This column first appeared Dec. 21 on Library of Law and Liberty.
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).