Ted Cruz Suggests His Own Election To The Senate Should Be Unconstitutional


Speaking at the conservative American Legislative Exchange Council on Thursday, Sen. Ted Cruz (R-TX) embraced the oddly common view among Tea Partiers that American voters should not be allowed to choose their own senators. According to Cruz, “prior to the Seventeenth Amendment,” which provided that voters and not state lawmakers will select U.S. senators, “the state legislatures’ ability and authority to select senators was a powerful check on the federal government coming and intruding on the prerogatives of the state.” “[I]f you have the ability to hire and fire me,” Cruz added, “I’m a lot less likely to break into your house and steal your television. So there’s no doubt that [the Seventeenth Amendment] was a major step toward the explosion of federal power and the undermining of the authority of the states at the local level.”

Most people would be surprised to learn that a sitting senator could steal their television set, regardless of who placed the senator in office. Nevertheless, Cruz’s remarks provide a helpful window into the unusual way many Tea Party thinkers view government. The reason why legislators at all levels should be chosen by the voters is because legislatures exist to serve the interest of the people they represent — and thus lawmakers should be accountable to the very people they serve. Both the states and the federal government are constructs created to enable local and central governments to serve the people.


At the ALEC conference, however, Cruz offers a very different vision of the role of the states. The implication of his view is that state lawmakers are not just servants of the people they represent, but that they are also themselves deserving of representation in Congress equal to the representation provided to the voters themselves. (There are two houses of Congress. Under Cruz’s vision, one represents the people and the other represents state lawmakers.) Indeed, the Senate is the more powerful of the two houses of Congress because it alone has the power to confirm nominees and to ratify treaties. The effect of Cruz’s vision is to establish the Senate as a kind of House of Lords ensuring that a narrow band of elites will wield influence in Washington equal to that of the people themselves.

In fairness to Cruz, the Texas senator does not appear to believe in protecting the interests of a kind of noble gentry for its own sake. Rather, he’s endorsing a similar view to the one Justice Antonin Scalia offered in 2010 — “you can trace the decline of so-called states’ rights throughout the rest of the 20th century [to the Seventeenth Amendment]. So, don’t mess with the Constitution.“ But there is already a perfectly adequate method to prevent the federal government from intruding into areas the Constitution limits to state governments — the Supreme Court itself. If Congress actually does enact a law that intrudes upon what Scalia labels “state’s rights,” then his Court can strike the law down if it actually violates the Constitution.

The logic behind Scalia and Cruz’s opposition to the Seventeenth Amendment is that the states themselves must have representation in Congress to prevent federal laws from being enacted that are counter to the state’s interest but that are also constitutional. But this implies, falsely, that states have an interest separate from their citizens. States aren’t people any more than corporations are. If the Senate is acting counter to the interests of New Yorkers, Oregonians or Mississippians, then the people of New York, Oregon or Mississippi can respond by voting their senators out of office.

There is also another important reason why the United States abandoned the model Scalia and Cruz prefer and provided that senators should be elected by the people. As David Gans explains, the old system of having state lawmakers select senators “led to rampant and blatant corruption, letting corporations and other moneyed interests effectively buy U.S. Senators, and tied state legislatures up in numerous, lengthy deadlocks over whom to send to Washington, leaving those bodies with far less time to devote to the job of enacting the laws their states needed for the welfare of the people.”

This is a high price to pay for making the Senate more like the House of Lords.