In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. — Thomas Jefferson
Don’t be embarrassed if you don’t instantly recognize those words from Thomas Jefferson. They’re not etched in marble on his memorial in Washington. While they express a common sentiment of the founding generation — that since men are no “angels,” the Constitution is necessary to control their baser acts — the occasion for Jefferson’s “chains” was anything but common.
The words come from Jefferson’s draft of the Kentucky Resolutions, in which he espoused the doctrine of nullification, by which the states could declare acts of Congress null and void when, in their view, such acts are an abuse of power.
“Where powers are assumed which have not been delegated,” he wrote in his draft, “a nullification of the act is the rightful remedy.” The targets of nullification were the Alien and Sedition Acts, which among other things allowed for the jailing of people critical of the government.
But Jefferson’s draft Kentucky Resolutions and the version ultimately enacted in the state lived on only in infamy, resurrected by secessionists in the pre-Civil War era but otherwise disowned for their potential to break up the union. Jefferson’s “friends and admirers sought to distance themselves and him” from the whole episode, according to scholars. Jefferson ghost-wrote the resolutions for someone else, and did not own up to authorship until late in life — and only when pressed.
Ted Cruz is not a supporter of nullification. But he sure loves the “chains” quote.
“The purpose of the Constitution, as Thomas Jefferson put it, is to serve as chains to bind the mischief of government,” Cruz declared as he announced his candidacy for president at Liberty University in Lynchburg, Va., last week. He uttered the same words a year ago in another speech at Liberty. He’s invoked them in interviews — as he did in September 2012 in an interview with the Christian Broadcasting Network and again in 2013, in his Constitution Day greeting.
He does give the origin in his rhetoric. But the “chains” rattle with the right crowd. The quote is invoked most often by tea party-oriented backers of states’ rights. (For example, here, here and here.) And his choice of the quote underscores the fact that Cruz, a Harvard Law School graduate and former Supreme Court clerk for the late Chief Justice William H. Rehnquist, may well be the most ardent advocate of states’ rights to run for president in decades.
He has been critical of the 17th Amendment — the 1913 shift in the method of electing U.S. senators, from having them chosen by state legislatures to election by popular vote. “If you have the ability to hire and fire me,” he said in 2013 of the amendment, “I’m a lot less likely to break into your house and steal your television. So there’s no doubt that was a major step toward the explosion of federal power and the undermining of the authority of the states at the local level.”
The amendment “was one of the structural changes pushed by progressives that pushed power to Washington and weakened the States,” he tweeted in 2012.
In a Harvard Law Review forum last year, he urged the Supreme Court to limit the treaty power set out in the Constitution to protect the states from being bound by laws growing out of international agreements. “Because treaties are the supreme law of the land,” he wrote, “they could potentially become a vehicle for the federal government either to give away power to international actors or to accumulate power otherwise reserved for the states or individuals. Either possibility can be prevented if sufficient limits are placed on the federal government’s authority to make and implement treaties.”
Most significantly, Cruz, while not a nullifier, is the father of an alternative he called a “Shield of Federalism” that has caught on in red-state legislatures across the country. It would allow states to form compacts among themselves to get out from under federal laws, specifically the Affordable Care Act and regulatory laws. Cruz came up with the idea in 2010 while working for the Texas Public Policy Foundation’s Center for 10th Amendment Studies.
While it sounds complicated, it’s fairly simple. States, and the District of Columbia, have negotiated among themselves some 300 agreements, or compacts, throughout history to engage in cooperative enterprises. In Washington, the best known is the interstate compact among Virginia, Maryland and the District establishing the Washington Metropolitan Transit Authority (WMATA). None of these compacts have attempted to get around or supplant acts of Congress.
But Cruz and his co-author, Mario Loyola, in an article for the foundation, determined that two or more states could band together to form compacts that effectively let them opt out of federal law, specifically the Affordable Care Act. “With Congressional consent, federalized interstate compacts could shield entire areas of state regulation from the power of the federal government” — specifically, the Affordable Care Act. Cruz and Loyola cited Article I, Section 10, Clause 2 of the Constitution, which says: “No state shall, without the Consent of Congress … enter into any agreement or Compact with another state.”
Cruz and his co-author speculated that Congress could express its approval “implicitly” or “by acquiescence.” And they said the compacts overriding federal law would probably require the signature of the president, but not necessarily. “A credible argument could be made that it could be done without the need for presentment to the President, ” they wrote.
The compacts, they wrote, “would contain a ‘notwithstanding’ clause providing that the operation of any federal law contrary to the provisions of the compact is suspended as to the signatory States.”
Cruz advanced his argument to the conservative American Legislative Executive Council, which liked it so much it prepared model legislation. Since then, according to the National Conference of State Legislatures, about nine states have adopted interstate “health-care” compacts that would theoretically exempt them from the Affordable Care Act. Congress has not considered these, however, and no state has yet seriously pressed it to do so.
Opponents and some scholars criticized these efforts as futile, insofar as they require a presidential signature.
“The question,” wrote Elizabeth Weeks Leonard in the University of Richmond Law Review, “is whether the Compact sponsors fail to appreciate the futility of their actions, or whether they envision the compact as yet one more way to signal objection” to the Affordable Care Act.
Like the Kentucky Resolutions, and the tamer Virginia Resolutions authored by James Madison, the compact “shields of federalism” may go no further than the states that wield them and become an untested relic.
“The Constitution is the supreme law of the land — not the Supreme Court, the federal government, or an individual state legislature, for that matter,” Heritage reminded conservatives in 2012, warning against what it called the “nullification temptation. … The Constitution itself lays out the best path to change unconstitutional laws: object to the law and change opinions (and political leadership) in the political process, defund and slow its implementation, change or repeal the law, challenge it in the courts, and, if necessary, amend the Constitution.”