Ted Cruz starts with words of action about the Constitution

In the year that the Magna Carta turns 800, Senator Ted Cruz began his bid for the presidency with an appropriately active, as opposed to passive, choice of words that “[i]t is a time to reclaim the Constitution of the United States.”

Conservatives frequently use the phrase “restoring the Constitution.” It is a sad enough commentary that we must restore what Founder and America’s Fourth U.S. Supreme Court Chief Justice John Marshall referred to in Marbury v. Madison as our “fundamental and paramount law.”

Cruz’s virtuoso first act at Liberty University -- sans teleprompter -- amply demonstrated that he is a masterful wordsmith, using the precision of the lawyer that he is, yet with the flow and conviction of a preacher speaking about a higher promise. 

The term “reclaim” used by Ted Cruz in referring to the action needed on the Constitution is not the same as “restore,” the latter suggesting a subtler approach to returning America to the rule of law. His choice of words instead suggests taking back what has been lost or is otherwise wrongfully possessed by someone other than the rightful owner, like good citizens taking back the streets from an unsavory element.

John Marshall’s words to describe the Constitution in Marbury, a case involving a dispute over government power under the Constitution, have been sorely neglected. “Fundamental and paramount” connote what appear to be opposites: The Constitution is law that undergirds yet is above or over the government.

Marshall and other Founders understood the significance of the Magna Carta, which in 1215 was imposed on King John at the point of a sword. As chronicled brilliantly in Inventing Freedom by British Member of the European Union Parliament Daniel Hannan, King John had violated English rights through his abuse of power. The Magna Carta was designed to re-impose the “ancient” rule of law on the king.

Concepts from the Magna Carta, still celebrated today as one of the greatest and most enduring documents of freedom, flow throughout America’s constitutional system. Notions of due process, trial by juries, and even the separation of powers by which those who enforce the laws may not likewise make the laws, for that would enable arbitrary and prejudicial law enforcement, are at the root of the American rule of law.

Lessons on which the Constitution is based were that King John had violated the “ancient law” by which rulers themselves were subject to the rule of law that flowed from the people and their councils. The rule of law over government, as Hannan points out, is what fosters and protects the liberty that makes America exceptional.

The pattern of reclaiming the rule of law over the king repeated itself with the Glorious Revolution of 1688 overthrowing King James, II. The resulting English Bill of Rights in 1689 expressly calls “illegal” the exercise of legislative power by the king, which should sound very familiar to us today.

Next came the American Revolutionary War, which was also about the Parliament’s violations of rights protected by the “ancient law,” which by then was more formally expressed by the Magna Carta and the English Bill of Rights. The Constitution was written to incorporate these lessons into its very structure of checks and balances and federalism so that the people would not need revolution to reclaim the rule of law.

John Marshall’s slightly younger contemporary Joseph Story wrote in his authoritative 1833 Commentaries that the Constitution “is an act of the people, and not the states in their political capacities.  It is an ordinance or establishment of government and not a compact, though originating in consent; and it binds as a fundamental law promulgated by the sovereign authority, and not as a compact or treaty . . . .”

Ted Cruz is a constitutionalist who is familiar with the roots of the American rule of law. He has clearly distinguished his vision from that of President Obama, who has flaunted his lawlessness.

By saying that it is time for people to reclaim their Constitution, instead of saying it is time to restore it, Cruz has also already distinguished himself from the expected large pack of GOP presidential hopefuls. He clearly knows history shows that liberty may be stolen, and he has articulated the optimism that it may be taken back by returning to a rule of law over government.

Mark J. Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society’s Biggest Lawbreaker, which may be downloaded at ReclaimtheConstitition.com.