Senators Cruz & Feinstein: An Exchange That Should Not be News

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.

 

No Senator can enter upon his/her duties without the Oath of Office, which begins: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States …”[1]

 

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,[2] 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?[3] 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[4]:

1. Start with the Constitution
2. First, Second and Fourth Amendments contain same language
3. Similar actions by Congress would violate the First and Fourth Amendments
4. 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:

1. “I am not a sixth grader”.[5]
2. She has been on committee for 20 years and a mayor for 9 years.[6]
3. She has had experience with viewing bodies that have been shot.[7]
4. She is not a lawyer.[8]
5. She has for 20 years been “up close and personal” to the Constitution with great respect for it.[9]
6. Senator Feinstein brings up District of Colombia v. Heller, and indicates three Second Amendment exceptions are to be found in Heller,[10] and touches partially upon Senator Cruz’ question.
7. She further expounds upon her experiences and that she is “reasonably well educated”[11], points out that her legislation exempts many weapons and asks for her views to be respected.
8. She takes pains to say her legislation does not “prohibit”, but rather “exempts” a large number of weapons.[12]

 

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.”[13]

 

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

 

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