by Ted Cruz
So the Senate floor staff called the vice president’s office again… and for a second time, he turned his motorcade around. It takes about twenty minutes to get from the Naval Observatory (the vice president’s residence) to the Capitol. Twenty minutes later, Vice President Pence walked onto the floor, took the presiding chair, and said, “the ayes being fifty, the nays being fifty, the chamber being equally divided, the presiding officer votes in the affirmative, and the amendment is adopted.”
And with that, in the very early hours of the morning, the Senate passed what remains the most significant federal school-choice legislation ever passed. President Trump signed it into law, and today it allows parents and grandparents to save in a tax-advantaged account and then spend up to $10,000 per student, per year on tuition for public school, private school, religious school, parochial school—whatever the parent and student chooses. More than 75 percent of the families with 529 plans earn $150,000 per year or less, and my amendment potentially benefits up to 50 million school kids nationwide.
But still, far too many low-income students remain trapped in schools where they have little hope of learning. The solution of most Democratic Party politicians (and the teachers union bosses to whom they defer) is inevitably just more taxpayer money for the public schools. That can help, but, as the facts demonstrate, more money alone does not solve problems. For example, in the District of Columbia, taxpayers pay over $27,000 per student to fund public schools, and yet too many of the D.C. public schools produce dismal results. The kids and parents understand this; that’s why 14,000 more students have applied for the D.C. Opportunity Scholarships (perennially underfunded by Congress) than there are scholarships available, and that’s why more than 11,000 D.C. students are currently stuck on the charter-school wait-list.
Add to that rampant crime, drugs, and violence in too many inner-city schools, and the desperate situation children face can be overwhelming. In the Cleveland public schools, in the 1990s—staggeringly—a student entering ninth grade was statistically more likely to be a victim of violent crime at school than he or she was to graduate on time in four years. Thanks to heroic leadership by local leaders, that led the State of Ohio to establish a ground-breaking voucher program. Of course, it was immediately challenged in court.
The Ohio Pilot Project Scholarship allowed low-income students in failing schools to qualify for a scholarship of up to $2,250 that could be used for local private schools. The scholarships were awarded based on financial need, and—because the number of students applying was much greater than the number of scholarships made available—they were awarded by lottery. Even though the $2,250 scholarship was substantially less than the per student funding for public schools, fifty-six private schools in Cleveland agreed to participate in the program.
Parents chose which schools their children attended. But because forty-six of the fifty-six participating schools were religious, plaintiffs argued that the Constitution prohibited the scholarships from going to them. The federal district court agreed and struck down the scholarship program. The Sixth Circuit Court of Appeals did as well.
The Supreme Court reversed that decision, 5–4, in Zelman v. Simmons-Harris. Chief Justice Rehnquist wrote the majority opinion, upholding the Ohio scholarship program. The Court described the crisis facing the schoolchildren in Ohio in no uncertain terms, pointing to the failure of Cleveland public schools to meet the most basic educational standards. The few students who managed to graduate were often barely literate, while two thirds of students didn’t even make it to their senior year.
The Ohio scholarship program was designed to give a lifeline to those students and to help save the public schools. More than 3700 students participated in the scholarship program, and 60 percent were from families at or below the poverty line.
Nevertheless, the litigation onslaught the Ohio school-choice program faced was based on the notion that the Constitution prohibits even a penny of public money from ever going to a religious school. It’s an odd notion, given the long legacy of scholarship programs allowing university students to choose religious institutions. Pell grants are federal student-aid awards given to low income students to be used at the college of their choice. Nobody seriously contends that students cannot use Pell grants to attend the University of Notre Dame or Brigham Young University, even though those are religious institutions.
Yet somehow, the argument goes, a scholarship that is entirely permissible for an eighteen-year-old college student is suddenly unconstitutional for a seventeen-year-old high-school senior. That’s what the federal district court held, as well as the federal court of appeals. The majority in Zelman rejected that claim, ruling that the Ohio statute was “neutral in all respects towards religion” and “part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district.”
As a matter of constitutional law, an individual parent or student making the choice to attend a religious school and to use scholarship funds to do so is not the government establishing a religion. It is a neutral program allowing individual choice. The Zelman Court concluded that “the program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.”
Justice Clarence Thomas joined the majority opinion in full, but he separately wrote a soaring concurrence. He opened by quoting abolitionist hero Frederick Douglass:
Frederick Douglass once said that “[e]ducation… means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.” Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court’s observation nearly 50 years ago in Brown v. Board of Education, that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,” urban children have been forced into a system that continually fails them.
Justice Thomas, having grown up in abject poverty in Pin Point, Georgia, understands firsthand the urgency of school choice as a civil-rights issue. Raised by his grandparents, and against extraordinary obstacles, Justice Thomas poured himself into his academic studies and graduated from Holy Cross University and then Yale Law School.
