Trump, Clinton and Johnson, constitutionalists

One of the comforts of middle age (other than the ability to ignore popular culture) is the realization that in a more-than-one-sided debate, it is possible for all sides to be wrong.

One example is the constitutional views of The Donald, Hillary! and Gary “Feel the” Johnson. Let’s start with the former, and Kevin Daley:

Presumptive Republican presidential nominee Donald Trump told Leslie Stahl on “60 Minutes” that his ban on immigration from countries with high instances of terror is more important than any constitutional issues the policy may raise.

Stahl asked Trump whether his initial proposal to restrict Muslim immigrants ran afoul of the Constitution’s First and Fourteenth Amendments. Trump countered that constitutional concerns could be allayed by banning immigration from specific locales, as opposed to pursuing a blanket ban on Muslims. He then explained that the Constitution might take a back seat to his policy priorities.

“So you call it territories. OK? We’re going to do territories. We’re going to not let people come in from Syria that nobody knows who they are,” Trump said. “The Constitution, there’s nothing like it,” he continued. “But it doesn’t necessarily give us the right to commit suicide, as a country, OK?”

Comparing the Constitution to a suicide pact has an extensive history in liberal jurisprudence. Dissenting in Terminiello v. Chicago in 1949, U.S. Supreme Court Justice Robert Jackson warned against approaching the Constitution as a suicide pact whose provisions could never be violated.

“The choice is not between order and liberty,” he wrote. “It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Justice Arthur Goldberg, one of the most liberal jurists in the history of the Supreme Court, invoked the phrase in 1963, writing the Court’s opinion in Kennedy v. Mendoza-Martinez. “The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact,” his opinion read.

Judge Richard Posner of the Court of Appeals for the Seventh Circuit, who recently apologized for suggesting that federal judges need not study the Constitution, published a book in 2006 called Not a Suicide Pact: The Constitution in a Time of National Emergency.

Trump recently ran into trouble for defending articles of the Constitution that don’t exist. At a meeting with House Republicans, Trump was asked a question about Article I powers, or powers belonging to Congress. Trump reportedly responded by saying “I want to protect Article I, Article II, Article XII, go down the list.”

There is no Article XII to the Constitution.

“What we’re left with is a Faustian choice between malfeasance and very callous disregard for details,” South Carolina Rep. Mark Sanford said after the meeting.

It is increasingly obvious that Trump, in the highly unlikely event he is elected president, thinks he’s going to rule as an authoritarian, unburdened by little things like laws and the Constitution. Among other things, this should make his supporters lerry of any claims that Trump will appoint better Supreme Court justices than Hillary. We already know that she will appoint terrible anti-constitutional justices, but he will too, because Trump believes in his own self over anyone and anything else. (And Trump appears to not grasp that Supreme Court justices must be confirmed by the Senate.)

The other side of Sanford’s Faustian choice is reported by Tim Hains:

Hillary Clinton explains her vision of “reasonable” gun control laws to ‘Fox News Channel’ host Chris Wallace.

CHRIS WALLACE, FNC: At a fund-raiser last year you said this, “The Supreme Court is wrong on the Second Amendment.” Now, in the 2008 Heller case, the court said there’s a constitutional individual right to bear arms.

What’s wrong with that?

HILLARY CLINTON: Well, I think what the court said about there being an individual right is in line with constitutional thinking. And I said in the convention, I’m not looking to repeal the second amendment. I’m not looking to take people’s guns away, but I am looking for more support for the reasonable efforts that need to be undertaken to keep guns out of the wrong hands.

WALLACE: And the Second Amendment includes an individual right to bear arms.

CLINTON: Yes, but that right like every other of our rights, our First Amendment rights, every right that we have is open to and even subject to reasonable regulations.

Interesting view. So our rights against unreasonable search and seizure (Fourth Amendment), self-incrimination (Fifth), cruel and unusual punishment (Eighth), for a fair trial (Sixth) and due process and equal protection under the law (14th), and for non-white (15th) non-males (19th) to vote are “subject to reasonable regulations”? Perhaps Hillary thinks slavery (banned by the 13th Amendment) is OK if it’s reasonably regulated.

WALLACE: I just want to pursue this a bit. Heller, Justice Scalia, he said that the right to bear arms is reasonably limited. He let the door open to regulation. If you’re elected president, you’re going to appoint the Ninth Supreme Court justice.

CLINTON: Um-hmm.

WALLACE: Are you saying you do not want to see the Heller decision, the individual right to bear arms overturned?

CLINTON: No, I don’t, but here’s what I do want. And I want to be very clear about this: I want the Congress to step up and do its job. I want to get out of the horrible cycle we’re in, where we go and mourn dozens, hundreds, thousands of people killed by gun violence.

