Trump and the Constitution

Republican presidential candidate, businessman Donald Trump pauses during a Republican presidential primary debate at The University of Houston, Thursday, Feb. 25, 2016, in Houston. (AP Photo/David J. Phillip)

Republican presidential candidate, businessman Donald Trump pauses during a Republican presidential primary debate at The University of Houston, Thursday, Feb. 25, 2016, in Houston. (AP Photo/David J. Phillip)

Some conservatives who otherwise have little use for Donald Trump console themselves with the thought that he might at least appoint good judges to the federal courts. Judicial appointments are indeed a vital issue in the 2016 election, because the next president might select as many as four Supreme Court justices. Unfortunately, there is good reason to fear that a President Trump would appoint judges who are likely to be a menace to our constitutional rights – especially from a conservative, libertarian, or originalist perspective.

Trump has little record on most constitutional issues, so it’s hard to say what his general approach to constitutional interpretation might be, or if he even has one. As David Bernstein puts it, he may well believe “that the U.S. Constitution is a luxury yacht.” But he does have an extensive and consistent record on two important constitutional issues: freedom of speech and property rights. And that record is deeply troubling.

As Walter Olson points out, Trump has a long history of filing bogus libel suits to try to silence his critics. He recently stated that he wants to “open up the libel laws” to make such lawsuits easier in cases “when The New York Times writes a hit piece which is a total disgrace or when The Washington Post… writes a hit piece.” It seems clear that he hates to be criticized, and wants to use the law to suppress such criticism as much as possible. His contempt for freedom of speech is also evident in his pining for the “old days” when his supporters could beat up protestors to the point where they “have to be carried out on a stretcher.” Ditto for his desire to have the FCC take some of his critics off the airwaves. It seems likely Trump would try to appoint judges who share his views on libel law (it might be harder to find ones who share his views on beating up protestors). If so, that would be a major threat to First Amendment rights.

But the problem goes well beyond that. The kinds of judges who would be willing to endorse the use of libel laws to stifle political speech are unlikely to effectively protect other important speech rights and civil liberties. Strong protection for political speech is one of the issues on which all but the most pro-government jurists (or those who are highly skeptical of nearly all judicial review) agree. Those who are willing to abdicate judicial responsibility in this field can’t be counted on elsewhere, either. On these issues, by the way, Trump judges are likely to be much worse than conventional liberal Democrats. Most of the latter support strong judicial protection for political speech, with the exception of campaign finance laws (an issue where Trump is on the same side as the liberals).

The other constitutional issue on which Trump has a longstanding, consistent record, is property rights. He has long defended the Supreme Court’s notorious decision in Kelo v. City of New London, and the doctrine that the government should be able to condemn property for almost any reason, including transferring it to influential private developers, like himself. This doctrine is contrary to the original meaning of the Fifth Amendment, and is also problematic from the standpoint of many “living Constitution” theories. It has led to extensive victimization of the poor and politically weak for the benefit of the powerful (including Trump himself).

Unlike in the case of freedom of speech, there are intellectually serious arguments to be made in defense of Trump’s position on takings, which is backed by many (mostly liberal) constitutional law scholars and judges. That’s one of the reasons why I took the time to write an entire book critiquing Kelo and other similar decisions. But most such defenses of Kelo at least implicitly depend on the proposition that property rights deserve little or no judicial protection of any kind. If Trump appoints pro-Kelo judges to the courts, that is likely to hamstring judicial protection for constitutional property rights in many other cases, as well.

Moreover, as Jonathan Adler points out, most constitutional originalists (particularly conservative and libertarian ones) oppose Kelo. Pro-Kelo Trump appointees are likely to be either living constitutionalists, advocates of across-the-board judicial deference to the government, or some combination of both. That ought to concern conservatives and others who want to see originalists on the bench.

This extensive record on two major constitutional issues easily outweighs Trump’s one-time mention of Judges Diane Sykes and William Pryor as potential Supreme Court nominees. Given Trump’s willingness to say almost anything to get elected, a consistent, longstanding record should carry more weight than a single piece of campaign rhetoric in his case, even more than with most other candidates. Indeed, these are among the very few issues on which Trump has taken a consistent position since long before he ran for president.

In sum, Trump’s record on constitutional issues strongly suggests he would try to appoint judges who will make it easier for him to use libel laws (and possibly other mechanisms) to suppress opposition speech, and who would be deeply hostile to judicial protection for constitutional property rights. Such judges would probably also pose a threat to other civil liberties, and are unlikely to be originalists. Unless that prospect sounds appealing, his potential judicial appointments are a reason to oppose Trump, not support him.

