Of the entire GOP presidential field, I think the candidate with the best or most substantive grasp of the constitutional defects of the administrative state—the term for our unaccountable “fourth branch” of government that increasingly governs us without our consent—is Ted Cruz. (If Tom Cotton were running for president, he’d get the clear nod on this point, but perhaps some day. . .)
At the very least, Cruz knows enough about the separation of powers to make the bold suggestion that some states have a legal basis to ignore or resist the Supreme Court’s Obergefell decision legalizing gay marriage. As Politico reported last week:
“Those who are not parties to the suit are not bound by it,” the Texas Republican told NPR News’ Steve Inskeep in an interview published on Monday. Since only suits against the states of Ohio, Tennessee, Michigan and Kentucky were specifically considered in the Supreme Court’s Obergefell v. Hodges decision, which was handed down last Friday, Cruz — a former Supreme Court clerk — believes that other states with gay marriage bans need not comply, absent a judicial order.
Politico goes on to say that “Cruz’s statement may be technically true,” which is another way of saying that Cruz is right, isn’t it? Well, not quite: the last four words of the previous paragraph—“absent a judicial order”’—are crucial. It is a mere formality for someone to go into federal district court and ask for a writ to overturn a state’s laws restricting marriage to one man and one woman, and lower court judges will have to apply the holding of Obergefell.
But that isn’t the end of the story. Cruz is on to something larger here. He’s trying to channel Lincoln’s attempt to confine the damage of the Dred Scott case in his first inaugural address:
I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all l cases, by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.
Clearly anyone seeking a same-sex marriage license in a state who was not party to the Obergefell suit falls under what Lincoln would call a “parallel case.” But what about someone who runs to federal court or a state marriage license bureau, and holds up Obergefell’s doctrine of “dignity” on behalf of, say, polygamy? Must the court or marriage license bureau shrug their shoulders and say, “Well—I guess so”?
When Lincoln arrived in the White House in 1861, he found two executive branch decisions to which he objected. A free black man in Boston had applied to the State Department for a passport to travel to France, which the State Department had denied on the ground that the Supreme Court, in Dred Scott, had declared that blacks could not be citizens because blacks “had no rights which the white man was bound to respect.” And in Philadelphia, a free black man had applied to the Patent Office for an invention, and been denied on the same ground. Lincoln ordered both decisions reversed.
I often tell this story to my students in classes on the Constitution, with the question appended: “Was Lincoln defying the Supreme Court? Did he act unconstitutionally?” It is amazing—and depressing—that the overwhelming majority of my students get the answer wrong. Such is an example of how deep the idea of judicial supremacy—“the Constitution is what the Supreme Court says it is,” as the Court self-congratulated in Cooper v. Aaron—has crept into the public mind today.
Look again at Lincoln’s careful language in that passage above. He is saying that the reasoning of Dred Scott must be respected as to the parties of that particular case and in parallel cases (i.e., a slave owner who brings his slave into a free state, as Dred Scott’s owner had done). But in his decision to reverse the executive branch decisions supposedly based on Dred Scott in circumstances that were not parallel—both were free blacks in free states, with no one asserting ownership claims to them—Lincoln was asserting that the executive branch was not obligated to extend the principle of the Dred Scott case more broadly. The Constitution belongs to all three branches of government, each of which may assert its constitutional prerogatives in its own sphere—pending a legal challenge in the courts that concludes otherwise.
Good for Cruz for sticking up for constitutional rectitude, though as I say I think he’s stretching it a bit here. But his general point is solid, because you can be sure that there will be people asking to extend Justice Kennedy’s reasoning about “dignity” on behalf of all kinds of “rights” beyond marriage, and governors and state legislatures will be on solid ground to resist.
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