The Fallen Federalists
Ted Cruz and Josh Hawley have fallen in both word and deed from the lofty heights of their core beliefs.
Welcome to the Self-Evident newsletter. As I mentioned in my recent podcast episode, I’m trying to chip away one by one at the different issues I feel need to be addressed in the wake of January 6th.
In that episode, I discussed the presence of radicalized Latter-day Saints at the Capitol insurrection and how the traditions of Latter-day Saints have been twisted by a small but visible few during the Trump era.
In this newsletter, I move on to discuss another important tradition not only getting twisted but gutted by those who claim to stand for it: federalism.
Both Ted Cruz and Josh Hawley have impressive contributor profiles on The Federalist Society website. Each is considered among the top constitutional lawyers in our country and, combined, have more knowledge of constitutional law than an upstart constitutionalist like myself should be able to shake a fist at.
The profiles tell us that Ted Cruz is a graduate of Princeton and Harvard, clerked for Supreme Court Justice William Renquist, and has argued nine cases before the Supreme Court. They tell us that Josh Hawley is a graduate of Stanford and Yale, rose to prominence as a lead attorney in the Hobby Lobby case, and served impressively as Missouri Attorney General.
Each of these men’s legacies should suggest that someone like me, an undergraduate political theorist and constitutional scholar, should be looking to them as exemplars and leaders. Instead, they’ve become case studies of what Trumpism has done to the conservative movement and serve as grave warnings of just how far men of principle can fall in the rat race for power and influence.
Defenders of State Sovereignty
Specific to their credentials as federalists, both have made the notion of state sovereignty a hallmark of their political philosophy over the course of their careers, both as litigators and as Senators.
Ted Cruz has consistently placed his views of state sovereignty at the forefront of his fight against the Presidency’s treaty power, arguing the Presidency does not have the authority to subvert state sovereignty in the name of international treaties.
In fact, Ted Cruz wrote his undergrad thesis on the ninth and tenth amendments, laying as his foundational belief and aspiration that the federal government cannot and should not usurp for itself powers reserved for the states.
Ted Cruz being a consummate federalist is the specific reason I felt comfortable voting for him in the 2016 primary, notwithstanding my concerns with his demeanor and political brinkmanship as a Senator.
Josh Hawley, as well, has been a stalwart defender of state sovereignty. As Missouri Attorney General, he was consistent in defense of “the sovereign rights of the States as landowners and stewards of their natural resources,” a sage-brush rebel well-received by a Utahn like me. Josh Hawley rose to prominence opposing the Affordable Care Act, largely on the basis that it subverted state sovereignty through the gross overreach of the Commerce Clause and Taxing Power by the federal government.
It’s clear that each of these men has deeply rooted and salient beliefs about our constitutional republic's federal order, that we are a union of sovereign states bound together by a federal government whose authority is limited very specifically by the designs of the US Constitution. The careers of each seem almost predicated upon the notion that the federal government has broken free of these bounds and must be reeled back to its constitutional moorings.
This is why their fall from grace and from the values they’ve long espoused is so troubling.
Rising Stars of Trumpism
Over the last four years, both of these avowed federalists chose to ally themselves with Donald Trump and have become the highest rising stars of Trumpism. Both have obvious ambitions to make a run for the White House and hope to garner the loyalty of Trump’s biggest fans in those efforts by standing side-by-side with Donald Trump through thick and thin.
I have no doubt that these men, clearly originating from a principled conservative position, began this journey into the depths of Trumpism with every intention of using the power and influence they hoped to attain for the furthering of their core beliefs. I wouldn’t doubt they still believe themselves to be on the path to doing so.
But somewhere along the way, they deviated from their principled path. At some point, the power and influence became the goals in and of themselves. By some circumstance of self-deceit or cynical rationalization, no shibboleth or sacrosanct notion of principles or values could compete with the frenzied high of Trumpism.
Do the Courts Choose the President?
Each of their paths ultimately led to the fateful day of January 6th, 2021. They had each spent two months pillorying the results of the 2020 election, giving oxygen to a toxic assault on the credibility of America’s electoral system. As each shoe fell, they had each been first and foremost among those who continued to breathe false hope in the absurd notion that an election could be overturned through force of will.
First, they simply said that the Trump campaign deserved its day in court. After all, seeking litigatory redress for election improprieties isn’t an assault on the system. Such litigation is what shores up the system’s credibility, right?
But the lawsuits were empty in their claims and were audacious in the actions they sought from the courts. Failing to offer credible evidence of widespread fraud in a single court case, the Trump campaign lawyers nevertheless requested that judges silence the voices of millions of Americans who had legally cast a vote. One by one, the judges (including Trump appointees) shot down the claims as absurd and the requested remedies as preposterous.
At this point, did Cruz and Hawley, the seasoned lawyers and well-informed proceduralists, finally let their supporters down easy? Did they do the responsible thing, like countless federalists and constitutionalists over the course of American history, and uphold the integrity of a free and fair election (demonstrated as such in the court of law) and point to the preeminent importance of a peaceful and orderly transition of power?
Quite the opposite. When Texas Attorney General Ken Paxton filed a clearly unconstitutional and anti-federalist lawsuit against Pennsylvania, Cruz and Hawley hopped on board. Ted Cruz even offered to argue the case before the Supreme Court. This, despite both of them knowing the case itself was a veritable assault on the notion of state sovereignty.
The idea that a state can sue another one over its internal process of election and request the Supreme Court to nullify its result and cancel its slate of electors is one that attacks the very fabric of our union.
