Prospects for Constitutionalism

What are the prospects for constitutionalism and the rule of law under President Donald Trump?  In my estimation, quite good.  Unlike some of my libertarian (or classical liberal) friends, I didn’t quake at the possibility of Trump’s election (as I explained here).  His shortlist of potential Supreme Court candidates was outstanding, and his cabinet picks to date have been first rate.  Of course, assessing the success or failure of Trump’s presidency will rest on the actions he takes and the policies he implements after he is sworn in on January 20, 2017.  History’s judgment, however, will ultimately be rendered by comparisons with other presidents.  And let’s be honest: For nearly a century, Trump’s predecessors in the White House—of both parties—have set a pretty low bar in terms of expectations.

With respect to constitutionalism, we are not starting with a clean slate.  “Preserving,” “protecting,” and “defending” the Constitution—as the presidential oath requires—will require quite a bit of excavation; layers of neglect and decades of erroneous interpretations obscure its original meaning.   Three significant developments have transformed the limited federal government envisioned by the Framers into the Leviathan we have today: first, a nearly unlimited expansion of congressional power under New Deal precedents interpreting the Commerce Clause, which now authorize the regulation of wholly intrastate activity; second, the tremendous increase in the number and power of administrative agencies, which exert authority in a manner not contemplated by—and, indeed contrary to the text and structure of—the Constitution; and, third, a legal culture that condones the usurpation of lawmaking by activist judges, allowing five unelected justices on the Supreme Court to impose their policy preferences on the entire nation.

Trump is well-suited to address all three of these problems.  He is not a captive of the status quo. And in the area of constitutional law, he is willing to challenge decisions that he considers unsound.  As much as I admired (and miss) Justice Scalia, he was not infallible.  Critics from Left and Right attacked Trump for stating recently that he favored punishment for those who burn the American flag, but few recall that constitutional protection for flag burning didn’t exist before Texas v. Johnson in 1989 [1], which was a 5-4 decision written by arch-liberal Justice William J. Brennan less than 30 years ago, over the powerful dissent of Chief Justice William Rehnquist.  Scalia voted with the majority in Texas v. Johnson, and also in the later 5-4 decision in United States v. Eichman [2], but that does not mean those cases were correctly decided or that they shouldn’t be reconsidered and even overturned.

Trump’s position is hardly frivolous.  In fact, Trump’s objection to Texas v. Johnson is a laudable—even courageous—defense of principle.  Should we not be sympathetic to the protection of our national symbols?  Prior to Texas v. Johnson, 48 states and the federal government had laws prohibiting desecration of the flag.  The decision in Texas v. Johnson was controversial enough to prompt a serious initiative to amend the Constitution to protect the flag.  A proposed amendment was approved many times by the House of Representatives by the required two-thirds majority, and in the 109th Congress failed to achieve super-majority approval in the Senate by a single vote.   Badly-split Supreme Court decisions are not immutable, and Trump was completely within his rights to criticize the result and advocate reversal.

My point is that Trump’s Supreme Court appointments and the litigation positions of his Department of Justice and Solicitor General may be more aggressive than those of prior Republican presidents, which will be necessary to reverse the seriously misguided course of constitutional law.  As originalist legal scholars John McGinnis and Mike Ramsey have noted, one of Scalia’s few shortcomings was the extent of his devotion to precedent.  Stare decisis is not equivalent to constitutional text, and should not stand in the way of fidelity to the Constitution.  If a prior Supreme Court decision was incorrectly decided—as the fateful New Deal precedent Wickard v. Filburn [3] arguably was—future courts should feel free to reach a contrary result, and not blindly follow flawed precedents, as Scalia seemed to do by joining the majority opinion in Gonzales v. Raich [4].  Narrowing the scope of the Commerce Clause is essential to rein in the overreaching federal government.

Trump’s iconoclastic approach shows that he is unlikely to be hidebound when it comes to Supreme Court precedents.  With some fresh-thinking appointments to the Supreme Court, and Attorney General Jeff Sessions providing sage counsel, President Trump could steer constitutional jurisprudence back on course.

Regarding the growth of the modern administrative state, the appointment of Justice Scalia’s successor presents a great opportunity to change directions.  Scalia was an expert in—and to be honest, a devotee of—administrative law, and an enthusiastic supporter of the Chevron doctrine [5].  (In fact, in Auer v. Robbins [6], Scalia extended Chevron to include judicial deference to an agency’s interpretation of its own regulations.)  Chevron empowers administrative agencies by limiting judicial review of administrative agency action.  Only by limiting or overruling Chevron can the Supreme Court restore the separation of powers set forth in the Constitution. Justice Clarence Thomas has boldly attacked the doctrinal foundations of the modern administrative state on originalist grounds, and with a sympathetic majority Thomas’ approach could dramatically alter the landscape of administrative law.

