obergefell should visit the American Principles Project website. APP is also the sponsor of the “Candidate Conversation 2016” interview series. The full interview with Senator Cruz can be viewed below, followed by a transcript of their discussion regarding Obergefell. Crisis intends to provide further analysis of this topic in the days ahead.
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GEORGE: Let me ask you an important question about judicial power. Now, no one denies that sometimes the Supreme Court gets the Constitution wrong.
GEORGE: They’re not infallible. As one of your competitors says: “The Supreme Court, not the Supreme Being.” They were certainly wrong in the Dred Scott decision, which prohibited Congress from banning slavery in the federal territories; they were wrong to overturn worker protection legislation in 1905 in Lochner v. New York, and then they were again tragically wrong in Roe v. Wade in 1973, creating the abortion license. And now this year, they’ve done it again, another tragic mistake in imposing same-sex “marriage” on the entire country in its decision over Obergefell v. Hodges. So my question is going to be about how a president or senator should respond to the Supreme Court when it usurps the authority of the people and their elected representatives by issuing edicts that lack any warrant in the text, or logic, or original understanding of the Constitution and I want to make this question really quite specific.
Some people say that a president must always accept the court’s interpretation of the Constitution no matter how dubious that interpretation is; that we have to treat it as the law of the land, binding not just on the parties to the case but on other officials of government, beginning with the president. Abraham Lincoln though, as you know, vehemently disagreed with that idea of judicial supremacy, saying that to treat unconstitutional court rulings as binding in all cases, no matter what, no matter how usurpative, no matter how anti-constitutional, would be for the American people—and I quote now the Great Emancipator—“to resign their government into the hands of that eminent tribunal.” And Lincoln, of course, acted on this belief. He pursued legislation, and signed into law legislation, that restricted slavery in the federal territories. He issued passports and patents to black citizens, who, under Dred Scott v. Stanford, could not even be citizens. Even freed blacks couldn’t be citizens. Was Lincoln right to defy the court on that, and would you, as president, do that with the Obergefell decision?
CRUZ: Lincoln was absolutely right. I agree with President Lincoln and courts do not make law. That is not what a court does. The court interprets the law, applies the law, but courts don’t make law. And, you know, this is an area of really striking divide in this presidential election. One candidate, Hillary Clinton, agrees with the court and embraces gay “marriage” and is happy that unelected judges had purported to tear down the marriage laws of all fifty states. On the Republican side, they’re quite a few Republicans who, when the gay “marriage” decision came down, they described it as the settled law of the land. It’s final; we must accept it, move on and surrender.
Those are almost word for word Barack Obama’s talking points and I think they are profoundly wrong. I think the decision was fundamentally illegitimate. It was lawless. It was not based on the Constitution. I agree very much with Justice Scalia, who wrote a powerful dissent saying, this decision is a fundamental threat to our democracy. It is five unelected judges declaring themselves the rulers of three hundred and twenty million Americans. And indeed, Justice Scalia, in the penultimate paragraph of his dissent, predicts, harkening back to President Lincoln defying Dred Scott, that state and local officials will refuse to obey this lawless decision. It is remarkable to see a Supreme Court justice saying that would be the consequence of this.
And, you know, we really saw the height of the arrogance of the court just a few weeks ago when Justice Kennedy was at the Harvard Law School and he was asked a question by students about this decision. And in his response, he compared the Supreme Court of the United States to the Nazis and he said, “How many judges do you think defied the Third Reich?” And with a smile he holds up his fingers and says “three.”
And it was a stunning statement, Robby, for a sitting Supreme Court justice … this isn’t me calling them the Nazis. This is Justice Kennedy calling the court on which he serves, calling the opinion that he wrote analogous to the Nazi decrees that we must obey. That is an arrogance, it is an elitism, it is being out of touch with our nation. And I’ll point out…
GEORGE: Just to be clear, surely Justice Kennedy was not embracing Nazism?
CRUZ: He drew the analogy and he’s … the obvious implication was just as you’re forced to obey the Nazis you’re forced to obey us as well.
GEORGE: The law is the law. And if you don’t like the law…
CRUZ: Even if we are tyrannical and oppressive. Now look, he certainly wasn’t embracing all of the horrible things the Nazis did, but to make that analogy, that is essentially saying “we where the Jack Boot and you must obey us.” That is not the Constitution… And, you know, I’ll give you an example on this issue that may surprise you. A number of weeks ago, I went on the Stephen Colbert show.
GEORGE: That does surprise me.
CRUZ: Not a friendly place for conservatives, to put it mildly. And you know, the first few minutes we were yucking it up and having fun and it went alright, and then Colbert, who is very politically liberal, immediately leaps into gay marriage, and my response … I said, “Stephen, I’m a constitutionalist. Under the Constitution, marriage is a question for the states.” And the audience, which leans very heavily left, began booing, and a bunch of newspaper reporters wrote headlines, you know, “Colbert Audience Boos Cruz.” What’s interesting is that they didn’t write what happened afterwards. So Colbert—I’ll give him credit for this—he asked the audience, “Look, please be respectful, he’s my guest and hear him out.” And, in his response, he turned to me and said, “But Ted, marriage is found nowhere in the Constitution.”
GEORGE: Oh, he doesn’t have the theory of the Constitution at all; if it’s not in the Constitution, it’s left to the states and the democratic process.
CRUZ: And you would be pleased to know that I remembered my constitutional law class from Professor George and my response was: “Stephen, exactly. If it’s not in the Constitution, under the 10th Amendment, it’s left to the states.” And then, I turned to the audience and I said, “Look, y’all may agree or disagree on the policy of gay ‘marriage,’ but why would you want every public policy issue of the day decided by five unelected lawyers who are accountable to nobody? If you care about an issue, how about convincing your brothers and sisters, convincing your neighbors, convincing 320 million Americans, win at the ballot box. That’s called democracy.” And the amazing thing, Robby, the crowd burst into applause and the applause was much louder than the boos. Even in a left-leaning Democratic audience, democracy and empowering the people, instead of philosopher kings on the court, resonate, and its powerful because it’s who we are as Americans.
GEORGE: But it shows us just how poorly so many people understand our constitutional system. They don’t understand that the default position really is democracy. Here the people rule and judges can intervene not when they simply disagree with what the people do, but only when there’s an actual warrant for it in the text of the Constitution, or its logic, or structure, or original understanding.
CRUZ: That is absolutely right and, as you know, this has been a passion of mine…
GEORGE: Since you were a student, yes.
CRUZ: Back from when I was a teenager. And indeed, you know, I wrote my senior thesis under your supervision on the 9th and 10th Amendments, on the limitations of the federal government to protect the authority of the people. And, you know, I have to say, I think those principles have never been more under assault than they are right now.