He is a brilliant jurist and the leading conservative on the Supreme Court today. Few people attract more contempt and derision from the left than do African-American conservatives, and Justice Thomas has faced decades of belittling insults from the press, law school professors, and other hardened “liberals.” Hollywood director Spike Lee was shamefully quoted as saying that Malcolm X would call Justice Thomas “a handkerchief-head, a chicken-and-biscuit-eating Uncle Tom.”
That venom, it seems, is never directed at liberals and rarely even at white conservatives. Justice Scalia, somehow, never had his brilliance questioned; for decades, leftists have wrongly ridiculed Justice Thomas’s intellect. And yet, every term on the Court, he will pick one or two opinions to fundamentally reassess a line of jurisprudence, laying out careful analyses about the extent to which the recent (or not so recent) precedents comport with the text of the Constitution, the original understanding of its meaning, and first principles.
As a person, Justice Thomas is extraordinary. No member of the Court is more beloved by the Court’s janitors, electricians, guards, and support staff with whom he connects on a genuine, personal level. He’s down to earth and real, with a deep, booming laugh—imagine Santa Claus bellowing “ho, ho, ho!”
Two vignettes capture Justice Thomas in person. First, when I was clerking, I brought my college and law school roommate, David Panton, by the Court to meet him. For thirty years, David has been (other than Heidi) my closest friend in the world. He was the best man at our wedding. He’s from Jamaica, was a Rhodes Scholar, and has a doctorate from Oxford. Barack Obama, famously,
was the first black president of the Harvard Law Review; David was the second. (Obama, then an unknown community organizer who had graduated a few years earlier, called David to congratulate him after he was elected.) I told Justice Thomas about David, and he wanted to get to know him.
He and David talked for over an hour; I mostly listened. At the end, Justice Thomas wanted David to come clerk for him, but David said he didn’t want to pursue law (today, he’s a private-equity investor instead).
“Don’t you want to be a lawyer?” Justice Thomas asked him.
“No, no,” David responded, “I leave that to the smart people.”
“So do I,” Justice Thomas quipped in response.
I laughed so hard my ribs hurt, and Justice Thomas’s booming laugh echoed throughout his chambers. Two of the smartest men on the planet, both black conservatives, having the humility to make self-deprecating jokes spoke volumes about who they were.
A second Justice Thomas story involved my co-clerk, Rick Garnett, who had worked the previous year as a law clerk in Little Rock, Arkansas. There, he and his wife Nicole had befriended and tutored a young African-American boy named Carlos. The boy had never left Arkansas before, but Rick and Nicole paid to fly him up to D.C. Rick emailed all nine chambers at the Court, saying that this young boy would be in town and asking if any of the justices would be willing to meet with him. Two offices responded—those of Justices Ruth Bader Ginsburg and Clarence Thomas.
Ginsburg is an incredibly talented lawyer and jurist, and it was very kind of her to meet with Carlos, but her prim demeanor is that of a legal librarian, and so it was difficult for her and the young boy from rural Arkansas to connect. Clarence Thomas understood the world that Carlos had come from.
At the end of their two-hour conversation, Carlos observed that Thomas was a Dallas Cowboys fan. (Thomas had a framed picture of himself with quarterback Troy Aikman in his office.) The kid was impressed—that was way cooler than the Supreme Court—and Thomas noticed. So Thomas rose from his chair, walked to his desk, and showed the boy a Super Bowl ticket, encased in Lucite, and signed by Cowboys running back Emmitt Smith. He handed the ticket to the young man.
“I’m going to give you this,” Thomas said. “But I want you to promise me that you will get A’s in school next year.”
The young man, astonished and wide-eyed, nodded in agreement.
It was one of countless stories of random acts of kindness by Justice Thomas that the media never reports. But it’s who he is, because he remembers where he comes from.
Returning to his Zelman concurrence, Justice Thomas elaborated on why no civil rights issue is more pressing than school choice:
While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society. As Thomas Sowell noted 30 years ago: “Most black people have faced too many grim, concrete problems to be romantics. They want and need certain tangible results, which can be achieved only by developing certain specific abilities.” Black Education: Myths and Tragedies (1972). The same is true today. An individual’s life prospects increase dramatically with each successfully completed phase of education.
Despite the incredible stakes for schoolchildren across America and despite the fact that school-choice programs allow parents and students (not government) to make their own choices, four Supreme Court justices voted to strike down the Ohio school-choice program.
In June of 2020, the Court decided Espinoza v. Montana Department of Revenue, another major victory for school choice. Montana had established a tax-credit program for low-income children to be able to attend the school of their choice, and the Montana Supreme Court struck that program down pursuant to a provision of the Montana Constitution. That provision was a so-called “Blaine amendment,” modeled after the failed federal amendment introduced by Speaker of the House William Blaine in 1875. In the years that followed, as a result of a virulent outpouring of anti-Catholic bigotry, thirty-eight states adopted Blaine amendments into their state constitutions, each prohibiting any tax dollars from going to “sectarian” institutions.
