by Ted Cruz
Shortly thereafter, on his campaign website, Beto’s campaign began selling T-shirts emblazoned, “Hell yes, we’re going to take your AR-15.” When that happened, I couldn’t resist tweeting: “Just a reminder, when I said it, PolitiFact (a wholly-owned subsidiary of the DNC) rated ‘Beto wants to take our guns’ as ‘FALSE.’ Maybe they should buy one of his new T-shirts.”
PolitiFact issued an unusually personal response to my tweet, fitfully declaring that they’re not “a wholly-owned subsidiary of the DNC.” As the Bard put it, methinks she doth protest too much. PolitiFact further asserted that O’Rourke had recently “partially changed his position” and that its 2018 fact-check of O’Rourke remained accurate as of the time it was conducted. Of course.
Later in the 2020 Democratic presidential primary, well after Beto had dropped out and Joe Biden had won Super Tuesday in March, Biden stood alongside Beto O’Rourke in Dallas and pledged that Beto might well be in charge of gun policy in a Biden presidential administration.
That’s not surprising because Biden’s own views are just as radical. In August 2019, a television interviewer asked Biden the following question: “So, to gun owners out there who say, well, a Biden administration means they’re going to come for my guns?” Biden’s response? “Bingo!”
Moreover, in today’s Democratic Party, gun confiscation is becoming more and more central to their platform. Some candidates, like Beto O’Rourke and sometimes Joe Biden, openly talk about it. Others, like former Supreme Court justice John Paul Stevens, openly advocate for repealing the Second Amendment altogether. Indeed, in 2018, then-retired justice Stevens wrote a widely read op-ed in the New York Times expressly entitled, “Repeal the Second Amendment.”
But of course, there were already four votes on the Supreme Court (including his own) to repeal the Second Amendment by judicial fiat—to eliminate the right to keep and bear arms from the Bill of Rights altogether. Four votes to remove any constitutional protection of our right to keep and bear arms and to empower government to confiscate every firearm in America, to make it illegal for you to defend your home or your family, and to make it a felony for law-abiding citizens to own guns. With the Second Amendment, as with so many other vital issues, we’re just one vote away.
CHAPTER 4 SOVEREIGNTY AND MEDELLÍN V. TEXAS
Who governs America? Who has authority over our laws and our criminal justice system? Is America its own nation, or are we subject to the rule of the United Nations and the World Court? And can the president of the United States give away U.S. sovereignty? Those were the questions at the heart of the most important case I argued at the Supreme Court.
The term “sovereignty” refers to the ability of a self-governing people to exercise the ultimate authority that comes with ruling itself. Sovereignty is a hallmark of every free nation-state, especially in the modern “Westphalian” nation-state system that followed the conclusion of the Thirty Years’ War in 1648. It means being able to define who you are, dictating your own rules and norms, and controlling your own destiny.
A nation is sovereign if it is able to define and control the people that constitute it, is able to make all the relevant decisions that come with day-to-day governance, and is able to hold accountable its own elected and appointed rulers. A nation is not sovereign if it lacks any of these features—especially if the nation cannot control its own borders, cannot define who constitutes its own people, or is unable to make its own governing decisions due to interference or control from either another country or a transnational institution.
America’s Founding Fathers had no intention of making this country anything other than a fully sovereign Republic. As Thomas Jefferson made clear in the Declaration of Independence, sometimes “it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”
That is not the battle cry of a people who sought to retain formal or legal ties to the British Crown. To the contrary: attaining full sovereignty was the singular goal of the American Revolution.
So America was always intended to be fully sovereign. Indeed, the language of our Constitution’s Preamble clarifies this. That Preamble establishes that they who “do ordain and establish this Constitution” are “We the People of the United States.”
Dr. John Eastman, a respected constitutional law scholar and my friend and former co-clerk, is fond of noting that the Preamble does not refer to “We the People of the World” but to “We the People of the United States.” That is a monumental distinction. It is a distinction that makes all the difference in the world. It is a distinction that distinguishes between national sovereignty and transnational encroachment upon sovereignty.
America’s constitutional order is defined by two hallmark structural features: the separation of powers and federalism. Our tripartite separation of powers at the federal level divides power between the legislative, executive, and judicial governmental departments, a division that has direct antecedents in both the centuries-old English constitutional system and the Enlightenment-era theorizing of the Frenchman Baron de Montesquieu.
But federalism was a more uniquely American political innovation. In our federalist system, both the national government and the state governments are sovereign over their own spheres of influence and authority. Most of the day-to-day governance was meant to unfold at the state or local levels. As James Madison explained in Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
In America, therefore, both the federal and state governments are themselves partially sovereign. And it is We the People who are the true, ultimate sovereigns over all levels and institutions of our government. In America, government is supposed to work for the people—not the other way around.
