Trump vs. the Constitution: A Guide
In his speech at the Democratic National Convention last 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 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 Constitution? I will gladly lend you my copy. In this document, look for the words ‘liberty’ and ‘equal protection of the law.’”
Trump responded in a statement: “Mr. Khan, who has never met me, has no right to stand in front of millions of people and claim I have never read the Constitution, which is false.”
It may be the case that Trump has read the Constitution. But to go by his public positions, it remains a question whether he understands it. From early in his campaign, critics have 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 by the Bill of Rights. Or consider Trump’s private meeting 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 just listing out numbers,” said Congressman Blake Farenthold (R-Texas), a Trump supporter. “I think he was confusing Articles and Amendments.”
This isn’t just a technicality: The presidential oath of office demands that the president “preserve, protect and defend the Constitution of the United States.”
How can he protect something that he doesn’t seem to grasp, and whose underlying philosophy he seems outright hostile to? In the interest of judging Trump’s competence to follow through on the oath of office if he does become president, here’s a short guide to the Constitution and where Trump collides with it.
The First Amendment
Shortly after the November 2015 terrorist attacks in Paris, Trump told Fox News that the U.S. 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 anything, but you know, you understand it. A lot of people understand it. We’re going to have no choice. Some really bad things are happening.”
At its core, Trump’s proposal would target a religious institution for sanction because of its members’ adherence to certain beliefs. It’s a textbook example of the kind of action expressly prohibited by the First Amendment—which protects religious liberty and bans laws that would prohibit the “free exercise” of religion. This is known as the Free Exercise Clause.
Trump could claim that he sought to shut down only mosques that advocate what he calls “radical Islam” (although he made no effort to provide evidence of such advocacy). Even this modified proposal, however, would run afoul of not only the Free Exercise Clause but also the Free Speech Clause of the First Amendment, which allows us to stop speech that incites immediate violence but not broadly controversial speech that might inspire some future violent act.
Trump has also suggested that as president, he would enact new restrictions on the First Amendment’s guaranteed freedom of the press. “We're going to open up those libel laws,” Trump said in February. “So when The New York Times writes a hit piece which is a total disgrace … we can sue them and win money instead of having no chance of winning because they're totally protected.” For more than 50 years, the Supreme Court has held that for a public figure to prove libel against 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 false or not.” To seek to overturn this constitutional protection such that news organizations could be sued for publishing a story that gets some minor facts wrong but is not actually malicious would run contrary to our long-established understanding of the First Amendment freedoms of speech and the press. In a constitutional democracy, it is essential that the press has broad freedom to investigate public officials so that voters have the information needed to hold them accountable.
The Eighth Amendment
“What do you think about waterboarding?” It’s the rhetorical question that Trump asked of an adoring Ohio audience in June. He answered his own inquiry: “I like it a lot. I don't think it's tough enough.” He seemed to yearn for the medieval torture and execution options available to ISIS militants, saying incredulously: “So we can't do waterboarding, but they can do chopping off heads, drowning people in sealed cages? You have to fight fire with fire.”
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 desire to seek to kill and torture not only terrorists, but their family members (“We're fighting a very politically correct war,” he said, “and the other thing is with the terrorists: You have to take out their families.”). That idea has been met with shock and horror from a bipartisan swath of lawmakers, military officials and former Cabinet members—and there’s a basic constitutional reason why.
The Eighth Amendment prevents the use of cruel 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 not “punishment” within the meaning required by the clause. However, Trump’s discussions of waterboarding and intentional attacks on civilian family members of terrorists have the flavor of punishment-as-vengeance, rather than torture intended to gather intelligence. If this is indeed their purpose, and if he means to apply them to the war on terror within the United States, then they are clearly unconstitutional. In fact, they would serve well as hypotheticals that constitutional law professors might use to demonstrate how the ban on cruel and unusual punishment might be violated. (The proposal to target terrorists’ innocent civilian family members would also be a violation of the Fifth Amendment’s requirement of “due process,” because they have committed no crime and would have had no trial.)
The 14th Amendment
Donald Trump’s statements about Muslims run up against so many clauses of the Constitution that it’s hard to pick just one. 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 government in our federal system.