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He said ‘Jehovah’!

Dr. Jogchum Vrielink (University of Leuven, Belgium) reports on an incident related to the Dutch pig hat story. The wearer of the hat, a leader in the Pegida movement, was arrested for displaying a sign with a swastika. “The city’s mayor,” Vrielink reports, “had, beforehand, explicitly prohibited displaying swastikas during the demonstration (and as you may know many countries in Europe regard public display of swastikas to violate hate speech legislation anyhow).”

But the swastika in this particular Pegida logo is being thrown into the trash, together with an Islamic State flag, a flag of the group Antifascist Action” and what appears to be a Kurdistan Workers’ Party flag. (Antifascist Action itself seems to have used a man throwing a swastika into a trash can as a symbol of its own.) According to Vrielink and, the logo in question was this one:


But, the NLTimes (Zack Newmark) reports,

[T]o the city of Amsterdam the context is not at issue.

“The use of swastikas will not be tolerated, even if they are included in a protest sign or other form of expression where the National Socialist ideology is rejected, or in any other manner of speech whatsoever,” the city said. It stated that the swastika has too strong of a link with Amsterdam’s “traumatic past,” and that its display “may lead to intense reactions, with a disturbance of public order being the result.”

That doesn’t seem sensible to me, much as I loathe Nazism. It is hard to see much disturbance of public order in the Netherlands that inherently stems from pictures of a swastika being thrown in the trash; if a disturbance happened, it would be because people were disturbed by Pegida’s general viewpoint, not the swastika. Nor can this be justified as an attempt at viewpoint neutrality (no swastika use by Nazis, no swastika use to criticize Nazis), because it’s clear that the suppression of the symbol is precisely because of the viewpoint it expresses.

Vrielink told me that “It’s noteworthy that even in Germany (unsurprisingly one of the strictest countries in this regard, where symbols having to do with national-socialism are explicitly banned by a special criminal provision) banners/signs that use the swastika dismissively (like the anti-fascist movement does, for instance) have been found to be lawful (not exactly viewpoint-neutral, obviously, but that’s Europe for you).” I wonder whether indeed this is a rule that will be applied to Pegida but not to other groups that depict a swastika negatively; if anyone has more evidence on that, I’d love to see it.

(If you’re unfamiliar with the work to which the post title refers, see here.)

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Escheating scandal?

Justice Samuel Alito, joined by Justice Clarence Thomas, faults some states today for insufficiently notifying property owners before “escheating their financial assets” — confiscating them on the grounds that they are supposedly abandoned. See Taylor v. Lee, a statement concurring in the Supreme Court’s refusal to review one such case; the opinion notes that “The convoluted history of this case makes it a poor vehicle for reviewing the important question it presents, and therefore I concur in the denial of review,” but adds that “the constitutionality of current state escheat laws is a question that may merit review in a future case” — a signal to lawyers to bring the matter up again in the future.

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Justice Alito on discrimination against Jewish prison inmates

Supreme Court Justice Samuel Alito, left, arrives for the funeral of Associate Justice Antonin Scalia at the Basilica of the National Shrine of the Immaculate Conception in Washington on Feb. 20. (Carlos Barria/Reuters)

This morning, the Supreme Court declined to hear Ben-Levi v. Brown, but Justice Samuel Alito dissented, arguing that North Carolina prisons had discriminated against the Jewish plaintiff prison inmate, in violation of the Free Exercise Clause.

Ben-Levi is serving a life sentence for a 1980 rape; at some point, he changed his name to Israel Ben-Levi, and either converted to Judaism or rediscovered Judaism; he now wants to engage in group Torah study with two other inmates. North Carolina prisons generally allow group religious study; but for Jews they require either the presence of a rabbi or a minyan — 10 adult Jews. The minyan requirement stems from the prison system’s understanding of Jewish law.

This, Justice Alito argues, is impermissible religious discrimination against Jews, which violates the Free Exercise Clause:

In essence, [the warden]’s argument — which was accepted by the courts below — is that Ben-Levi’s religious exercise was not burdened because he misunderstands his own religion. If Ben-Levi truly understood Judaism, [the warden] implies, he would recognize that his proposed study group was not consistent with Jewish practice and that [the warden]’s refusal to authorize the group “was in line with the tenets of that faith.”

The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents. This Court has consistently refused to “question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants.” “Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.”

