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.”
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.” 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. 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.
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.
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.”
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.” 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. 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.
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.