Trump’s suggested “total and complete shutdown of Muslims entering the U.S.” clearly runs afoul of both. The policy would, in effect, deny the right of Muslims who are U.S. citizens to leave the country, as they would presumably be banned from reentry once abroad.
Trump has attempted to walk the statement back, claiming that while his ban focused on only those seeking to immigrate to the U.S., we had to generally be “vigilant” about all Muslims entering the country. As he put it, this policy “[would] not apply to people living in the country, except we have to be vigilant.” As a policy, "vigilance" targeted at all Muslims inside the country’s borders creates a presumption of guilt based solely on religious belief, a clear violation of the Free Exercise and Equal Protection Clauses—protections that extend to citizens and noncitizens alike.
At minimum, Trump’s 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’s proposed ban on foreign Muslims immigrating to the United States may also violate our Constitution. Despite the fact that immigration policy is set by the president and Congress, under the First Amendment’s Free Exercise Clause and the 14th Amendment’s Equal Protection Clause (which is applied to the federal government through the Fifth Amendment), any law based on animus—hatred of a particular ethnic or religious group—is unconstitutional, and this certainly qualifies. The high court has held that immigration restrictions based on ideology do not necessarily violate the Free Speech Clause, but discrimination based on religion is different. Trump’s proposal erroneously ascribes dangerous beliefs to an entire religion. Trump’s supporters might point to a 19th century Supreme Court decision upholding the exclusion of Chinese nationals from immigration, but the holding could well be reversed if Trump’s proposed policy ever made it to the high court. Even Trump’s most recent immigration proposal, which scraps any reference to Muslims, focusing instead on “terrorist countries,” could be ruled unconstitutional if it is actually a pretext to engage in discrimination against Muslims wishing to enter the United States.
Separation of Powers
In perhaps the most perfect storm 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’s Mexican heritage. In Trump’s view, this Indiana native who was born to parents from Mexico could never fairly preside over a case against Trump in light of Trump’s proposal to build a wall on the U.S. border with Mexico. This hostility became even more apparent when Trump threatened the judge’s 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 also suggest a fundamental misunderstanding about the role of the judicial branch in U.S. government. The judicial branch is not supposed to be beholden to personal interests of the president. In fact, the founders designed the judiciary to counter the power of the presidency. This system 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: “There is no liberty, if the power of judging be not separated from the legislative and executive powers.” Trump’s threat to remove Judge Curiel because of a personal vendetta indicates a clear disregard for the independence of the judiciary.
Currently, we have many checks to protect an independent judiciary. An essential one is the requirement that the Senate confirm Supreme Court justices. Even so, there 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 court 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 nothing in our Constitution that requires nine Supreme Court justices. At the founding we had six, for most of American history we’ve had nine, and currently we have eight. In a controversial move during his tenure in the White House, President Franklin Roosevelt once threatened to add justices until they—to use Trump’s 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 as constitutional, against a conservative Supreme Court that was hostile to them. Trump’s threat, however, appears intended to further his unconstitutional agenda. Of course, it is unclear what exactly Trump meant, but his indifference to the constitutional values of the rule of law and an independent judiciary might just give him the confidence to try to pack the high court.
It would be one thing if Trump merely displayed a lack of knowledge of the Constitution. Ignorance can be corrected. However, the problem is not just 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 us against.
The Founders’ fears of a threat to constitutional democracy led them to design a system to thwart potential demagogues, a system built upon three branches of government to check and balance one another’s powers. But these checks are not fail-safe, and historically, even the strongest of constitutional regimes can collapse. Think of the Roman Republic, which also had a system 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’s impulse to simply make decisions without regard for his potential constitutional role or its limits. When Khizr Khan confronted Trump at the convention, he demanded that Trump recognize those limits when it comes to individual rights. Trump’s impulsive response to attack not only Khan but his wife reinforces the sense that Trump’s personal constitution is deeply at odds with the restraints demanded by the U.S. Constitution.
The prospect of shaking up our political system has excited Trump’s supporters. But many of those same 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 up to the fact that the presidency that Trump has in mind will undermine the Constitution they claim to cherish.