I recently went to Mudd Library to read Ted Cruz ‘92’s senior thesis. As an American of legal voting age, I was eager to contribute to the public vetting process that accompanies all political campaigns: the way we scour candidates’ pasts for every off-the-record comment and college newspaper article, eager for signs of precocity or just to trap them in their own words. But as a junior in the Politics Department studying American constitutionalism, I was also intrigued by what a 21-year-old Cruz had to say about the Ninth and Tenth Amendments of the U.S. Constitution, the focus of his thesis.
As it turns out, he has a lot to say. Clipping the Wings of Angels: The History and Theory behind the Ninth and Tenth Amendments of the United States Constitution is a passionately argued one hundred pages. It draws its namesake from Madison’s observation in “Federalist No. 51” that “if men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” while the Tenth states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Cruz’s argument is that the true meaning of these clauses is “about as far removed from present-day jurisprudence as are angels from demons.” The paper also covers, in sweeping fashion, the foundation of rights and powers, the history of the Constitution, and the formation of and contemporary debate over the Bill of Rights.
Most of the thesis is devoted to this secondary mission. Chapters One through Three — “The Nature of Rights and Powers,” “The Debates over the Constitution,” and “Ratification and the Bill of Rights” — lay out Cruz’s theory of constitutional interpretation. He is an originalist through and through. He writes at the beginning of Chapter Two that since “many have admitted the importance of original intent… I will therefore look to the debates and ratifications of the Constitution and the Amendments for guidance as to what they mean. No legal document would be interpreted otherwise, and it would be a mistake to do so with legal documents of such great importance.” What follows is a meticulously researched, heavily annotated narrative of the summer of 1787, the constitutional ratification process, and the ultimate end of the Constitution: “The document was written in order to expand the role of the central government while carefully limiting its powers and protecting the people’s rights by explicitly enumerating the powers of that government.”
Cruz waxes sentimental on occasion: “the selection of delegates gathered were among the finest ever assembled…all men of great stature and learning come to devise a government. They brought with them the political theories of Plato and Montesquieu and Locke, the foundations of Roman and British law, and the traditions and beliefs of Catholic and Protestant Christianity.” Sometimes one gets the feeling he is writing more for posterity than the contemporary academic community. But the writing is fluid enough and the analysis sharp enough that he basically gets away with it. A particularly lucid section, for instance, focuses on rights and powers (“individuals have rights, personal spheres protected from infringement by others. Governments have powers, authority to command or coerce others for specified ends. It is meaningless for a government to have rights over people, for a government right is simply a legitimate power”), and on the numerous people who have confused the two. He lists — in a footnote, no less — John C. Calhoun, Gordon Wood, and former Chief Justice Charles E. Hughes among the guilty parties.
Elsewhere, he makes a forceful argument against the constitutional protection of unenumerated natural rights, that doctrine embodied in the Declaration of Independence’s claim that all human beings are born with certain “unalienable rights.” Instead, Cruz maintains that the Constitution, as a primarily legal document, only protects “claims of non-interference against the government — it means ‘non-powers.’” This interpretation feeds and confirms his overarching view of limited government.
Yet the assertion that the distinction “between natural, constitutional, and legal rights, is one very few modern readers of the Constitution have understood” is indicative of an arrogance that pops up intermittently. At one point, for instance, Cruz claims that the modern Court has “rendered meaningless the checks and balances in our government, skewed the separation of powers, and alienated the republican principles of the Constitution by giving greatest authority to non-elected, non-representative judges.” But this single-mindedness gives the thesis its driving tone. He’s got a story to tell, and he isn’t pausing to consider alternative narratives.
In fact, that story is so well told that not until Chapter Four, “The Amendments in the Courts,” did I realize how little of it had to do with the amendments of interest. His treatment of Ninth and Tenth Amendment jurisprudence seems slight, more summary than analysis. He opens Chapter Four by stating, “For the first 175 years of our Constitution, from 1791 to 1965, the Ninth Amendment was almost never relied upon or even mentioned by the Court […] the first reference…came in Dred Scott v. Sanford.” That the Amendment’s first Supreme Court reference should be found in the most infamous case in U.S. constitutional history surely merits more than a single sentence. Finally, Cruz gets into the meat of modern Ninth Amendment jurisprudence: notably, its role in the formation of a constitutional right to privacy, as exemplified in Griswold v. Connecticut (1965), which did so in the context of marital relations, and Eisenstadt v. Baird (1972), which extended Griswold’s reach to unmarried couples, though not by the Ninth Amendment. But save an icky joke — “Griswold and Eisenstadt laid the seeds (no pun intended) for future privacy decisions,” including Roe v. Wade (1973) — there is little argument to this section.
Cruz’s treatment of the Tenth Amendment focuses largely on the history of judicial review in general. The problem is the Court’s assertion in United States v. Darby Lumber Co. (1941) that the amendment “states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments.” Between Darby and the time Cruz composed his thesis (1992), the Court had only invoked the Tenth in four other cases. (Perhaps this is why there was so little in the literature to begin with…) As readers, then, we are left to rely on the sheer confidence of the writer that the Courts “have killed the Tenth, buried the doctrine of enumerated powers with it.” Here Cruz’s youth is a disadvantage and, in the absence of strong argumentation against Darby, he is defenseless against the sheer magnitude of the Supreme Court’s reputation on legal matters.
In addition to burying the doctrine of enumerated powers, Cruz concludes, the Courts have “sought to resurrect the Ninth in a form foreign to its purpose. They see the spectre of the Ninth as a vehicle of subjective, normative value judgements to be imposed against Congress and the states. And this awakening protector of rights” (this is the final sentence) “which the Court is transforming into a power for itself, can remind us — from the dead — that men are not angels, but men — seeking power over the heavens…and below.”
On the whole, many questions remain unanswered. How much of Cruz’s criticism of contemporary Ninth Amendment jurisprudence is based in his opposition to the specific rights at stake? He states his disapproval of abortion on moral, not constitutional, grounds. If the Ninth Amendment had been resurrected in the service of some other right, would he be so opposed?
And what of the specific relationship between the Ninth and Tenth Amendments? Even if they were both “drafted to reiterate, in a sense, the prior presumption against federal power and for the people’s rights,” what accounts for the vastly different ways in which they are invoked today? Why does “the Ninth Amendment seem to be enjoying new life after a long sleep,” as he argues, while the “Tenth rests, as it might prepare to awaken?”
Two and half decades on, though, those questions matter little. The historical significance of Ted Cruz’s thesis, for better or for worse, is as testament to his consistent, rock-ribbed conservatism. Sections can be found almost verbatim in his stump speeches and debate performances. His presidential campaign website includes among its platform issues “Defending the Constitution of the United States of America.” It states:
“Ted Cruz has spent a lifetime fighting to defend the Constitution. Our nation’s founding document and the supreme law of the land was crafted by our founding fathers to act as chains to bind the mischief of government and to protect the liberties endowed to us by our Creator. Unfortunately, recent administrations have defied the Constitution and the rule of law, and as a result we are less free. We need to restore the Constitution as our standard… We need to give power back to the states and the people so that we remain a land where liberty can flourish.”
In an undergraduate thesis, language like that may be presumptuous. But since then, Ted Cruz has gone to law school, clerked for a Supreme Court Chief Justice, served as Texas Solicitor General, argued nine times before the Supreme Court and authored seventy Supreme Court briefs, and spent three years in the United States Senate. So when he declares today that “five unelected lawyers have declared themselves the rulers of 320 million Americans,” people listen, and they vote. And he can truthfully claim that he’s been saying this stuff since 1992.