In Harvard Law Review, Ted Cruz Blows Dog Whistle for Conspiracy Nuts

Normally when conservative politicians make dog-whistle appeals to their base, they do so in right-wing publications. They do an interview with World Net Daily or Breitbart or call in for a radio hit with Rush Limbaugh or Mark Levin to get their message across.

However, the genius of Ted Cruz is that he launched a 10,000-word broadside, replete with 181 footnotes, against the scale and scope of the modern federal government this week in a publication considered by many to be the bastion of liberal elitism—the Harvard Law Review. In the article, one can see within the essay appeals to those on the far right concerned about Agenda 21, NAFTA superhighways, or any of a range of other conspiracy theories, yet all buried within the tight legal argument and presented in a high-minded way that passes muster in Cambridge, Mass.

In an essay entitled Limits on the Treaty Power that appeared on the website of the publication once edited by Barack Obama, Cruz argues in favor of overturning a 100-year-old Supreme Court case in the name of states’ rights. The case, Missouri v. Holland, was about whether a treaty that required the federal government to enact laws regulating migratory birds was constitutional. The court, in a 7-2 decision, said it was and, in its opinion, written by Justice Oliver Wendell Holmes Jr., suggested that the treaty power is broader than the Congress’s normal lawmaking power. Cruz was spurred to write the essay by the Supreme Court’s reconsideration this term of the scope of the treaty power in a case called Bond v. United States.

The central point of the Texas senator’s argument: “The president cannot make a treaty that displaces the sovereign powers reserved to the states.” Throughout his essay, Cruz warns of a scenario where, unless action is taken, the federal government could use the treaty power to circumvent the states. In fact, the Texas senator warns “if Justice Holmes was correct, then the president and Senate could agree with a foreign nation to undo the checks and balances created by the people who founded our nation.”

This phraseology serves as red meat to those on the right concerned about the United Nations, especially those who believe that Agenda 21, a non-binding plan for sustainable development, is a Trojan horse for instituting world government. Voters with these concerns make up a surprisingly substantial portion of Republican primary voters, but are relatively hard for mainstream politicians to pander to without coming across as wacky. Cruz is using language and arguments that appeal to these voters but in a way that is entirely mainstream. After all, he’s writing in one of the most prestigious publications in the United States and while Cruz’s legal arguments would not be accepted by a majority of scholars, they are still entirely respectable in legal academe.

The difficulty for most Republican presidential hopefuls in 2016 is to find ways to appeal to this vocal minority of primary voters without alienating everyone else. In couching concerns about American sovereignty in a law-review article about a case currently before the Supreme Court, Cruz is able to deftly achieve this rare feat while burnishing his intellectual credentials at the same time.

Cruz still faces a number of obstacles to achieving his party’s nomination, but any politician who can find a way to appeal to the most conservative Tea Party voters in the pages of the Harvard Law Review should never be underestimated.