But over the past century, America’s sovereignty has too often been chipped away by the rise of transnational institutions that run roughshod over our own internal decision-making. From the United Nations to the International Criminal Court to the World Trade Organization, there has been a dangerous growth of institutions that make purportedly binding decisions over otherwise-sovereign nation-states. To be sure, some of these institutions are better than others. Some of them, perhaps, are more justifiable than others. But, by design, all of these transnational institutions are not democratically accountable—and certainly not to the American electorate—thus undermining our most basic conceptions of sovereignty in the Westphalian nation-state system.
This is hardly a problem that uniquely afflicts the United States. On the contrary, perhaps the single most iconic sovereignty-undermining transnational institution operating in the world today is the European Union. The once mighty and distinct peoples of Europe—with rich and varied languages, culture, history, currency, and governance—all subjugated their unique diversity and the democratic authority of their citizens to a supra-national, bureaucratic central authority. And with their thunderous “Brexit” vote of 2016 and delayed successful independence earlier this year, the United Kingdom restored its own sovereignty from the European Union’s bureaucrats and mandarins. Brexit was, I hope, a watershed moment in the tug-of-war between sovereignty and transnationalism.
But the sovereignty restoration movement has not been limited to Britain. All across the world, from Viktor Orbán in Hungary to Jair Bolsonaro in Brazil to Donald J. Trump right here in the United States, many nations have recently elected national leaders who have run on an express political platform of recapturing the national interest from the unaccountable clutches of the international community. And as recent books by Israeli political philosopher Yoram Hazony and National Review editor Rich Lowry have both detailed, the intellectual battle between nationalism and transnationalism has perhaps never been more front and center in the public ey
e than it is now.
Defending U.S. sovereignty has been a deep passion of mine for decades. And of all the cases I’ve ever litigated at the Supreme Court, one stands out as my favorite—as the most complex, the most fascinating, and by far the most consequential.
It was a case that goes to the heart of sovereignty. In Medellín v. Texas, we successfully defended the sovereignty of both the United States and the great state of Texas against the United Nations and its judicial arm, the World Court. And we stood up to a president—from my own party—to ensure that no president, Democrat or Republican, can ever give away U.S. sovereignty. We turn now to that story.
* * *
What started with a horrific crime of violence evolved into a case that spanned decades and drew in ninety foreign nations, the World Court, and the president of the United States.
One hot, muggy summer evening, June 24, 1993, two teenage girls in Houston, Texas, were walking home and decided to take a shortcut. Around 11:15 p.m., they encountered the “Black and Whites Gang,” who had assembled to initiate a new member. As the girls walked past, José Ernesto Medellín and his fellow gang members grabbed them, assaulted them, brutally raped them, and then murdered them both.
I grew up in Houston. Houston is a big city that has seen quite a bit of violent crime. Yet this crime shocked the conscience of the city. The horror and brutality those gang members unleashed on a fourteen-year-old girl and on a sixteen-year-old girl was unspeakable.
Later that evening, Medellín bragged to the family of another gang member about how proud he was of their horrific crime. He boasted about how he and his brother had kept a ring and a Disney watch as trophies of their crime.
Five days later, Medellín and his compatriots were arrested. And hours later, he hand-wrote a detailed confession to the crime. It remains one of the most bone-chilling things I have ever had the displeasure of reading. Without remorse, without hint of human compassion, he meticulously described how each girl had pleaded for her life prior to being brutally murdered.
Given his written confession and the overwhelming evidence of guilt, Medellín unsurprisingly was tried and convicted of murder during the course of a sexual assault—a capital offense. He was sentenced to death.
Years after his conviction, Medellín raised a brand-new issue in the case. It so happened that José Ernesto Medellín was a foreign national. He was born in Mexico, illegally immigrated to the United States, and lived in the United States for most of his life. So despite the fact that he grew up in America and could speak, read, and write English, he technically remained a Mexican national.
Under a treaty called the Vienna Convention on Consular Relations, every foreign national located in a nation that is a signatory to that treaty has a right to contact the consulate of his home country if he is charged with a serious crime and to receive assistance from his home country’s consulate.
At his trial, Medellín never raised this issue, so the prosecutors never afforded him his right to contact the Mexican consulate. The first time Medellín raised the issue was in federal court in what is called a habeas corpus challenge. Federal criminal cases can be complicated, and death penalty cases are notoriously long and complex.
The way our criminal justice system works, there are two parallel systems: the state systems of justice and the federal system of justice. State courts are the courts that typically try murder cases. Medellín’s case was tried in Texas state court, and his conviction and death sentence were affirmed by the Texas Court of Criminal Appeals—the highest criminal court in the state of Texas. But he never raised the issue of the Vienna Convention on Consular Relations until his federal habeas challenge—which was years after his criminal conviction in state court.