Imagine, for a moment, a state of affairs where every presidential election is followed by a slew of court cases filed by state Attorneys General seeking the Supreme Court to weigh-in on the internal election process of multiple states (if not every state). The Supreme Court would become the supreme arbiter of election law and would ultimately be a king-maker who could decide who occupies the White House.
Such a state of affairs would place the states in thrall to the Supreme Court. A state’s ability to have authority over its own elections is, perhaps, the greatest aspect of state sovereignty in our constitutional system. It should go without saying that questions of impropriety or incorrect electoral procedure in a state should be handled internally through a state’s own judicial system.
But each contested state had spoken, and their courts had spoken. The claims of fraud from Trump’s enablers (including Hawley and Cruz) had had their day in multiple state courts and were shot down, one by one. Yet, Cruz and Hawley gave credence to the notion that the Supreme Court could subvert the determinations of the states.
How else can an attempt to go over the heads of state judicial systems and appeal directly to the Supreme Court to overturn their own determinations on their own state election laws be construed other than as a clear assault at the heart of state sovereignty?
Were this the limit of Hawley and Cruz’s affront to the principles they attest to hold, it would be enough to declare them as fallen from the lofty heights of their values and beliefs, but, to paraphrase my favorite gun-toting dentist, they had not yet begun to defile themselves.
Does Congress Select the President?
The people had voted. The states had certified the integrity of the vote. The state courts had affirmed the integrity of the vote. The Supreme Court had denied the right of one state to challenge another states’ own determination of its vote's integrity. The electors had been chosen. The Electoral College had cast its votes.
The process had proceeded with the weight of constitutional gravity, casting aside all aspersions in its unavoidable march towards affirming the decisions of the states as to who should be the President of the United States. All that remained was the certification of electors by a joint session of Congress.
The certification of electors is essentially a clerical function of Congress. The mundane task is best explained by Mike Lee’s excellent floor speech on January 6th:
Note that Mike Lee is not free from the stain of Trumpism. He too has dabbled in the demagoguery that has animated this political era. I even wrote an open letter to him back in October, objecting to his comparison between Donald Trump and a beloved figure from Latter-day Saint scripture.
But despite all of that, I’m proud to say that Mike Lee, who I voted for in the past because I know him to be a strong federalist, ultimately held true to that core conviction. He’s a constitutionalist and a federalist who knows precisely what the law allows for and what it doesn’t allow for. At the end of the day, he held firm to what he knew was right. The same cannot be said of Ted Cruz and Josh Hawley.
They have the same background as Mike Lee. They hold the same beliefs as Mike Lee. Their education parallels that of Mike Lee. They learned at the feet of the same giants of originalist and federalist thought as Mike Lee. Their career paths mirror that of Mike Lee. As politicians, they have stood for the same things as Mike Lee.
And, crucially, they know what Mike Lee knows, and they know that his speech about the certification of electors hits the hammer right on the nail when it comes to what the Constitution says is their role and what their oaths of office demand.
And yet, even after being chased out of their chambers by a mob intent to occupy the Capitol and commit violence against elected members of Congress, they still chose to put an exclamation mark on their fall from principle. They completed their narrative of fraud by giving credence to the fraudulent, unconstitutional, and anti-federalist notion that by challenging the certification of electors, they could take upon themselves the power to overturn an election’s result.
The States Select the President
The idea that Congress can overturn the election by challenging the certification of electors, once again, assaults the core sinew of our union. It’s constitutionalism 101 to understand that the states select the President. Not the courts, not Congress, not even, ultimately, directly by the people. The states select the President.
And yet, Hawley and Cruz, joined by their accomplices, engaged in an act that, if it had any chance of success, would have subverted the power of the states to choose the President and placed it in the hands of Congress.
Consider again the state of affairs that would have resulted. Every presidential election would become followed by posturing and maneuvering in Congress as coalitions are assembled to challenge and cancel slates of electors.
States would become helpless to assert their voices in the determination of presidential leadership as Congress became the arbiters of whose voices should and shouldn’t be counted. The Presidential election, the Electoral College, indeed the very notion of state sovereignty itself would become archaic and empty symbols of a fallen system of political representation.
Given the weight of these facts, we can come to only two possible conclusions regarding Ted Cruz and Josh Hawley. Either these men have fully and completely surrendered their entire foundation of philosophical and intellectual beliefs, or their cynicism and demagoguery have sunk so low that they’re willing to engage in rhetoric and action they know go clearly against their foundational philosophical and intellectual beliefs because they knew their efforts would not go anywhere in Congress but would ingratiate themselves with a constituency that demanded no stone be left unturned in fealty to Donald J. Trump.
Either of these scenarios is damning and disqualifying. Both of them suggest men who now move to the rhythms and pulses of a mob instead of standing securely in a position of principle. These men stand naked in the sun of constitutional and federalist precepts and can be seen as nothing else other than what they have become: fallen federalists.
Thaddeus R. Winker weighs in on the same topic of Cruz and Hawley.
I call out Cruz, Hawley, and others before their final descent from principle.
Scott Howard’s excellent essay on the principled art of nuance.
In answer to the trolls, I laid out how I consistently addressed unrest, discontent, and violence over the course of this last year.
Scott Howard calls for the immediate impeachment and removal of Donald Trump.
I dive into Latter-day Saint scripture, culture, and history to lay out the stark difference between King-men and Freemen.
I re-published the essay on impeachment I wrote leading up to the last impeachment.
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Stay Free My Friends,