Just last Term, we emphasized that the government cannot define the scope of personal religious beliefs. In Holt v. Hobbs, we held that a prison policy preventing a Sunni Muslim inmate from growing a ½-inch beard substantially burdened his religious exercise. In so holding, we explicitly rejected the argument that there was no burden because “not all Muslims believe that men must grow beards,” reaffirming that “the guarantee of the Free Exercise Clause … is ‘not limited to beliefs which are shared by all of the members of a religious sect.’”

As this discussion makes clear, [the warden]’s focus on the correctness of Ben-Levi’s understanding of Judaism is inconsistent with our case law. Even assuming that [the warden] accurately identified the requirements for a group Torah study under Jewish doctrine — and that is not at all clear — federal courts have no warrant to evaluate “the validity of [Ben-Levi’s] interpretations.” Instead, the courts below should have considered whether the [prison system] policy imposed a substantial burden on Ben-Levi’s ability to exercise his religious beliefs, as he understands them. Ben-Levi believes that relaxing the minyan requirement promotes his faith more than sacrificing group Torah study altogether. By ignoring Ben-Levi’s actual beliefs and focusing solely on [the prison system]’s understanding of Judaism, [the warden] and the courts below considered the wrong question.

[Footnote moved: [The warden] notes that “in one of the few documents filed by Petitioner in this case, the author states that ’[i]t is best to pray in a synagogue with a Minyan (a congregation of at least ten adult men).’” Even assuming that Ben-Levi agrees with that statement, [the warden] is not permitted to dictate the appropriate religious response to Ben-Levi’s inability to muster a minyan. The prisoner in Holt believed that ‘his faith requires him not to trim his beard at all,‘ but he preferred a ½-inch beard to no beard. Likewise, Ben-Levi believes that a study group with fewer than 10 Jewish participants is preferable to no study group at all. [The warden] has no business questioning the validity of this belief.] …

Nor can I conclude that Ben-Levi’s ability to engage in “private worship” shows that his religious exercise was not burdened. If the opportunity to pray and study privately were sufficient to satisfy the First Amendment, then prisons could justify any restriction on religious exercise short of depriving an inmate of his religious texts.

Many prisoners, Ben-Levi included, consider it important to congregate with other practitioners of their faith for prayer and discussion. Preventing them from doing so burdens their religious exercise, even if they are allowed to study and pray alone in a cell. Ben-Levi has presented ample evidence that group study, even absent a minyan, is important to his faith. The courts below thus erred in holding that his religious exercise was not substantially burdened as a matter of law….

[The warden] contends that several government interests justify [the prison system]’s policy, including (1) maintaining order, security, and safety; (2) balancing inmate relationships; and (3) conserving personnel resources…. The problem with these asserted justifications is that they seem to apply equally to inmates of other religions, who were nevertheless allowed to meet in groups of fewer than 10 without an outside leader. For instance, [the warden] has given no reason to believe that Jewish prisoners are more inclined than prisoners of other religions to “us[e] faith practice to mask their gang activity.” Nor is there any indication that a Jewish study group is more likely than a Christian or Muslim group to impede order, compromise inmate relationships, or absorb personnel resources. The State has no apparent reason for discriminating against Jewish inmates in this way….

Needless to say, the Court’s refusal to grant review in this case does not signify approval of the decision below. But the Court’s indifference to this discriminatory infringement of religious liberty is disappointing.

Alito’s legal analysis seems quite correct to me. Alito is also clearly correct in noting that the court’s refusal to grant review isn’t a judgment on the merits, and it’s also not a precedent: The court gets 8,000 petitions per year and agrees to hear about 80 of them — it often declines to review cases because it doesn’t think the decisions (right or wrong) merit the justices’ time, or because there are procedural problems with the case.

Finally, note that Alito didn’t discuss whether the prison system’s actions violated the Religious Land Use and Institutionalized Persons Act, which requires exemptions even from some neutral, nondiscriminatory prison policies — here, Alito concluded, the policy was discriminatory, and thus violated the Free Exercise Clause itself.

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Video of Federalist Society debate on immigration and the Constitution

Yesterday, prominent constitutional law scholar John Eastman and I debated the moral and constitutional status of immigration restrictions, at the Federalist Society National Student Symposium. Federal district Judge Amul Thapar moderated. The debate covered both broader legal and policy issues related to immigration, and the United States v. Texas case, currently before the Supreme Court. I outlined my views on the broader issues covered in the debate here and here, and on United States v. Texas here.

Many thanks to the Federalist Society for setting this up, and to John Eastman for his thoughtful contribution to the debate!

