It is a rare occurrence that an essay in The Harvard Law Review can cause political controversy. But Ted Cruz, the junior senator from Texas and a Harvard Law Graduate himself, seems to have managed it. The essay in question is entitled “Limits on the Treaty Power” which explores the possible use of international treaties by an unscrupulous federal government to acquire power for itself and to take away power from the states.
The essay has lots of citations and footnotes, particularly in reference to a case before the Supreme Court called Bond v. the United States. Carol Anne Bond is a woman who attempted to poison a love rival by smearing a chemical on a door knob. The attack failed, but Bond is now serving a six year stretch for violating an anti chemical weapons treaty signed by the United States in the 1990s. The Supreme Court is to decide whether that conviction was constitutional. Cruz would like the court to place limits on the use of treaties to supersede state law.
This somewhat esoteric legal argument has incited The Daily Beast to suggest that Cruz is using a “dog whistle” to influence the conspiracy theory addled far right in a January 11, 2014 essay. It is one thing, the online magazine states, for someone like Cruz to tell people that the United Nations is threatening to take away peoples’ guns or enact some kind of climate change tax on the Rush Limbaugh Show or in a conservative magazine. It is incredibly sneaky of the senator to suggest that treaties could be used to violate states rights in the pages of a staid, establishment law journal.
Nick Rosenkranz, writing in The Volkh Conspiracy, has a more measured reaction, marveling how unusual it is for a sitting senator to write scholarly essays and doubly unusual to write one calling for limits on his own power.