Writing separately, Justice Alito explained, “a wave of immigration in the mid-19th century, spurred in part by potato blights in Ireland and Germany, significantly increased this country’s Catholic population. Nativist fears increased with it. An entire political party, the Know Nothings, formed in the 1850s ‘to decrease the political influence of immigrants and Catholics.’ ” Alito detailed the sordid history of Blaine amendments and how the Know Nothing party was “in many ways a forerunner of the Ku Klux Klan.” Personally speaking, since my mom’s ancestors were among those Catholics fleeing the Irish potato famine and coming to America in the 1800s, that history has a particular resonance with me.
In Espinoza, the Court reversed 5–4, striking down Montana’s Blaine amendment and upholding the Montana school-choice program. The Court ruled that states don’t have to create school-choice programs, but, if they do, the First Amendment does not allow them to exclude religious schools. Government cannot single out and exclude people of faith. Tragically, just as with Zelman, four justices were fully prepared to dismantle the Montana program and remove that option from Montana school kids.
On the mantle in my Senate office sits a bust of Dr. Martin Luther King Jr. A few feet away, on the bookcase, is a framed picture of hundreds of Cleveland schoolchildren—mostly low-income African-American and Hispanic children—holding hand-written signs in front of the Supreme Court on the day Zelman was argued. As I sit at my desk, I directly face that bookcase and often look at that picture and reflect on the kids whose future school choice is all about.
Today there are sixty-five school choice programs in twenty-eight states. Over 500,000 students benefit every year from vouchers, tax-credit scholarships, and education savings accounts. We need many, many more, and I will continue to fight hard to expand choice for every child in our nation.
Four justices were prepared to strike down Ohio’s program, Montana’s program, and virtually every other school choice program in America, taking away the educational options and—in a very real sense—the hope of millions of kids. And, from that heartbreaking outcome, we are just one vote away.
CHAPTER 3 GUN RIGHTS AND DISTRICT OF COLUMBIA V. HELLER
The First Amendment is first in our Bill of Rights, but it is not complicated arithmetic to observe that the Second Amendment comes second. The Framers of our Constitution created a Bill of Rights to protect the most important individual liberties we enjoy as Americans. And the right of the people to keep and bear arms was, and is, as former Supreme Court Justice Joseph Story once put it, the “palladium of the liberties of a republic.”
Much that can be said about the natural right to religious liberty can also be said about the natural right to self-defense. Just as there can be no true political liberty without a robust protection of religious liberty under the rule of law, so too can there be no true political liberty without a robust protection of the right to self-defense under the rule of law. Social stability and human flourishing require the right to bear arms just as they require the right to worship.
Importantly, the Second Amendment is not about hunting. Nor is it about skeet shooting, target shooting, or other leisure activities. Rather, the Framers of the Second Amendment put that provision in the Bill of Rights to protect our lives, to protect our homes, and to protect our families. It is about the right we have, if somebody comes into our home at night to harm our children, to defend our children and to defend our lives. It is about the right we have, as God-fearing, law-abiding, conscientious, armed citizens, to hold government accountable to “We the People of the United States”—who, in our system of governance, are the ultimate sovereigns.
From time immemorial, tyrants have sought to consolidate power by robbing a free people of their ability to properly defend themselv
es and their families. America’s Founding Fathers were well aware of this sad and sorry history. As a result, they sought to preclude the citizens of the country they were birthing from ever having to worry about their right to self-defense—whether that right applies against a petty thief or a tyrannical government.
“No free man, shall ever be debarred the use of arms,” Thomas Jefferson wrote in an early draft of the Virginia Constitution. “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them,” Richard Henry Lee wrote at the time. Perhaps most direct and to the point was Jefferson and Lee’s Liberty-loving fellow Virginian, George Mason, who said around the time of the Constitution’s ratification debates that “to disarm the people… is the most effectual way to enslave them.”
The Constitution’s Framers, prescient as they were, were meticulous in trying to ensure that Americans would forever remain a free people. They were adamant that Americans would always prize their Liberty. And they were passionate about securing Americans’ right to self-defense so that we would never find ourselves subjugated by the rise of a would-be despot.
Ultimately, the Framers of the Bill of Rights chose to codify the natural right to self-defense in clear and unmistakable constitutional language: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Or at least most readers would normally find that to be clear and unmistakable language. By its express terms, it protects your and my right “to keep and bear Arms,” which it demands “shall not be infringed.”
Yet for over two centuries after the Bill of Rights was ratified, the Supreme Court never affirmed that the Second Amendment means what it so plainly says. Amazingly, it wasn’t until just twelve years ago that the Supreme Court did precisely that in the landmark case of District of Columbia v. Heller. It was a case that I helped litigate, and it is a case that highlights just how far the radical left would go to destroy the Second Amendment if it were to regain control of the Supreme Court ever again.