Last week Politico.com claimed that, in his response to someone at a private high-dollar fundraiser Senator Ted Cruz fudged his public rhetoric against, raising questions about his sincerity. “In a recording provided to POLITICO, Cruz answers a flat “No” when asked whether fighting gay marriage is a ‘top-three priority’.”
According to Politico’s report, Cruz continued “I would say defending the Constitution is a top priority. And that cuts across the whole spectrum — whether it’s defending [the] First Amendment, defending religious liberty.” In responding to the report, Senator Cruz maintains that he said nothing in that private exchange that contradicts what he has repeatedly made clear in his public pronouncements. As a matter of empirical fact, the Senator’s response appears to be accurate. But the episode illustrates a serious breach in the logic of his purported defense of the Constitution.
As a framework for government, the U.S. Constitution assumes and depends upon premises of right that are not stated in its provisions. And like the issues of slavery and racial segregation, the “same-sex marriage” issue cannot be addressed without regard to those premises. So when Senator Cruz says that dealing with same-sex marriage is not a top priority, but defending the Constitution is, he invites his listeners to assume that the marriage issue in no way threatens the integrity of the Constitution.
But is this assumption justified? Senator Cruz says, in public and private, that defending Constitution is highest among his priorities. So when he says that the issue of same-sex marriage is not even in the top three it must mean that he thinks it poses no existential threat to the Constitution. But the U.S. Constitution is erected on a certain foundation of right. If the issue of same-sex marriage is dealt with in a way that breaks down that foundation. Bereft of its foundation in justice, how can the Constitution maintain its claim to legitimacy? How can the sacrifice of that claim be consistent with preserving it?
However much some people want us to believe his candidacy hearkens back to the prudential understanding of America’s founders, this depreciation of the marriage issue actually abandons it. For as they worked on the U.S. Constitution, its Framers had constantly in view the just principles for whose sake they fought the War for Independence. The man known to his contemporaries as the “Father of the Constitution” confirmed this when he wrote in behalf of its ratification:
The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination …to rest all our political experiments on the capacity of mankind for self-government. (Federalist #39)
Madison’s words remind us that the generation that made the American Revolution did not act for themselves alone, but in behalf of all mankind. They made this succinctly clear in the words and logic of the Declaration of Independence. They set forth the moral principle that governed their actions. Cruz says that fidelity to the Constitution is his first priority. But can one be faithful to the Constitution if he assumes a posture that turns away from the principle of just government its authors sought diligently to respect? That principle, stated unequivocally in the American Declaration of Independence, holds that human governments are instituted to secure the unalienable rights with which their Creator endows all humanity.
Doesn’t the same-sex marriage issue affect the security of God endowed right? That is the question. Cruz says that it violates the Constitution when five justices of the Supreme Court usurp the will of the people with respect to same-sex marriage. But what if the will of a majority of the people usurps the will of the Creator? The Supreme Court’s Brown v. Board decision held racial segregation to be a violation of fundamental right which, as an institution of government, the U.S. Constitution is supposed to secure. Was that decision also usurpation?
Not if logic proves that the popular majority’s will violates God-endowed right. Indeed, in that event, the decision to respect the authority of the Creator is essential in order to preserve the people’s claim to constitute the sovereign power of their own self-government. For as, by title of birth, a monarch claims an hereditary throne, so by title of their God endowed humanity, the people may justly claim the sovereign power to constitute their own self-government. However, if and when they use the sovereign power claimed on God’s authority in defiance of God’s rule, by that derogation they disclaim the basis for their reasonable claim to be entrusted with it. By abusing their right of self-government, they extinguish it.
It was all well and good to say that “same-sex” marriage should be left to the people of the States when, as a matter of fact, they uniformly rejected it. But Senator Cruz asserts this now, in the wake of the Supreme Court’s Obergefell decision. That decision baldly asserts, as a matter of legally binding fundamental right, that marriage must be redefined to include homosexual relations. Cast in this way, the issue can no longer be framed procedurally, as in regard to the powers left to the States respectively, or the people, by the Tenth Amendment. By conclusively framing it as a matter of fundamental right, the Obergefell majority purports to go beyond the provisional challenge to the Constitution posed by the Court’s questionable assertion of jurisdiction over the issue. It challenges the understanding of justice for all, premised upon God-endowed right, that was the basis for the Revolution in which the people of the United States asserted and vindicated their right to ordain and establish a Constitution.
As rooted in the very nature of humanity, the rights “endowed by their Creator” are among the rights human beings inherently retain, whatever the pretensions of human power. The 9th Amendment to the U.S. Constitution plainly states that such rights “retained by the people” cannot be denied or disparaged by any construction of the enumeration of rights contained in the Constitution’s provisions. Yet this denial has now occurred; and in speciously legal actions that are already under way, the disparagement of antecedent right the Constitution forbids is extending its fateful shadow.
At the very least this means that Senator Cruz’s “States’ Rights” pose is seriously OBE. If he is the constitutionalist he purports to be, he ought to be pondering the serious existential threat the Obergefell decision poses to the “strictly republican” form of government the Constitution (Article IV.4) aims to guarantee.
The same sex marriage issue is not just about marriage. It’s not even simply about “religious liberty”. it’s about the vital premise that the unalienable rights endowed by the Creator are not human fabrications, to be casually modified by fiat of human government. Whether it is the will of five Supreme Court Justices; of people of any State, or of the whole people of the United States, human fiat is not to be received as “law” when it violates the standard of right proclaimed to all humanity in “the laws of nature and of Nature’s God.”
This reasoning is fundamental to the integrity of Constitutional government. In dealing with the slavery issue, Lincoln applied it. Stephen Douglas did not. Senator Cruz appears to side with Douglas. Senator Cruz’s bout with Politico raises a serious question about the substance and effectiveness of his defense of the Constitution. This question is an aspect of the pall of unreason that presently hangs befogs the existence of the GOP.
That pall reflects the Party’s subservience to a despotically inclined elitist faction, which rejects the Declaration’s premise of God-endowed right. On account of that subservience, Americans still loyal to their nation’s God-acknowledging principles need urgently to disentangle themselves from the elitist faction’s party sham. They need to see their way to choosing political representatives who will preserve their Constitutional, republican self-government instead of working, intentionally or not, to destroy its very foundations.
The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.