Sen. Cruz: We Have the Opportunity to Revive the Rule of Law in America

WASHINGTON, D.C. – U.S. Sen. Ted Cruz (R-Texas) today spoke at the 2016 Federalist Society National Lawyers Convention, where the convention theme was “The Jurisprudence and Legacy of Justice Scalia.” Sen. Cruz spoke about Justice Scalia’s legacy and the need to appoint strong, constitutionalist judges to the Supreme Court and throughout the federal judiciary.

“The loss of Justice Scalia helped shape the recent presidential election as a referendum on his ideas: Would Americans choose to be ruled by the Constitution as written, or would they be ruled instead by unelected activist judges with life tenure,” Sen. Cruz said. “…President-elect Trump assured the American people that, if elected, he would nominate constitutionalists in the mold of Justice Scalia. So in a very real respect, Justice Scalia was on the ballot as well. And thanks to the historic victory we saw last week, it gives me immense pleasure to say that the People have spoken and Justice Scalia has won as well.”

Cruz continued: “And that’s fitting because Justice Scalia never lost faith in the American people; he never lost faith in the goodness and the ability of Americans to govern ourselves. We now have an historic opportunity to return to the Constitution. We have an historic opportunity to restore integrity to the federal government.”

Watch Sen. Cruz's full remarks here. The full text as prepared is available below:  

Thank you, Dean, for that very kind introduction.

I’d like to begin by first offering a hearty congratulations to my friend, Senator Jeff Sessions, on his nomination to be the next Attorney General of the United States.  Senator Sessions is a man of extraordinary fortitude and character with an exemplary career in public service.  He’s exactly the kind of person we need leading the Department of Justice. 

It is a great honor for me to speak at this year’s gathering of the Federalist Society to honor the jurisprudence and legacy of Justice Antonin Scalia. Soon after his untimely passing, members of the Senate were invited to submit, into the congressional record, statements commemorating his remarkable career.

Now, I’m sure the Federalist Society crowd here today can see the irony in a request to supplement the congressional record, of all things, with praise for Justice Scalia. Given his sterling sense of humor, I suspect Justice Scalia would have rather enjoyed learning of such a request. After all, we’re talking about a man who waged a 30-year war against legislative history and the idea that the congressional record was something more than the public musings of self-important legislators who like to hear themselves talk.

I can almost see him now, leaning back in his chair, with a mischievous grin on his face, saying: ‘Well, that’s some request.  If they really cared, they’d stop passing unconstitutional laws!’

Irony aside, I complied with the request anyway, and today I’d like to begin by sharing a little of what I submitted into the record.

Antonin Scalia was one of the greatest Supreme Court Justices in the history of our country.  A lion of the law, Justice Scalia spent his tenure on the bench championing federalism, the separation of powers, and our fundamental liberties.

He was a passionate defender of the Constitution—not the Constitution as it has been contorted and revised by generations of activist justices, but the Constitution as it was understood by the people who ratified it and made it the law of the land.

Scalia understood that if the Constitution’s meaning was not grounded in its text, history, and structure, but could instead be revised by judicial fiat, then the People were no longer sovereign.  No longer would the nation be governed by law, which expresses the will of the People; it would be governed by, as Scalia put it, “an unelected committee of nine.”  This, he [wrote], “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

The loss of Justice Scalia helped shape the recent historic presidential election into a referendum of sorts on his ideas: Would Americans choose to be ruled by the Constitution as written, or would they be ruled by unelected activist judges with life tenure?

That was the question put before the American people.  And, I would note, it is a question that “We the People” would not have been able to answer if the Senate had confirmed President Obama’s nominee. 

Soon after Justice Scalia’s passing, Senate Majority Leader Mitch McConnell, Judiciary Committee Chairman Chuck Grassley, and all Republican members of the Judiciary Committee, of which I am a member, made clear that no nominee to replace Justice Scalia would be considered until the next president was inaugurated. 

