If President Trump Wants to Change the Constitution Which Article Should He Read First?

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2016

Trump vs. the Constitution: A Guide

It may exist true that Donald Trump has read the Constitution. But it's unclear if he understands it.

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In his speech communication at the Autonomous National Convention concluding week, Khizr Khan, a Muslim-American lawyer and father of a U.S. soldier killed in Iraq, waved a pocket copy of the Constitution in the air and challenged Donald Trump. Referencing the Republican's phone call to ban Muslims from entering the country—a policy that would've prevented Khan's heroic son from becoming an American—Khan posed a question to Trump: "Have you even read the United states of america Constitution? I volition gladly lend yous my copy. In this document, expect for the words 'liberty' and 'equal protection of the law.'"

Trump responded in a argument: "Mr. Khan, who has never met me, has no right to stand in forepart of millions of people and claim I accept never read the Constitution, which is false."

It may exist the case that Trump has read the Constitution. Only to get by his public positions, information technology remains a question whether he understands it. From early in his campaign, critics accept been consistently astonished by his seeming indifference to the Constitution, as he has launched attacks on the press, on mosques, and on other institutions explicitly protected past the Nib of Rights. Or consider Trump's private coming together with Republican members of Congress, when the candidate expressed his admiration for Article 12 of the Constitution, apparently unaware that there are only seven Articles. "He was simply listing out numbers," said Congressman Blake Farenthold (R-Texas), a Trump supporter. "I think he was confusing Articles and Amendments."

This isn't simply a technicality: The presidential oath of role demands that the president "preserve, protect and defend the Constitution of the United States."

How tin can he protect something that he doesn't seem to grasp, and whose underlying philosophy he seems outright hostile to? In the involvement of judging Trump'southward competence to follow through on the oath of function if he does become president, hither's a brusque guide to the Constitution and where Trump collides with it.

The First Amendment

Before long after the November 2015 terrorist attacks in Paris, Trump told Fox News that the U.South. government should close mosques where "some bad things are happening." As he put it, "Nobody wants to say this and nobody wants to shut down religious institutions or annihilation, only you know, you understand it. A lot of people understand it. We're going to have no choice. Some actually bad things are happening."

At its core, Trump'southward proposal would target a religious institution for sanction because of its members' adherence to certain behavior. It's a textbook example of the kind of activeness expressly prohibited by the Start Subpoena—which protects religious liberty and bans laws that would prohibit the "complimentary exercise" of religion. This is known as the Costless Practice Clause.

Trump could claim that he sought to shut down simply mosques that advocate what he calls "radical Islam" (although he fabricated no effort to provide bear witness of such advocacy). Fifty-fifty this modified proposal, however, would run afoul of not only the Gratis Exercise Clause but too the Free Spoken communication Clause of the Get-go Amendment, which allows us to stop speech that incites immediate violence but not broadly controversial oral communication that might inspire some future trigger-happy deed.

Trump has also suggested that as president, he would enact new restrictions on the First Amendment'southward guaranteed freedom of the press. "We're going to open up up those libel laws," Trump said in February. "Then when The New York Times writes a striking slice which is a full disgrace … we can sue them and win money instead of having no chance of winning because they're totally protected." For more 50 years, the Supreme Court has held that for a public figure to prove libel confronting a news outlet, they must show that the outlet acted with "'actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was faux or not." To seek to overturn this constitutional protection such that news organizations could exist sued for publishing a story that gets some pocket-size facts wrong but is not actually malicious would run reverse to our long-established understanding of the Starting time Amendment freedoms of speech and the press. In a ramble commonwealth, it is essential that the printing has broad freedom to investigate public officials then that voters have the information needed to hold them accountable.

The Eighth Subpoena

"What do you think about waterboarding?" It'southward the rhetorical question that Trump asked of an doting Ohio audience in June. He answered his own inquiry: "I like information technology a lot. I don't think it's tough enough." He seemed to yearn for the medieval torture and execution options bachelor to ISIS militants, saying incredulously: "So nosotros can't do waterboarding, but they can practice chopping off heads, drowning people in sealed cages? You lot accept to fight burn with burn."

