On March 14, 2013 one United States Senator asked another how legislation she was sponsoring comported with the United States Constitution. Senator Ted Cruz’ (R-TX) question to Senator Diane Feinstein (D-CA) generated a great deal of media coverage. Members of Congress discussing how a proposed law fits with the Constitution should not be news but should be common in the regular course of congressional business.
In supporting and defending the Constitution, every member of Congress should be prepared to defend the constitutionality of a sponsored law. Senator Cruz prefaced his question with this reasonable statement: “…all of us should begin as our foundational document with the Constitution.”
That Senator Feinstein felt patronized and characterized Senator Cruz as “arrogant” says more about the arrogance of long time legislators than about Senator Cruz. An analysis of the exchange demonstrates the reasonable nature of the question and the arrogance of the response.
“Term of Art”
A word or phrase used within any document has the same meaning throughout the document. A “widget” in a computer manual will refer to the same part throughout the manual. A phrase in the Constitution will have the same meaning throughout the document. Senator Cruz pointed out that “right of the people” appears in the First, Second, and Fourth Amendments, and within the Constitution is a “term of art”.
The drafters of the Bill of Rights selected that phrase to be used in the three amendments. As a “term of art” it has the same meaning in all three places. Senator Cruz pointed this out as his question to Senator Feinstein progressed. Pointing this out would not be a matter of arrogance, but rather setting the background for further discussion.
If Senator Feinstein had a disagreement with Senator Cruz’ “term of art” premise, she surely could have expressed it. She, to her credit, did not, as the premise has an evident clarity, and set the table for Senator Cruz’ question.
Cruz’ Question: Is “Right of the People” Constitutionally Different Among the Amendments?
With the premise, that “right of the people” has the same meaning within the amendments, Senator Cruz posed two hypothetical questions. In the context of the First Amendment: Could Congress constitutionally acknowledge free speech, except for certain books? In the context of the Fourth Amendment: Could Congress constitutionally acknowledge the right to be free from search and seizure, except for certain individuals?
Cruz analogized the structure of the proposed weapons ban in the same way. Congress would acknowledge the “right of the people” to keep and bear arms, except for arms Congress decided were not covered by the Second Amendment. If the other actions were unconstitutional under the First and Fourth Amendments, how could the proposed law be constitutional under the Second Amendment?
The Cruz Question
Senator Cruz laid out the premises and the implied question:
- Start with the Constitution
- First, Second and Fourth Amendments contain same language
- Similar actions by Congress would violate the First and Fourth Amendments
- How could this legislation not violate the Second Amendment?
Possible Reasonable Feinstein Response
Senator Feinstein had available a number of responses. Perhaps she disagreed that starting with the Constitution was the wrong place. Perhaps she believes the language of the Amendments in question places “right of the people” in different places and the analogy was mistaken. She could have responded the proposed law was constitutional and explained why. She chose not to have such a discussion. It appeared being asked about the Constitution affronted her senatorial sensibilities.
First Feinstein Response: “I am not a sixth grader.”
Senator Feinstein asked to make a “couple of points in response”. Her points:
- “I am not a sixth grader”.
- She has been on committee for 20 years and a mayor for 9 years.
- She has had experience with viewing bodies that have been shot.
- She is not a lawyer.
- She has for 20 years been “up close and personal” to the Constitution with great respect for it.
- Senator Feinstein brings up District of Colombia v. Heller, and indicates three Second Amendment exceptions are to be found in Heller, and touches partially upon Senator Cruz’ question.
- She further expounds upon her experiences and that she is “reasonably well educated”, points out that her legislation exempts many weapons and asks for her views to be respected.
- She takes pains to say her legislation does not “prohibit”, but rather “exempts” a large number of weapons.
Cruz Points Out Feinstein Did Not Answer Question & Then She Does
Following Senator Feinstein’s eight points, Senator Cruz noted his question was unanswered. He reposes it: Can Congress in the context of the First Amendment regulate books, and then allow exemptions? Feinstein’s answer: “No”.
Why Was This News?
The exchange between Cruz and Feinstein was covered by the NYTimes, ABCNews, NBCNews and the cable networks and the exchange was described as fiery, and Senator Cruz’ question was described as a “lecture”. The interesting question is why the national coverage?
The type of exchange between Senators Cruz and Feinstein should be a common, in fact daily, happening on Capitol Hill. Members of Congress should regularly inquire as to the constitutional basis for proposed legislation.
The fact that Senator Cruz’s inquiry was news indicates that such questions are rare in Congress. Senator Feinstein’s non-response and litany of her experiences indicates that such questions are unwelcome by longtime members of Congress.
Members of Congress Have Abdicated Their Responsibility to the Constitution
Judge Abner Mikva has criticized Congress for “pass[ing] over the constitutional questions, leaving the hard decisions to the courts”, stressing that “Such behavior by Congress is both an abdication of its role as a constitutional guardian and an abnegation of its duty of responsible lawmaking.”
Senator Cruz’s initial premise to start with the Constitution should be the opening of every congressional hearing. The first question Congress should ask itself and the proponent of a law should be able to answer: “Is there constitutional authority to enact this law?”
Were that a rule of procedure, questions like Senator Cruz’ would not be news and a member like Senator Feinstein would not be offended when asked, and the Senator’s Oath of Office would be meaningful.
The Exchange Between Cruz and Feinstein
 Of note, only the presidential oath is part of the constitutional text, in Art. II. Members of Congress are constitutionally required to take an oath to support the Constitution, but the precise words are not in the Constitution.
 The First Amendment: “the right of the people to peaceably assemble”; the Second Amendment: right of the people to keep and bear arms…” the Fourth Amendment: “right of the people to be secure in their persons…”
 Put another way: Can Congress say people can speak, but ban certain books and still comply with the First Amendment?
 Point four was neither asked by Cruz, nor answered by Feinstein, because Feinstein avoided the constitutional question for as long as she could. She was attempting to obscure the implied question regarding the constitutionality of her legislation from the beginning with a series on irrelevant “points”.
 This is clearly correct, and perhaps relevant. The point would be that 6th graders should have a clear understanding of the Bill of Rights and concepts like “term of art”.
 Apparently because of that long experience there is no need to consider constitutional issues of pending legislation.
 Senator Feinstein’s experience with horrible events is unfortunate and sad; its relationship to considerations of “term of art” and “right of the people” regarding the First and Fourth Amendments appears tenuous.
 This clarifies further her experience, and indicates that some knowledge beyond the 6th grade is needed to answer Senator Cruz’ question.
 The “up close and personal” constitutional experience seems to make up for being neither a 6th grader nor a lawyer.
 Heller overturned elements of a District of Colombia gun control law which severely limited gun rights in the District. It laid the groundwork for McDonald v. Chicago, which applied the 2nd Amendment to the states and resolved the issue of whether the right to keep and bear arms is an individual right.
 Though as this point we know she is neither a sixth grader nor a lawyer.
 It is interesting that Ms. Feinstein chose to make that point. For an “exemption” to exist, there must be an initial “prohibition” in place. If something is not prohibited, there is no reason for an exemption. Senator Feinstein later in the exchange indicates that Congress is in the business of passing laws. She failed to qualify: “constitutional” laws.
 Mikva. How Well Does Congress Support and Defend the Constitution?, 61 N.C.L. REV. 587 (1983).