Habeas challenges are common, but in this case, after Medellín was convicted, the case also took a rather strange turn. The nation of Mexico sued the United States in the International Court of Justice, otherwise known as the World Court, the judicial arm of the United Nations. Mexico sued on behalf of Medellín and fifty other Mexican nationals who had committed murder in the United States and had been sentenced to death by the various state justice systems across the United States. Mexico argued that because those individuals had not been affirmatively told of their treaty right to contact the Mexican consulate, their murder convictions and death sentences must all be set aside.
Remarkably, the World Court agreed and issued an order to the United States to reopen the convictions of fifty-one murderers across the country. This was the first time in history that a foreign court had attempted to bind the U.S. justice system—much less to overturn settled criminal convictions. Medellín, in turn, argued that the U.S. justice system should be bound by the World Court decision. He argued, in effect, that he was legally entitled to a new trial.
Ordinarily, the rules of criminal trials are that defendants are required to affirmatively raise any legal defenses they might have. And the reason the system works this way is that if a criminal defendant raises a particular legal issue or legal defense, the court can appropriately address it right there and then. We don’t want criminal defendants playing games with the courts—trying the case to verdict, hoping to get acquitted, and, if they don’t get acquitted, raising the issue on appeal after the fact or in a federal habeas challenge. We don’t want them to subsequently raise issues that the trial judge never had an opportunity to address.
Medellín, in fact, had a lawyer representing him in his trial. But he never raised any claim under the Vienna Convention on Consular Relations during his state trial. And if he had, it would have been very easy to vindicate those rights. The trial judge could simply have said, “OK, let the defendant contact the Mexican consulate and receive whatever assistance the consulate is willing to provide.” It could have been resolved right there, on the spot, during trial. But Medellín’s lawyer never raised the claim.
Under ordinary U.S. criminal law, if you fail to raise a claim at trial, that claim is forfeited. And you can’t come back years later with a brand-new legal claim that you never raised in your own defense. But the World Court decided that the ordinary rules of American criminal law didn’t matter. It didn’t matter that Medellín and fifty other convicted murderers across the country had never raised their treaty claims in their state court trials. In the eyes of the World Court, the American judicial system was required to ignore its own law—to ignore our own rules—and to throw out the convictions on the basis of a claim that was never even raised at trial.
The World Court ruled for Mexico even though most countries on earth—including Mexico—don’t allow collateral attacks to convictions at all. In other words, in most other countries, if you fail to raise a claim at trial or on appeal, it’s game over. There is no habeas proceeding. The United States grants more procedural protections to foreign nationals in our courts than those foreign nations provide to American citizens, but the World Court decided that still wasn’t enough.
Medellín went before the U.S. federal courts and argued that, based on the World Court’s decision, his conviction should be overturned. The federal district court disagreed and so did the Fifth Circuit Court of Appeals. And so Medellín appealed the case to the U.S. Supreme Court.
I was the Texas SG at the time, and I ended up arguing the case not once, but twice, before the U.S. Supreme Court. The first time it went up on appeal was in 2005, and it precipitated a remarkable battle within the George W. Bush administration.
Remember the time. This was the beginning of President Bush’s second term. Alberto Gonzales had just been named attorney general, and Condoleezza Rice was now secretary of state. The Bush administration was pivoting, with its leading actors trying to distance themselves from the perception of being rogue cowboys. Indeed, Condi was in the midst of what some were calling the “we love the world tour,” traveling across Europe and being fêted abroad as the glamorous new secretary of state.
Gonzales and Rice disagreed on what to do in the case. Both had spent the f
irst term of President Bush’s administration in the White House; she as national security advisor and he as White House counsel. Both were deeply trusted and respected by President Bush. It was rare for the two to disagree. And yet here they did.
I’ll never forget the forty-five-minute conference call that Greg Abbott—at the time my boss and the attorney general of Texas—and I both had with Harriet Miers, who was then the White House counsel. Abbott and I argued strenuously that under no circumstances should the Bush administration side with this child rapist and convicted murderer. And, even more so, under no circumstances should the U.S. government cede our cherished national sovereignty to the World Court of the United Nations.
This should have been an easy call. As governor of Texas, George W. Bush had himself rejected similar claims from convicted murderers, and Abbott and I both argued vigorously to Miers that he should do the same now.
Miers listened, and the issue appeared to be headed for an Oval Office showdown: Condi versus Al, head to head. The Department of Justice, to its credit, argued that the United States should do the right thing—fight the World Court and resist any usurpation of U.S. sovereignty. But the State Department, looking to curry favor abroad, argued for capitulation—to grant the authority sought by the World Court of the United Nations.
But before the issue came to a head in front of President Bush, DOJ blinked. Al and Condi agreed upon a compromise.
I found out about it shortly thereafter, when U.S. SG Paul Clement called me on the phone. “Ted, are you sitting down?” he asked. That’s not an auspicious way to begin a conversation. “I have good news, and I have bad news,” Paul continued. “The good news is that the Department of Justice is going to participate in the case before the Supreme Court and is going to agree with Texas that the World Court does not have authority over the U.S. justice system.”