The Bell Foundry

Rediscovering and recovering lost and endangered American liberties by studying our Founders' ideas, contemporaries, and etymology – because our united States "…are, and of Right ought to be Free and Independent States…"

Ted Cruz: We Need a New Amendment


Earlier this month, Texas Senator Ted Cruz (R) responded to the Federal court system’s judicial overreaching nullification of marriage laws in 5 states by preparing a proposal for a new constitutional amendment.  A press release from Senator Cruz’s website provides his reasoning for introducing the amendment:

“Marriage is a question for the States.  That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws. “

Cruz has correctly observed constitutional abuse by the Federal courts – the judicial branch of the Federal Government has indeed behaved unconstitutionally – but there is more to this issue than is immediately obvious.  Before addressing the rulings, however, its important to take note of some foundational items:

  • Section I of the 14th Amendment of the U.S. Constitution is often used as the authority by which Federal courts dictate their will over the states, applying the Court’s interpretation of the Bill of Rights to the states using what is known as the ‘Incorporation Doctrine.’  Section I of the 14th, however, was intended to protect free blacks from being jailed, killed or having their property stolen, but not to force the Bill of Rights onto the states.  The paragraph of interest in Section I reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  Read more about interpreting the 14th Amendment correctly here.  This popular ‘Incorporation Doctrine’ interpretation of the 14th Amendment is also in direct violation of the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The 10th Amendment clearly states the original intent of the Constitution: that the Federal government (including the Federal court system) should have power to do only what the Constitution authorizes it.
  • The Judicial branch of the Federal Government is not the ultimate authority in Constitutional interpretation.  The courts may necessarily attempt to interpret constitutional law as best they can, but should not be the sole and final interpreters.  Otherwise, as Thomas Jefferson observed in a letter to Spencer Roan in 1819, the Constitution would be “…a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”  He expounds further:  “My construction of the constitution… is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action…”
  • The states are not required to submit unquestioningly to unconstitutional law and/or court decisions.  Jefferson further believed that if and when the Federal Government were to “assume undelegated powers,” the state governance should resist said powers:  “…whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.. each State… is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself…” (Kentucky Resolutions, 1798)

So, on what grounds are the Federal courts currently nullifing state marriage laws (additional state marriage bans have been struck down since Cruz’s proposal)?  In the case of Arizona, “…the 9th U.S. Circuit Court of Appeals, which has jurisdiction over Arizona, found gay marriage bans in Idaho and Nevada were unconstitutional,” according to a Reuters article.  The Appeals Court is, of course, an extension of the Federal Government – a ‘lower’ Federal court.

In light of the aforementioned points, a Federal court’s unconstitutionally-interpreted decision is not final.  The U.S. District Court1, another lower court in the Federal system, has incorrectly interpreted the 14th Amendment in the Alaska ruling.  U.S. District Judge Timothy Burgess declared:

“The court finds that Alaska’s ban on same-sex marriage and refusal to recognize same sex marriages lawfully entered in other states is unconstitutional as a deprivation of basic due process and equal protection principles under the Fourteenth Amendment of the U.S. Constitution.”

Even a lower Federal court decision that the Supreme Court refused to review, if unconstitutional, is subject to nullification by a state government, according to Jefferson – and construing the Equal Protection Clause of Section I of the 14th Amendment to expand the traditional definition of marriage is very arguably unconstitutional.

Why would we expect a new constitutional amendment to prevent or even slow the creep of the Federal court system’s power abuse?  Ted Cruz is on the right track; he knows Federal overreach is clearly wrong.  Why, though, should we assume that a brand new amendment would be respected any more than the existing amendments?  The Federal courts consistently conclude their judicial reviews with twisted interpretations of the Constitution; there is no reason not to expect the same behavior regarding a new amendment.   The idea of introducing an amendment that is intended to restrict unconstitutional Federal court decisions shows that Cruz’s intents are good, but a more effective solution would be to simply return to the original intent of the Constitution: to resist any Federal usurpation of powers it has not been delegated.  We the people of the states clearly have the authority to engage in such resistance – and the Tenth Amendment was written to insure that authority would be indefinitely indisputable.


1An interesting side note regarding the U.S. District Court: it was established by Congress, not the Constitution.  The U.S. District Court Wikipedia page states: “In contrast to the Supreme Court, which was established by Article III of the Constitution, the district courts were established by Congress. There is no constitutional requirement that district courts exist at all. Indeed, after the ratification of the Constitution, some opponents of a strong federal judiciary urged that the federal court system be limited to the Supreme Court, which would hear appeals from state courts. This view did not prevail, however, and the first Congress created the district court system that is still in place today.”



One comment on “Ted Cruz: We Need a New Amendment

  1. skinnercitycyclist
    November 2, 2014

    A truly unconvincing argument, but your tears are sweet on my tongue, Ted Cruz. Rock on!

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