Trump's personal constitution is deeply at odds with the restraints demanded by the U.S. Constitution.

Perhaps more troubling, in December, Trump brazenly expressed his want to seek to kill and torture not only terrorists, but their family members ("We're fighting a very politically correct state of war," he said, "and the other thing is with the terrorists: Yous take to take out their families."). That idea has been met with shock and horror from a bipartisan swath of lawmakers, military machine officials and former Cabinet members—and there's a basic constitutional reason why.

The Eighth Amendment prevents the apply of fell and unusual punishment, protecting people within the U.S., at a minimum, from punishments that involve torture and the intentional infliction of pain. Justice Antonin Scalia famously argued that torture to gather information is not unconstitutional because it is non "punishment" within the significant required by the clause. Nonetheless, Trump'due south discussions of waterboarding and intentional attacks on civilian family members of terrorists have the flavour of penalty-equally-vengeance, rather than torture intended to gather intelligence. If this is indeed their purpose, and if he means to employ them to the war on terror inside the Usa, then they are conspicuously unconstitutional. In fact, they would serve well as hypotheticals that constitutional law professors might apply to demonstrate how the ban on barbarous and unusual punishment might be violated. (The proposal to target terrorists' innocent civilian family members would also be a violation of the Fifth Amendment'southward requirement of "due process," because they take committed no crime and would have had no trial.)

The 14th Amendment

Donald Trump's statements nigh Muslims run up against so many clauses of the Constitution that it's hard to pick only 1. But the 14th Amendment is key here. This includes the Equal Protection Clause, which forbids the government from depriving individuals from "equal protection of the laws"—a protection that courts have ruled extends to all levels of regime in our federal system.

Trump'south suggested "total and complete shutdown of Muslims entering the U.S." clearly runs afoul of both. The policy would, in effect, deny the correct of Muslims who are U.South. citizens to exit the country, as they would presumably be banned from reentry once abroad.

Trump has attempted to walk the statement dorsum, claiming that while his ban focused on only those seeking to emigrate to the U.S., we had to generally be "vigilant" almost all Muslims entering the country. As he put it, this policy "[would] not apply to people living in the state, except we have to be vigilant." Equally a policy, "vigilance" targeted at all Muslims within the country's borders creates a presumption of guilt based solely on religious belief, a clear violation of the Gratis Exercise and Equal Protection Clauses—protections that extend to citizens and noncitizens alike.

At minimum, Trump'southward various iterations of a policy limiting travel and immigration for Muslims suggests heavy profiling based not just on religion but also on race and ethnicity.

Trump'due south proposed ban on foreign Muslims immigrating to the United States may also violate our Constitution. Despite the fact that clearing policy is set by the president and Congress, under the First Amendment'south Costless Exercise Clause and the 14th Subpoena's Equal Protection Clause (which is applied to the federal government through the Fifth Subpoena), any law based on counterinsurgency—hatred of a particular ethnic or religious grouping—is unconstitutional, and this certainly qualifies. The high court has held that immigration restrictions based on ideology do non necessarily violate the Costless Oral communication Clause, merely discrimination based on religion is different. Trump's proposal erroneously ascribes unsafe behavior to an unabridged religion. Trump's supporters might point to a 19th century Supreme Court determination upholding the exclusion of Chinese nationals from immigration, just the holding could well be reversed if Trump's proposed policy always made it to the loftier court. Even Trump's most recent immigration proposal, which scraps any reference to Muslims, focusing instead on "terrorist countries," could be ruled unconstitutional if information technology is actually a pretext to engage in discrimination confronting Muslims wishing to enter the United States.