Here is a link to the video:

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Galveston police officer indicted for searching car of photography rights activist

Here’s the indictment:


The Houston Chronicle (Mihir Zaveri) reports:

A Galveston city police sergeant has been indicted by a grand jury on a misdemeanor criminal trespass charge arising from the search of a self-described video activist’s vehicle, according to prosecutors… .

[Sgt. Archie] Chapman arrested [Phillip] Turner [who was observed filming near the police department] … on charges of failure to provide identification to officers, but the chargers were subsequently dropped, prosecutors said.

Chapman’s attorney, Greg Cagle, said his client was looking in Turner’s car for the man’s driver’s license to book him into jail after detaining him. Cagle said Chapman was worried about the safety of police officers, sheriff’s deputies and jail staff who worked in the nearby building.

Around the same time, Turner lost a federal civil case (Turner v. Driver) brought by him based on a separate incident, in which he was detained by the police for photographing near a police station. The court ruled that, whether or not there is a right to photograph near police stations and to refuse to identify oneself when questioned by the police for that, the right wasn’t sufficiently “clearly established” to authorize damages liability:

Plaintiff alleged that he was arrested in violation of his First Amendment right to videotape a police station and the activity at the station, and his right to refuse to identify himself when officers from the station asked him to do so. According to plaintiff, he was conducting his videotape activity while standing on a public sidewalk across the street from the police station. [Officers] Turner and Grinalds came from the station and asked plaintiff to identify himself. When plaintiff refused to provide identification, he was handcuffed and placed in the back of a police car. [Officers] Turner and Grinalds requested that a supervisor come to the scene, and [Lieutenant] Driver responded. Driver also requested identification from plaintiff. Plaintiff again refused to provide identification. Driver lectured plaintiff but eventually allowed him to leave… .

The Supreme Court and Fifth Circuit have not addressed whether or not there is a First Amendment right to videotape police activities. Circuit courts that have addressed the issue in different contexts are split as to whether or not there is a clearly established First Amendment right to record the public activities of police. Compare Gericke v. Begin, 753 F.3d 1, 9 (1st Cir. 2014) (holding that there can be a First Amendment right to film a police officer making a traffic stop), and Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding that there is a First Amendment right to videotape police activity, subject to reasonable time, manner and place restrictions), with Kelly v. Borough of Carlisle, 622 F.3d 248, 262-63 (3d Cir. 2010) (holding that a First Amendment right to videotape police officers during a traffic stop was not clearly established), and Szymecki v. Houck, 353 Fed. App’x 852 (4th Cir. 2010) (agreeing with a lower court that there was qualified immunity because the asserted right to record police activities on public property was not clearly established in the Fourth Circuit).

An official is entitled to qualified immunity unless preexisting law makes apparent the unlawfulness of the official’s conduct. There is nothing in the case law to suggest that police officers are constitutionally prohibited from making reasonable inquiry, and taking reasonable steps, to identify an unknown person who is seen videotaping their place of work and the place where they come and go in their private vehicles. In this day and age, the risk to public officials, particularly police officers, is such that a police officer could reasonably believe that he had the right to require plaintiff to identify himself after plaintiff was observed videotaping the police station and to take appropriate action in response to plaintiff’s refusal to identify himself.

When the unique facts of this case, as alleged by plaintiff, are considered, all movants enjoy qualified immunity for the actions they took in response to plaintiff’s conduct….

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Donald Trump says he’ll ‘open up libel laws’

Republican presidential candidate businessman Donald Trump. (AP Photo/David J. Phillip)

Politico (Hadas Gold) includes a video that shows Donald Trump (at a Fort Worth rally) saying:

I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So that when The New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected. You see, with me they’re not protected, because I’m not like other people, but I’m not taking money — I’m not taking their money. So we’re going to open up those libel laws, folks, and we’re going to have people sue you like you never got sued before.

Politico also says (though this appears to be from before the start of their video) that Trump was saying that this was “One of the things I’m going to do if I win.”

Of course, if a plaintiff can show that an article is false, and the authors know it’s false (or know it’s likely false), then he can already win under libel law. But if not (and if the plaintiff is a public figure and the article is on a matter of public concern), then the Supreme Court’s decision in New York Times Co. v. Sullivan (1964) precludes that; even if Trump is elected President, he can’t change that (unless he appoints enough Justices and uses their views on reversing Sullivan as a litmus test).

More broadly, libel law is almost exclusively state law. Even apart from the First Amendment, and even assuming that Trump is implicitly saying that he’d get a cooperative Congress to change the law, he must be contemplating a sharp increase in federal authority here. That is, of course, if he’s actually serious.

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