My final point in this brief summary concerns judicial activism, the most glaring modern example of which is Roe v. Wade [7], which has been a stain on constitutional jurisprudence for over 40 years.   The Constitution is silent on the subject of abortion.  Divining a “right” to sexual autonomy or privacy from a document that does not even remotely address the topic is the quintessential act of judicial legislation—an unprincipled usurpation of policymaking entrusted to the democratically-accountable branches of government.  As long as Roe v. Wade remains on the books, it will provide succor to judicial activism in other areas.  Constitutionalism requires that judges—and especially Supreme Court justices—hew to the text and original understanding of the Constitution.  Judicial activism is an insult to the rule of law.

Trump stated during the campaign that he was not only pro-life, and committed to appointing pro-life justices to the Supreme Court; he vowed further to nominate only justices willing to overturn Roe v. Wade!  At the final presidential debate, Trump treated reversal of Roe v. Wade as a fait accompli should he be elected, and insisted that the question of abortion should be decided by the individual states.  This was a remarkable display of principle—rare for both its boldness and its candor.  I have never seen a major presidential candidate take such as unflinching position on the subject of constitutional decision-making. If Trump fulfills this vow, he will deal a stunning setback to the forces of judicial activism, and alter the dynamics of the Court for decades to come.

Obviously no one can predict, in advance, how a president-elect’s administration will unfold.  But based on Trump’s formal statements and positions (as opposed to random off-the-cuff remarks), I am very optimistic that he will restore constitutionalism and revive the rule of law.  Trump’s critics—and there are many—are not as sanguine as I am. Leaving aside the hysterics of resolute NeverTrumpers, I acknowledge that good faith reservations are possible, in light of Trump’s sometimes intemperate Twitter outbursts and unconventional policy prescriptions.  In many cases, I view such pronouncements as mere campaign rhetoric—the political equivalent of puffery.  Trump is, after all, a disrupter, which by definition requires a degree of disturbance and even disorder.  Trump has also been condemned as a demagogue for appealing to Americans’ self-interest.  Populism is not necessarily a threat to constitutionalism, and if channeled appropriately (in the form of patriotism or civic pride, for instance), it buttresses our collective sense of national identity.  Ronald Reagan eloquently spoke of the importance of pride in American exceptionalism.

In the course of many unscripted speeches made during a year of non-stop campaigning, non-lawyer Trump periodically made comments that critics pounced on as “proof” of his “ignorance” of or “disrespect” for the Constitution.  One frequently-cited example is Trump’s supposed “attack on the freedom of the press.”  This consists of Trump’s fierce (and, in my opinion, justified) criticism of the media for its liberal bias, and suggestion during the campaign that libel laws should be strengthened to hold the press responsible for knowingly publishing false statements.  Trump was not attacking the First Amendment so much as he was questioning the sequela of the Supreme Court’s 1964 decision in New York Times v. Sullivan [8], an opinion written at the peak of the Warren Court, authored (as with Texas v. Johnson) by  the notorious activist Justice William Brennan.  No, I’m not suggesting that New York Times v. Sullivan should be overruled, but if we are going to reverse the tide of errant constitutional decision-making, we have to be able to have a conversation about the wisdom and correctness of certain Supreme Court precedents.

Trump is unwilling to treat all Supreme Court decisions as Holy Writ, and neither should we. Constitutionalism means fidelity to the Constitution, not the status quo.

[1] 491 U.S. 397 (1989).

[2] 496 U.S. (1990).

[3] 317 U.S. 111 (1942).

[4] 545 U.S. 1 (2005).

[5] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[6] 519 U.S. 452 (1997).

[7] 410 U.S. 113 (1973).

[8] 376 U.S. 254 (1964).

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on December 21, 2016 at 10:35:01 am

" Stare decisis is not equivalent to constitutional text, and should not stand in the way of fidelity to the Constitution."

Indeed! Moreover, it both creates and nurtures the "clerical" disposition so prevalent amongst the Legal profession and the Academy. That clerk who is best able to discover all the previous rules / decisions in a now obscure(d?) text and, further, can then *divine* not only its initial meaning but also a "revised" contemporary meaning will prevail.

We, as citizens, have allowed the clerks, the Radar O'Reilly's, of the world to win. OK, Radar could supply us with some of the things we needed to cover wounds - but it took a different skill set, a different breed of soldier to carry the battle!

(Disclosure: I always hated M*A*S*H*).

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Image of gabe
on December 21, 2016 at 21:17:43 pm

I agree with most of what you said. I am cautiously optimistic about constitutionalism under Trump. That said, I don’t get the feeling that he personally knows a lot about the Constitution, nor that he feels it’s really important not to violate it. Things like his talk about “opening up” the libel laws, or his talk of eminent domain, or torture and killing the innocent family members of terrorists. Look, I disagree with the mainstream media as much as anyone, but that doesn’t mean we should roll back the First Amendment. Call them out and shame them publicly, but the courts are not to be used for this. These scare me, and are potentially dangerous, I just hope that he will listen to his advisors and he picks good people who will advise him not to do these bad things and that he listens to them. I think AG Sessions can do that, if Trump listens to him.

