For some Constitutional Originalists, there are worse things than a potential Hillary Clinton presidency
The Weekly Standard has an interesting article by Terry Eastland, recounting a conversation with Stephen Sachs of Duke Law School, in which Sachs made the Constitutional Originalist case against Donald Trump.
Originalists – typified by the late Supreme Court Justice Antonin Scalia – are those who believe that when deciding cases or evaluating potential laws, the Constitution should be interpreted in the context of how the text was commonly understood by society at the time of writing. They are the opposite of Living Constitution advocates, who believe that the US Constitution is a “living and breathing” document which should be continually reinterpreted in line with changing moral values and societal views.
Originalists Against observes that the Constitution vests in a single person the executive power of the United States but contends that “we would not vest that power in Donald Trump,” in light of his “character, judgment, and temperament.”
Originalists Against also doubts that Trump would do as the president’s oath of office (itself in the Constitution) requires, and protect the Constitution. Trump has “shown [himself to be] indifferent or hostile to the Constitution’s basic features—including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law.”
The statement identifies several instances of this constitutionally indifferent and hostile Trump. The president must take care that the laws be faithfully executed, but Trump admires dictators as above the law. The president must hold a public trust on behalf of all Americans, but Trump courts those who would deny to others the equal protection of the laws. The president must preserve, protect, and defend the Constitution, but Trump has treated the legal system as a tool for arbitrary and discriminatory ends, especially against those who criticize him or his policies.
And Eastland summarises:
“Originalists Against also does not trust Trump to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part.” Here the signatories recognize that because a constitutional government is necessarily a limited government, political actors may not simply do as they wish.
Of course, none of this means that Hillary Clinton is anything like a principled Originalist herself – quite the opposite. Only at the last presidential debate against Donald Trump, when the subject of nominating Supreme Court justices was raised, Hillary Clinton immediately started waxing lyrical about the importance of selecting judges who would be partners in achieving progressive change. She sees the judiciary as wielding an explicitly political role which of course is the absolute last thing that a good Supreme Court nominee should do.
As this blog summarised the exchange at the time:
Chris Wallace’s first question is about the Supreme Court, and where both candidates “want to see the court take the country”. He follows on to ask whether they believe the Constitution is a living document or set in stone.
[..] Hillary Clinton immediately politicises the Supreme Court, saying that it should stand on the side of “the people” (meaning her leftist policies). I’m sorry, but no. The Supreme Court should stand on the side of the Constitution, not on the side of whatever basket of special interests Clinton decides to label “the people”.
Clinton sees the Supreme Court as an essential vehicle for continual, aggressive social change, far beyond anything that can be reasonably inferred from the text of the document and the original intent of the Founders. Not good.
But it is encouraging to see the Originalists Against Trump movement place fidelity to America’s fundamental governing document over narrow political interest. One cannot imagine that many of the Originalists are enthusiastic Hillary Clinton supporters, yet they seem principled enough to declare that some things matter more than the outcome of a single presidential election:
Trump says he will pick individuals with views of judging like Scalia’s to the Supreme Court and the lower courts. Advised by the Federalist Society and the Heritage Foundation, he has compiled a list of 21 prospects for the Supreme Court among whom he could choose in filling vacancies, starting with Scalia’s seat.
[..] The problem would not appear to be with any of the 21 on his list—the originalists have not doubted them—but with Trump himself, whom they do not trust to do what he says. Here again character is the concern.
Originalists Against thus are willing to accept a Clinton presidency even if that means a Clinton Court. Says the statement: “Our country’s commitment to our Constitution is not so fragile that it can be undone by a single administration or a single court. Originalism has faced setbacks before; it has recovered. Whoever wins in November, it will do so again.”
This chimes with my own thinking. I’ve been clear all along that I find this US election an unpalatable but obvious choice. In many ways Hillary Clinton represents a continuation of everything that is bland, uninspiring and statist about American politics – but she is the kind of bad that America as endured before and can endure again if necessary. Or as PJ O’Rourke recently put it, “she’s wrong within the normal parameters of wrong”.
With Donald Trump, by contrast, you just don’t know. What we do know of his policies and instincts suggest a frighteningly authoritarian mindset which doesn’t sit any more comfortably with American liberty than Hillary Clinton’s reflexive statism and faith in Big Government. And there is much that we still don’t know about Trump, like when his miraculous Damascene conversion from being a Clinton-admiring Democrat to a strident nationalist actually happened, and if it is even for real. Never mind whether Donald Trump’s policies are good or bad – at this point we don’t even know whether or not they are just a cynical act.
Ultimately, my thinking comes down to this: one should not take risks with the US Constitution. Of course it is likely that Hillary Clinton would do her best to pack the Supreme Court with as many “Living Constitution” acolytes as new vacancies permit over her four or eight years in office, which would be a mostly bad thing in terms of policy outcomes and a comprehensively bad thing in terms of the law. But I have no faith that Donald Trump remotely respects the Constitution either; in fact, I think it is far more likely that Trump would seek to override or subvert the Constitution in a fit of pique than would a machine politician like Hillary Clinton.
Originalists Against Trump seem to recognise this danger too, and no matter how much some of them may prefer the policies and attitudes currently being expressed by Donald Trump, they know better than to trade their support for the Constitution for any potential short-term political gain.
Which makes Originalists Against Trump one of the most principled and selfless actors in this entire tawdry presidential election season.
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