The America Donald Trump Would Make (Again)
While Americans never have, and probably never will, agree on most things, the Constitution is the one statement on which we all agree. It sets forth what “We the People” believe, and what it actually means to be an American. Every person who serves our Country must take an oath to support and defend the Constitution, and each person who becomes a new American must swear to bear true faith and allegiance to the Constitution. So the Constitution can tell you precisely what it means to be an American, and a good deal about what a Presidential candidate believes about America. I’ve interpreted the Constitution as a clerk for both liberal and conservative judges, including Chief Justice William Rehnquist. I’ve taught constitutional law, argued constitutional cases, served as special counsel to the President, and have always been inspired by the devotion that people of different faiths, customs, political beliefs, and backgrounds show to the Constitution. The one thing we Americans all have in common is our Constitution. So this is what I can tell about Donald Trump and the Constitution.
The first amendment guarantees that the government “shall make no law respecting religion.” This means what it says — you can’t have a law that is based on religion. America in fact was founded by people who had been persecuted for their religious beliefs and came here seeking relief from governments dictating what religion was acceptable. Donald Trump disagrees with this amendment. He advocates barring people from the United States because of their religion. On December 7, 2015, he called for a “total and complete shutdown of Muslims entering the United States.” He further allowed that he might require the registration of all Muslims in a database and mandate special identification of Muslims.
The first amendment also guarantees that the Government can make no laws “abridging the freedom of speech or of the press.” Donald Trump said on February 26, 2016, that he plans to “loosen the libel laws” in the United States so that he can sue journalists who write unflattering articles. “We’re going to open up those libel laws. So when the New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money.”
The first amendment further guarantees “the right of the people peaceably to assemble.” At a public forum on November 22, 2015, supporters of Donald Trump punched and kicked a protestor who had been chanting anti-Trump slogans. Trump stated “Maybe he should have been roughed up. It was disgusting what he was doing.” After a similar incident in which a person at his rally was arrested for punching a peaceful protestor, Donald Trump said he would look into paying the attacker’s legal fees because the man “obviously loves the country.”
That was just the first amendment.
The second amendment guarantees the right of the people to keep and bear arms as necessary to a well-regulated Militia. Although Donald Trump’s views have shifted over time, in 1999 he stated on Larry King Live, “Look, there’s nothing I like better than nobody has them [guns], but that’s not going to happen, Larry.” He has now taken the opposite position, that everyone should be armed, even if it has no purpose or necessity for a well-regulated Militia. Neither view is consistent with the second amendment.
The third amendment forbids the government from requiring Americans to let soldiers take up residence in their homes. This one hasn’t come up.
The fourth amendment guarantees the right of people to be secure in their houses and forbids searches without probable cause. Donald Trump said on November 19, 2015, that he would permit the use of warrantless searches despite the Fourth Amendment. “We’re going to have to do things we never did before. And certain things will be done that we never thought would happen in this country in terms of information and learning about the enemy. And so we’re going to have to do certain things that were frankly unthinkable a year ago.” The fourth amendment’s provisions do not include allowing for violation of the fourth amendment.
The fifth amendment guarantees that no person shall be denied life, liberty, or property without due process of law. Donald Trump on February 10, 2016 stated that people accused of being in the United States illegally “may or may not” be entitled to due process. When his interviewer, Bill O’Reilly, stated “I’m telling you, all settled law says once you’re here, you are entitled to our constitutional protection, every single case,” Donald Trump responded “I disagree.” So, that is clear; he also disagrees with the fifth amendment.
The sixth amendment was written to serve as a bulwark against government leaders locking up their political adversaries, among other things. It requires that in all criminal cases there must be a public trial, an impartial jury, and numerous other protections to ensure a fair trial. On June 3, 2016, Donald Trump stated that his likely opponent for President, Secretary Hillary Clinton, “has to go to jail” even though she has not been accused of a crime, let alone subject to any criminal proceeding. He has urged dispensing with the trial process in other cases, as well. With respect to a U.S. Sergeant, Bowe Bergdahl who was accused of desertion, Donald Trump said that the U.S. military should forego a court martial and that he “should have been executed” and that someone should “throw him out of a plane” without a parachute.