We declared that we would see to it that the American people had a voice in selecting the next justice.

Well, I’m happy to report: We followed through on that promise. 

Contrary to accusations that the Senate abused its power, the Senate wisely let the American people resolve the question that profoundly divides the political parties:  Who will rule in America—the people and their Constitution or activist judges?  Answering questions like this is precisely what elections are for.

If the Democrats had won and Justice Scalia replaced with a super-legislator, the balance on the Court would have shifted decisively against both the Constitution and popular sovereignty.

The decades of work that the Federalist Society and scores of conservative and libertarian jurists, lawyers, and professors have devoted to resisting the onslaught of living constitutionalism on the Court would have been set back—perhaps for a generation or more.

I shudder to think what a Supreme Court with a decisive liberal majority would have done.

They would surely have rolled back the First Amendment right to free speech by overturning Citizens United—a case, I remind you, that involved an attempt to ban a movie criticizing Hillary Clinton.

They would have narrowly interpreted the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act to allow governments to punish religiously devout business owners who refuse to pay for abortion-inducing drugs or participate in same-sex marriage ceremonies. 

They would have reversed—or at least dramatically curtailed—the Second Amendment right of individuals to keep and bear arms. 

They would have banned the death penalty, and struck down the federal ban on partial-birth abortions.

And they would have wielded the courts as a sword to strike down voter ID laws and to socially reengineer American education, housing, business, and the criminal justice system.

These are just a few examples, but you get the point.

In contrast, President-elect Trump assured the American people that, if elected, he would nominate constitutionalists like Justice Scalia to the Supreme Court bench. 

In this respect, Justice Scalia was on the ballot, too.  And thanks to President-elect Trump’s historic victory, it gives me immense pleasure to say that the People have spoken and Justice Scalia has won as well.

As devastating as his untimely death was, it is fitting that Justice Scalia’s views about constitutional interpretation and the limited role of the judiciary—his greatest legacies—were affirmed by the American people. 

Justice Scalia never lost faith in the American people’s desire to govern themselves, and in this election, they showed that his faith was well founded.

But replacing Justice Scalia with a committed constitutionalist isn’t the end of our fight—it’s just the beginning.  It’s just one part of a larger battle to restore the rule of law in all corners of the federal government.

Under the Obama administration, we’ve witnessed an unprecedented erosion of the rule of law.  Far too often, we saw the government manipulate the law as though it were infinitely malleable. Or worse yet, we saw the government ignore the law or treat it as a mere suggestion.  We even saw the government use the law as a cudgel against disfavored groups. 

Examples abound.  Since the day Obamacare was enacted, for instance, the government has selectively picked which parts of that law it would follow.  

The same goes for the immigration laws and for the drug laws and for the welfare reform laws and on and on.  And, of course, the IRS targeting scandal was an unconscionable abuse of the law.

We must not forget that the law is the voice of the People.  If we ignore it, we ignore them.  If we change it, we supplant them.  If we abuse it, we abuse them. The People are sovereign only so long as the law is sovereign.  And if the government tramples on the law, it tramples on the People as well. 

This is why the rule of law is so important in constitutional republics like our own where “We the People” reign.  Without it, without the rule of law, the government is sovereign—not the People. 

Because of this election, we, here in this room, have an enormous opportunity to help revive and resuscitate the rule of law in America.

We now have the means to repopulate the courts with committed constitutionalists and begin the difficult work of bending our sprawling government—our Leviathan—to the will of the People as expressed in their laws. 

And this means that each of you must follow, not only Justice Scalia’s ideas, but his example as well and get involved. Too often, we reflect on the dazzling heights that Justice Scalia reached in his illustrious career and forget about all the years he spent laboring in the trenches. 

We forget that before he was our beloved Justice—indeed well before he was even a judge at all—he was general counsel of the Office of Telecommunications Policy, Chairman of the Administrative Conference of the United States, and the Assistant Attorney General for the Office of Legal Counsel.