I agree with you as to what caused the Leviathan (commerce clause, administrative agencies, and activist policy imposing judges). I also agree that Trump’s list of potential Supreme Court judges is really good (although I would add a few names to the list like AZ Justice Clint Block, or even Randy Barnett. Justice Barnett, I like that sound of that.

I don’t believe Justice Scalia is infallible (his worst decision was in Gonzales v. Raich, endorsing the most expansive commerce clause interpretation, but I also think he was wrong in lawrence v. texas), but usually I agreed with Scalia (although not as much as Justice Thomas). I agree with you later, that his biggest problem was in respecting stare decisis rather than original meaning more often then he should have. He totally should have tried to overturn Wickard v. Filburn in Raich.

But I disagree with you as to Texas v. Johnson. I think it’s a really important case. Because it draws a line in the sand. If we allow people to do THAT, then surely these lesser acts of offensive speech are OK. It’s very important to have precedent like that which makes it very clear where the line is. I would be OK with a constitutional amendment explicitly excepting burning the flag if that’s what you want, but we need precedent that makes it clear even the most offensive things said cannot be prohibited.

I 100% agree with you on the administrative state.

The Constitution does not explicitly mention abortion, but it does protect the right to liberty in the Fifth Amendment (and I would argue in the 9th). You can’t just ignore that language, and the argument is that abortion (assuming the unborn baby is not a “person”), is a part of the liberty of the mother. You can attack this argument in saying “but the unborn baby really is a person,” but just ignoring the argument and saying that abortion isn’t mentioned just dodges the real questions. I don’t agree with Roe v. Wade, but that doesn’t mean there are not arguments there that have to be confronted head on.

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Image of Devin Watkins
Devin Watkins
on December 22, 2016 at 02:50:11 am

[…] let’s return to Trump’s SCOTUS picks. The greatest impediments to restoring constitutional government in the United States are the Supreme Court’s extravagant […]

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Image of The Trump Court: SCOTUS Could Stand Some Disruption - American Greatness
The Trump Court: SCOTUS Could Stand Some Disruption - American Greatness
on December 22, 2016 at 10:17:18 am

"We, as citizens, have allowed the clerks, the Radar O’Reilly’s, of the world to win." - Despite my sophomoric appreciation for the juvenile humor of M*A*S*H, I do agree with you on this point Mr. Gabe.

Clerks of every branch, of course. How much of Congress's willingness to delegate to the clerks is due to their need to perpetually raise money and advance campaign? Clerks provide the leadership of every branch with that "plausible deniability" in which they so richly delight. IF only RICO, could also be properly applied to government.

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Image of Paul Binotto
Paul Binotto
on December 22, 2016 at 19:23:19 pm

Originalism does not support social conservative agenda

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Image of Jon Roland
Jon Roland
on December 23, 2016 at 13:10:52 pm

Yep, but it doesn't support Progressive social agenda either. Indeed, it may be fairly argued that if anything the Constitution implicitly DENIES the Progressive agenda.

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Image of gabe
on January 03, 2017 at 16:08:35 pm

[…] Incredibly, libertarian legal scholars are urging President-elect Trump to appoint an adherent of this fanciful theory to replace Justice Antonin Scalia on the U.S. Supreme […]

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Image of Libertarian Judicial Activism Isn’t What the Courts Need - American Greatness
Libertarian Judicial Activism Isn’t What the Courts Need - American Greatness
on January 09, 2017 at 00:15:54 am

I agree with most of the article as well regards President Elect Trump. I am not an attorney, but I am an interested, and engaged citizen. Judicial activism has always nauseated me. I have not been thrilled with the Supreme Court over the last generation, even at the best of times. While Justice Scalia has been among the recent best Justices, you are correct to observe his devotion to stare decisis. Even at the best of times he could have been better. Heller was a landmark decision, but even then, he waffled and watered it down well below the mark of originalist thought. Clearly, the founders saw the right to keep and bear ams as a national imperative, not to be bound by state and local regulation. Though the official duties of the militia has been subsumed by a standing army, and The National Guard, their clear intent was that the militia be the fourth check on government over-reach.

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Image of David Hammack
David Hammack
on August 11, 2017 at 17:33:12 pm

[…] Incredibly, libertarian legal scholars are urging President-elect Trump to appoint an adherent of this fanciful theory to replace Justice Antonin Scalia on the U.S. Supreme […]

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Image of Libertarian Judicial Activism Isn’t What the Courts Need | Misrule of Law
Libertarian Judicial Activism Isn’t What the Courts Need | Misrule of Law

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.