With deeply religious South Carolina next up in the GOP presidential primary race, there has been a lot of back-and-forth over the past few days on the big hot-button social issues. In particular, a short Politico piece from last Thursday about a Ted Cruz line of attack against both Marco Rubio and Donald Trump on the marriage issue has generated a lot of pushback from the latter two camps.
I do not particularly care to talk about Trump here, since anyone who is a sentient human being and not a Twitter robot can see right through the bloviating non-conservative businessman’s self-claimed conservative stance on the issue of one-man/one-woman marriage. I do, however, wish to weigh in on Rubio, since he has taken to calling Cruz a “liar” for this. In short: the Politico headline—”Cruz: Trump and Rubio are with Obama on gay marriage”—is (predictably) not at all reflective of what Cruz actually said, and if you read what he actually said about the other two men’s “talking points” being similar in key respects to those of Obama and the Left more broadly, then Cruz is in solid territory.
The facts are pretty straightforward. Cruz’s stance is that, as President, he would work to pass a modified version of the older Federal Marriage Amendment (“FMA”) idea. I say “modified” because Cruz’s amendment is a strictly federalist provision that would simply overturn the constitutional travesty that was last term’s Obergefell v. Hodges Supreme Court decision and return to the status quo ante of each sovereign State determining its own marriage policy for itself. The more traditional FMA would be the one that Republicans ran on nationally as recently as Mitt Romney in 2012, which would have constitutionalized the definition of marriage nationally as the union of one man and one woman. Before dropping out this cycle, Rick Santorum—who, as the Big-Government conservative he is, remains a supporter of the older FMA—used this difference to attack Cruz as being insufficiently strong on the issue. I suppose there is still an argument for that stance, but in a post-U.S. v. Windsor (the 2013 Supreme Court case striking down the section of the federal Defense of Marriage Act that defined marriage, for purposes of federal law, as the union of one man and one woman) and, especially, in a post-Obergefell world, I think Cruz’s stance is much preferable. It was definitely good enough for the National Organization for Marriage, in any event, when they decided to endorse Cruz’s presidential bid.
By contrast, Rubio has repeatedly eschewed the strategy of pursuing a constitutional amendment to overturn Obergefell, instead relying on the talking point that he would appoint sound originalist jurists to the Supreme Court who would eventually overturn it in a future opinion. He reiterated that talking point this weekend on the Sunday talk shows. While I have little doubt of Rubio’s personal belief in the underlying policy merits of the traditional definition of marriage, his is a more mild procedural stance that should be entirely fair game to question in the context of a presidential race. Not only is this fair game, moreover, but I would argue Rubio’s stance is historically out of line with mainstream American thinking on using the Constitution’s Article V amendment process to overturn errant Supreme Court rulings. The 1795 ratification of the Eleventh Amendment, which was initiated in Congress as a direct response to what Congress viewed as the grievously wrongly decided Chisholm v. Georgia Supreme Court decision of 1793, is a testament to this enduring line of thought. Based on his articulated logic today that the constitutional amendment process should not be used to overturn judicial decisions, Rubio would not have supported the adoption of the Eleventh Amendment.
But that is actually only the surface level distinction here between the two men. There is a deeper disagreement here about the role of the federal judiciary in our lives. Rubio’s initial statement following Obergefell was, in relevant part, “While I disagree with this decision, we live in a republic and must abide by the law.” (He has since tried to walk this back a bit, to be fair, it should be noted.) This statement, combined with his judicial nominations-only stance on how to grapple with Obergefell, may reasonably be interpreted as indicating some degree of belief in the fallacious doctrine of judicial supremacy—the idea that the federal judiciary’s pronouncements on constitutional questions strictly bind the other two branches, such that a President and a Congress must faithfully execute their duties in accordance with the constitutional prognostications of what Alexander Hamilton nonetheless once referred to as the “least dangerous” branch.
Perhaps the most famous opponent of judicial supremacy in our nation’s history was Abraham Lincoln, who as President directly defied the abominable and inhuman monstrosity that was Chief Justice Taney’s ruling in 1857’s Dred Scott v. Sandford. As the Great Emancipator explained 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 parallel 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 overruled 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.
This view associated with Lincoln is generally referred to as “departmentalism,” and broadly stands for the notion that each of the three branches has its own solemn duty to interpret and apply the Constitution for itself. The notion of any single Supreme Court decision being a binding “law of the land” diktat would have been anathema to Lincoln.
To bring it back to the present, in a recent interview he conducted with his former professor and thesis adviser from his college days at Princeton, Dr. Robert P. George, Ted Cruz stood with Lincoln. You can watch it for yourself right here, where the relevant portion begins at the 13:52 mark.
The facts thus remain that, while both Cruz and Rubio are no doubt supporters of the conservative one-man/one-woman marriage policy, they have taken very different procedural approaches to dealing with the question in the aftermath of Obergefell. Furthermore, they represent different legal philosophies, with Rubio being much closer to a mainstream pro-judicial supremacy position and Cruz, as a departmentalist, standing with Lincoln. Unsurprisingly, Rubio’s stance is the default rule for the post-Warren Court legal and academic Left—of which Barack Obama was once a part when he taught constitutional law at my own law school.
In his response to Dr. George’s interview question about standing with Lincoln, moreover, Cruz actually cited Justice Antonin Scalia’s dissenting opinion in Obergefell. While I do not intend to address in this post the legacy of the most intellectually well-grounded conservative jurist to arguably ever serve on the Supreme Court, it is worth mentioning that Dr. George himself, in his Facebook tribute post about Scalia, noted that Scalia himself was a departmentalist who stood with Lincoln due to a belief that judicial supremacy “is not compatible with the republican principles of the Constitution itself.”
With Justice Scalia’s tragic and untimely passing thrusting the issue of judicial nominations very much into the middle of an already-hectic presidential election, the candidates’ legal philosophies and approaches to foundational questions about constitutional structure matter. Here is hoping the voters are paying attention.