It was in positions like these where he met Leviathan face to face, all while honing his skills for the fights to come.

I’ll continue to do my part in the Senate, but now, it is your turn to do your part—to walk in Justice Scalia’s shoes and to carry on his life’s work of making government the servant of the law and the People, not the other way around. 

This mission is not for the faint-hearted.  The federal government can be overwhelming—almost too massive to comprehend.  The challenges are surely daunting. The established interests are entrenched. 

But we need all hands on deck, and I have every expectation that the ranks of the Federalist Society will rise to the challenge.

Before I close, I’d like to leave you with five guiding principles for the mission ahead, should you choose to accept it. 

First, be honest and trustworthy.  If we are to be good stewards of the law, we must be good stewards of our souls.  The practice of law is a deeply moral undertaking.  To faithfully interpret and apply the law—especially as servants of the People—requires the utmost integrity.  The People, after all, have every right to expect that government officials reach their legal conclusions in good faith.  

If the citizenry begins to believe that the law is being subverted for political or any other illegitimate reasons, they will lose faith in the government, in the rule of law, and in the idea of justice itself.  And when faith in these things is lost, all that is left is cynicism.  This is a breach of trust that cannot be easily repaired, and so we owe it to our fellow citizens and to our cause not to let it happen on our watch.       

Second, always remember: you serve a cause far greater than yourself.  Pride comes before a fall, so be humble.  I know this admonition might seem strange coming from a politician.  We are not generally known for our humility.  But history is littered with examples of worthy causes that failed because of infighting, petty grievances, and selfishness. 

If we are to succeed in taming our Leviathan, we cannot succumb to the same impulses.  We must work together, always putting others and our cause ahead of ourselves.   

Third, the Constitution must be your lodestar. 

Restoring the rule of law must begin with restoring the Constitution.  And to do that, we must be fearless advocates of the proposition—best expressed by Justice Joseph Story—that the Constitution has a “fixed” meaning and is “not dependent upon the passions or parties of particular times, but the same yesterday, today, and forever.” 

No constitution is worth the paper it’s written on, if it can be ignored or revised on a whim by judicial or executive fiat.  Just ask the Soviet Union.  

We must rebuild our legal culture so that both the legal profession and the People re-embrace the principle, implicit in a written constitution, that the law is not something to be shaped—as a potter molds clay.  Rather, it is to be dispassionately applied. 

The judge’s task is to apply the law, not to invent it.   

Fourth, continue to focus on law students, like Justice Scalia did.

As I mentioned in my remarks for the congressional record: 

“Justice Scalia understood that changing the languishing legal culture would take drastic measures, so he wrote his dissents with a specific target in mind: law students.  His aim [was to] delight their senses and engage their brains.  To this end, he liberally employed colorful metaphors, pithy phrases, and biting logic, and he mercilessly (yet playfully) exposed the abundant flaws in the writing and reasoning of other justices.  Pure applesauce.  Jiggery-pokery.  Argle-bargle.  If you squinted hard enough, you could almost convince yourself that G.K. Chesterton had taken a seat on the Supreme Court.”  

This election may save the day for now, but to prevail in the long run, we must capture the hearts and minds of future lawyers, and future generations of Americans as well, or else all will be for naught.  So be creative, be funny, be appealing, and take time out of your schedule to mentor and cultivate young minds.

Finally, in the battles sure to come over the rule of law in this country, there will be bitter disappointments and setbacks.  I’ve been told that yesterday at this conference, Justice Alito gave us very good advice.  When those times come, you should always ask yourself:  What would Scalia do? (Maybe we should even make wristbands?)  After all, Justice Scalia was the epitome of the happy warrior—always hopeful and good natured.  You would do very well to find inspiration in his worthy example. 

Above all, though, you must keep up the fight, and never, ever, give in.  Our nation, our people, and our Constitution are worth every ounce of your devotion.     

Thank you very much for having me.  I’d be glad to answer your questions.