Everybody says, oh, let’s pray, let’s send our hearts and our feelings, and then nothing happens. We’re better than this. The gun lobby intimidates elected officials. The vast majority of Americans, including gun owners, support the kind of common-sense reforms that I’m proposing.

The gun lobby “intimidates elected officials” because they represent millions of Americans who obey the law more often than the Clintons and respect constitutional rights more than Hillary does. You cannot call yourself a supporter of the Constitution if your plan is to abrogate constitutional rights through regulation and taxation, whether or not that’s legal.

Now that we’ve determined that neither The Donald nor Hillary supports the Constitution, we’ve been told that Republican-turned-Libertarian Gary Johnson is the most constitutional choice. Or not, as revealed by Timothy P. Carney:

At the Democratic National Committee I ran into Gary Johnson, the former New Mexico governor and Libertarian Party nominee for president. …

Do you think New Mexico was right to fine the photographer for not photographing the gay wedding?

“Look. Here’s the issue. You’ve narrowly defined this. But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we’re gonna open up a can of worms when it come stop discrimination of all forms, starting with Muslims … who knows. You’re narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of.”

Can the current federal [Religious Freedom Restoration Act] be applied to protect things like the wedding photographer and the Little Sisters of the Poor?

“The problem is I don’t think you can cut out a little chunk there. I think what you’re going to end up doing is open up a plethora of discrimination that you never dreamed could even exist. And it’ll start with Muslims.”

n a year when conservatives are being turned off from Donald Trump, do you worry that you’re turning off conservatives who might come to the Libertarian Party?

“It’s the right message, and I’m sideways with the Libertarian Party on this…. My crystal ball is you are going to get discriminated against bysomebody because it’s against their religion. Somehow you have offended their religion because you’ve walked in and you’re denied service. You.”

You think it’s the federal government’s job to prevent—

“Discrimination. Yes.”

In all cases?

“Yes, yes, in all cases. Yes. And you’re using an example that seems to go outside the bounds of common sense. But man, now you’re back to public policy.

And it’s kind of like the death penalty. Do I favor the death penalty? Theoretically I do, but when you realize that there’s a 4 percent error rate, you end up putting guilty people to death.

I think this is analogous to hate crime. Convict me on the act of throwing a rock through somebody’s window. But if you’re going to convict me on my motivation for doing that, now you’re back to religious freedom. I mean under the guise of religious freedom, anybody can do anything. Back to Mormonism. Why shouldn’t somebody be able to shoot somebody else because their freedom of religion says that God has spoken to them and that they can shoot somebody dead.”

That doesn’t seem like the distinction that a libertarian typically makes. Shooting is an initiation of force, versus deciding what ceremonies to participate in.

“Well, they bring out this issue, which I realize it has happened. But the objective here is to say that discrimination is not allowed for by business …”

“I just see religious freedom, as a category, as just being a black hole.”

Johnson’s campaign clarified what he meant by the shooting-Mormons reference later, which prompted McKay Coppins to observe:

To summarize: Mormons dislike Trump & Clinton more than any other voter group in America — and Johnson is warning of violent radical Mormonism.

Ian Tuttle calls it …

… some A-grade, five-star, top-shelf stupid — and that’s in an election featuring almost unlimited material from Donald J. Trump. Does this question really require an answer? Okay, give this one a whirl: Because it’s difficult to have a functional body politic when people are slaughtering one another.

More to the point, though: Johnson’s answer is entirely ignorant of American legal history. Yes, religion has been used as an excuse to perpetrate violence in the U.S. But that didn’t make the violence legal. “Freedom of religion” is not, and has never been, a blanket exemption from the penal code.

Nor is the Religious Freedom Restoration Act, which Johnson was supposedly addressing with this response (and which he seems to be opposed to). The text of the federal version of that act, passed in 1993, reads:

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1)is in furtherance of a compelling governmental interest; and
(2)is the least restrictive means of furthering that compelling governmental interest.

Keeping citizens from willy-nilly murdering one another would qualify as a pretty darn compelling governmental interest — in the event that that were even an urgent problem, which it isn’t. The issue we face at present is whether, say, a Catholic nurse can be forced to participate in an abortion procedure. If you think protecting her conscience rights is starting America back down the slope toward segregated lunch counters, you’re a fool — or, apparently, Gary Johnson.

Sorry, social conservatives. This is not the “serious alternative” you’re looking for.

To sum up: Trump believes the Constitution is expendable. Hillary doesn’t believe in your First or Second Amendment rights. (Nor, in the latter case, does Republican-turned-Libertarian vice presidential candidate William Weld.) Johnson doesn’t believe in freedom of religion or association. Great country we live in, isn’t it?

Or, put graphically:


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