Ted Cruz of Texas and Mike Lee of Utah are two of the most prominent “constitutional conservatives” in the Senate. They built their political careers on their supposed fidelity to the Constitution and the original intent of the founding fathers. Cruz made his constitutional conservatism the centerpiece of his 2016 campaign for president, while Lee has written three books on the founding era and presents himself, to the public, as a constitutional scholar rather than a mere politician.
It is interesting, then, that Lee and Cruz were among the Republican senators most involved in Donald Trump’s attempt to subvert the Constitution and install himself in office against the will of the voters.
As The Washington Post reported last month, Cruz worked “directly with Trump to concoct a plan that came closer than widely realized to keeping him in power.” According to this plan, Cruz would object to and delay the counting of electoral votes on Jan. 6 in favor of a 10-day election audit that would give Trump-friendly state legislatures time to overturn the result and send new electors to Congress.
And as CNN reported last week, Lee was in close contact with Mark Meadows, then the White House chief of staff, in the months, weeks and days before the Jan. 6 attack. Lee supported and encouraged the president’s effort to overturn the election, with both ideas and political assistance. “I have an additional idea for the campaign,” he wrote to Meadows on Nov. 23, 2020. “Something is not right in a few states. I think it could be proven or disproven easily with an audit (a physical counting of all ballots cast) in PA, WI, GA, and MI.”
Two weeks later, Lee would tell Meadows, “If a very small handful of states were to have their legislatures appoint alternative slates of delegates, there could be a path.” And on Jan. 4, 2021, Lee told Meadows that he had been “calling state legislators for hours today, and am going to spend hours doing the same tomorrow” in hopes of finding “something from state legislatures to make this legitimate and to have any hope of winning.”
Lee eventually voted to certify the results of the presidential election and had previously told journalists, and the public, that he was dismayed by the events of Jan. 6. In their book covering the insurrection, “Peril,” Bob Woodward and Robert Costa report that Lee “was shocked” by the conservative legal scholar John Eastman’s plan to delay final certification of the election and “had heard nothing about alternative slates of electors.”
But the truth is that Lee was with the president from the start. His only real objection — the only thing that gave him pause — was that Trump and his allies had not crossed their “T’s” or dotted their “I’s.” Which is to say that they had not done the work necessary to give their attempted self-coup a veneer of legality and constitutional fidelity. Or, as Lee wrote to Meadows, “I know only that this will end badly for the president unless we have the Constitution on our side.”
Cruz and Lee were not the only “constitutional conservatives” to support Trump’s attempt to keep himself in office after losing the Electoral College vote (to say nothing of the popular vote). Their participation in the plot, however, tells us something important about what it actually means to be a “constitutional conservative.”
The term is supposed to convey a principled commitment to both the Constitution and the institutions of the American republic it helped bring into being. But if Cruz, Lee and other “constitutional conservatives” have any commitment to the Constitution, it is only to the letter of the document, not its spirit.
The spirit of the Constitution, of the Philadelphia Convention and everything that followed, is embodied in self-government. The point of the deliberation and experimentation of the founding moment was to find some ground on which the American people, however narrowly defined, could live out the principles of the Revolutionary War they had just fought and pursue their common interests.
Whatever the specifics of the governing charter, the essential idea was that this government would be one that, as James Madison wrote, “derives all its powers directly or indirectly from the great body of the people.”
The people have, for now, agreed to elect the president through a process that gives a good deal of discretion to a broad range of officials, some elected, some appointed, but all working with legitimate authority. In the main, they used that authority to allow as many people to vote as possible, in accordance with our laws and our norms.
If, under those conditions, Donald Trump had won the 2020 presidential election, neither Cruz nor Lee nor anyone else in the Republican Party would have disputed the outcome or contested the process. It would have been a shining example of the strength of our republic.
But he did not win, and so our “constitutional conservatives” fought to undermine and overturn our institutions so that one man would not have to face the pain of defeat. Which gets to the truth of what that “constitutional conservatism” really seems to be: not a principled attempt — however flawed in conception — to live up to the values of the founding, but a thin mask for the will to power.
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