The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Trump and the Constitution [updated with some additional points]
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.
UPDATE: Some might wonder whether the Senate would confirm terrible Trump nominees. But GOP senators may well vote to confirm his nominees out of party loyalty. Senators usually don't like to buck a president of their own party. Some Democrats may do so because Trump nominees' views will be closer to their own on key issues (campaign finance, property rights, the scope of federal power) than those of more conventional Republicans. But even if the Senate does reject some of his more awful nominees (as could well happen), he at the very least can't be counted on to appoint any good ones. At best, his nominees will be slightly more palatable versions of what he really wants.
UPDATE #2: Prominent originalist legal scholar John McGinnis offers some additional reasons why Trump is likely to be terrible on judicial appointments.