Separation of Powers

In perhaps the well-nigh perfect tempest of Trump's hostility to constitutional values, in June, he declared U.S. District Judge Gonzalo Curiel unfit to preside over lawsuits against Trump University solely because of the judge'southward Mexican heritage. In Trump's view, this Indiana native who was built-in to parents from United mexican states could never fairly preside over a instance confronting Trump in light of Trump's proposal to build a wall on the U.S. edge with Mexico. This hostility became fifty-fifty more credible when Trump threatened the judge'due south tenure, should he win the presidency.

Trump's comments about Judge Curiel drew attention for suggesting ethnic prejudice is at work in his thinking. However, they besides suggest a fundamental misunderstanding about the role of the judicial branch in U.S. government. The judicial branch is non supposed to exist appreciative to personal interests of the president. In fact, the founders designed the judiciary to counter the ability of the presidency. This arrangement of constitutional checks and balances, James Madison wrote in the Federalist Papers, is "essential to the preservation of liberty." He emphasized the importance of an independent judiciary, quoting Montesquieu in Federalist 47: "In that location is no liberty, if the power of judging be not separated from the legislative and executive powers." Trump's threat to remove Gauge Curiel because of a personal vendetta indicates a clear disregard for the independence of the judiciary.

Currently, nosotros have many checks to protect an contained judiciary. An essential one is the requirement that the Senate confirm Supreme Court justices. Even so, at that place is reason to fear that Trump could undo our constitutionally designed independent judicial system without a care. Responding to Justice Ruth Bader Ginsburg's criticism of him, he tweeted out a threat to "swamp" the court with "real judges and real legal opinions," which many read as a statement of his intent to pack the courtroom with justices who would do his bidding instead of acting as independent stewards of justice.

To those of us who study the Constitution, this is a frightening prospect. Unbeknownst to many Americans, there is aught in our Constitution that requires nine Supreme Court justices. At the founding we had six, for most of American history nosotros've had nine, and currently we take viii. In a controversial move during his tenure in the White House, President Franklin Roosevelt once threatened to add justices until they—to use Trump'south term—"swamped" the court and issued rulings favorable to his view. FDR's threat, though controversial, was intended to preserve his New Deal policies, now widely recognized every bit constitutional, against a conservative Supreme Courtroom that was hostile to them. Trump'southward threat, however, appears intended to further his unconstitutional agenda. Of course, it is unclear what exactly Trump meant, merely his indifference to the constitutional values of the rule of law and an independent judiciary might only requite him the confidence to try to pack the high courtroom.

***

Information technology would be one thing if Trump merely displayed a lack of knowledge of the Constitution. Ignorance can be corrected. However, the trouble is non but that Trump is ignorant of the Constitution; it's that he doesn't care. His political philosophy, to the extent that he has one, is the demagoguery that the Founders designed the Constitution to protect u.s. against.

The Founders' fears of a threat to ramble democracy led them to blueprint a organisation to thwart potential demagogues, a organisation built upon three branches of government to check and balance one another'due south powers. But these checks are not fail-safe, and historically, even the strongest of constitutional regimes can plummet. Call up of the Roman Democracy, which also had a organisation of checks and balances but ultimately gave way to the dictatorship of the Caesars. A President Trump could try to pack the court, repeatedly seek to enact unconstitutional policy, and threaten the judiciary. Indeed, these are all actions he has threatened to carry out if he becomes president.

Trump has a dictator'south impulse to only make decisions without regard for his potential constitutional office or its limits. When Khizr Khan confronted Trump at the convention, he demanded that Trump recognize those limits when information technology comes to individual rights. Trump'southward impulsive response to attack not only Khan merely his wife reinforces the sense that Trump'due south personal constitution is securely at odds with the restraints demanded by the U.S. Constitution.

The prospect of shaking up our political system has excited Trump's supporters. Simply many of those aforementioned supporters—including Tea Partyers and traditional Republicans, whose party descended from the drafters of the 14th Amendment—purport to value the Constitution. They should wake upwards to the fact that the presidency that Trump has in mind will undermine the Constitution they claim to cherish.

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Source: https://www.politico.com/magazine/story/2016/08/2016-donald-trump-constitution-guide-unconstitutional-freedom-liberty-khan-214139

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