Is Harvard Law Using Ted Cruz to Pander to Conspiracy Theorists?

Republican Senator Ted Cruz Speaks At The Heritage Foundation

In case you missed the official announcement:

From now on conspiracy theorists will no longer be receiving their memorandums, instructions, and dispatches (including “red meat” and “dog whistles”) via listservs, talk radio, blogs, or newsletters. Neither will rumors or conspiracy theories be whispered to them at the secret cabal meetings, effective immediately. All members of the vast right-wing conspiracy, the bitter clingers, the “conspiracy nuts” and tea party members have been informed that they will hitherto be apprised of important subversive announcements, apocalyptic instructions, and other missives via the Harvard Law Review.

Yes, you read that correctly.

According to Ben Jacobs at The Daily Beast, Sen. Ted Cruz (R-TX) is now using the Harvard Law Review, “bastion of liberal elitism,”  to communicate with  “those on the far right concerned about Agenda 21, NAFTA superhighways, or any of a range of other conspiracy theories.” Cruz has apparently signaled this shift in right-wing strategy by penning a 10,000 word essay titled “Limits on the Treaty Power,” inspired by the Supreme Court’s consideration this term of Bond v. United States, a Tenth Amendment case.  Jacobs seems baffled that Cruz somehow managed to convince the editors of the esteemed publication to give him space to make the case for limits on the powers of treaties, and implies that there must be some nefarious secret message buried within the essay “replete with 181 footnotes, against the scale and scope of the modern federal government.”

The phraseology Cruz uses, according to Jacobs, “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.”

[Note: At least the left is now acknowledging that those on the right are literate.]

In the essay, Cruz argues that, “The president cannot make a treaty that displaces the sovereign powers reserved to the states.” Citing Missouri v. Holland, a 1920 Supreme Court case dealing with the Migratory Bird Treaty Act of 1918, Cruz warns that, “if Justice Holmes was correct [that Congress has plenary power to implement any treaty], 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.”

Such language is pure “red meat” for the right, according to Jacobs.

And then there are these secret code words embedded in Cruz’s essay: “We must jealously guard the separation of powers and state sovereignty if we are to preserve the constitutional structure our Framers gave us.”

Cruz is blowing a “dog whistle for conspiracy nuts” with this constitutional crazy talk, says Jacobs.

Jacobs claims that a “substantial portion of Republican primary voters” are concerned about these issues but that politicians haven’t figured out how — until now — to “pander” to them without “coming across as wacky.”

Ted Cruz has apparently unlocked that door and escaped from wacky land, into to the land flowing with academic respectability. According to Jacobs:

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 Harvard Law Review is “one of the most prestigious publications in the United States, but nevertheless, Jacobs is certain that Cruz’s arguments would not be accepted by a “majority of scholars.” He’s willing to concede that Cruz doesn’t come across as wacky and that his arguments are “entirely respectable,” but let’s not get carried away.

Nevertheless, Jacobs warns that “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.”

[No irony—none at all—in Jacobs implying that Tea Party voters are swayed by intellectual arguments rather than wacky pandering.]

Here’s a thought. Perhaps Sen. Cruz is just smart and has the academic credentials and background experience with which to argue constitutional issues — sans conspiracy theories — in the Harvard Law Review.

After all, the guy did graduate magna cum laude from Harvard Law. While there, Cruz was a primary editor of the Harvard Law Review, executive editor of the Harvard Journal of Law and Public Policy, and a founding editor of the Harvard Latino Law Review. He also has authored more than eighty United States Supreme Court briefs and presented forty-three oral arguments, including nine before the United States Supreme Court. Cruz has been named by American Lawyer magazine as one of the 50 Best Litigators under 45 in America. The National Law Journal named him one of the 50 Most Influential Minority Lawyers in America and the Texas Lawyer named him one of the 25 Greatest Texas Lawyers of the Past Quarter Century.

So maybe Ted Cruz actually knows enough to articulate a cogent thought or two on matters of law.

Ah, but this “conspiracy nut” red meat theory fits the narrative about anti-intellectual right-wing rubes so much better — even when the rubes are recognized by a “bastion of liberal elitism.”

So for now the right-wing conspiracy theorists may have to settle for getting their information from the Harvard Law Review.  It’ll set them back $60.00/year for a subscription, but liberty has its price. As that great statesman (and constitutional conspiracy theorist) Thomas Jefferson once said,

I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.