The seventh amendment guarantees the right of a litigant seeking over $20 in federal court to a trial by jury. Donald Trump agrees with this amendment.
The eighth amendment prohibits cruel and unusual punishment. Donald Trump has endorsed the use of torture and killing the loved ones of criminals as a way to stop terrorism. On March 22, 2016, he stated that “Look, I think we have to change our law on the waterboarding thing” and that he would “go further” than waterboarding. He said with respect to one suspect, “he may be talking but he’ll talk faster with the torture.” And he proposed that as Commander-in-Chief he would discourage terrorists by directing people to kill children and families who have not committed crimes or engaged in terrorism. “When you get these terrorists, you have to take out their families. When they say they don’t care about their lives, you have to take out their families.” This has been cruel and unusual punishment since even before the United States was established.
The ninth through twelfth amendments concern the allocation of power among the federal government, the states, and the people. These are actually some of the most important provisions of the Constitution. Donald Trump has not addressed any of them.
The thirteenth amendment forbids slavery or indentured servitude. This issue has not come up with respect to indentured servitude in the U.S. However, Donald Trump has refused to respond to news reports and video that he did not oppose or condemn the employment of indentured servants building a new Trump golf course in Dubai.
The fourteenth amendment states that all persons born in the United States are citizens of the United States. Donald Trump announced that he would repeal this provision. “Mexico and almost every other country anywhere in the world doesn’t have that. We’re the only ones dumb enough, stupid enough to have it.”
The fourteenth amendment also protects the rights of all persons, including non-citizens, from being deprived by a State of life, liberty, or property without due process or being denied equal protection of the law. See the first, fifth, and sixth amendments.
The fifteenth amendment forbids denying a citizen any right based on race or color. Donald Trump has not disagreed with this. He has however condemned groups as “disgraceful” when they complain about states applying lethal force against black citizens at much higher rates than white citizens.
Donald Trump does not seem to quarrel with the sixteenth, seventeenth, or eighteenth amendments. The sixteenth amendment permits the government to lay and collect taxes. The seventeenth concerns Senate elections. The eighteenth amendment regarding sale of alcohol was cancelled by the twenty-first amendment.
The nineteenth amendment established the right of women to vote. Donald Trump does not dispute that authority, but on May 2, 2016, he complained that his likely opponent, Hillary Clinton, was “playing the woman card. And if she didn’t play the woman card, she would have no chance whatsoever of winning.” His view appears to be that he would be elected President if the nineteenth amendment were not ratified.
The remaining eight amendments have not been raised or challenged by Donald Trump. But there are many other portions of the Constitution that have been. For example, Article VII requires that the United States stand behind its debts, including the debts incurred by states prior to the United States being formed. On May 6, 2016, Donald Trump stated that he would avoid repayment of U.S. debts by convincing creditors to accept less. Article III establishes an independent judiciary that cannot be removed from office except by impeachment for high crimes and misdemeanors. Donald Trump stated on June 6, 2016 that a judge who ruled against him on pre-trial motions was a disgrace, and that other federal judges “ought to look into” that judge.
I won’t belabor the point further.
The conventional wisdom is that Donald Trump is offering a new set of “Trumpian” ideas that defy any political category. But what Donald Trump proposes is not new at all, and it is easy to define. What he proposes is largely a return to a time before our Constitution or America existed. “We the People” fought a revolution to create a new government under a Constitution precisely to stop that from happening again. We knew that people in power would be tempted to go back to the old ways, and that people would sometimes be tempted to let them. And so we all agreed on a set of rules that would save us from our worst instincts.
Trump hasn’t been running against the establishment. He’s not even running against Hillary Clinton. He’s running against the Constitution. And that means one thing. He’s running against the one thing that has always made America great.
Jeff Bleich is a former United States Ambassador, Special Counsel to the President, and President of the State Bar of California.
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