The site Huffington Post warns of “Trump’s War on the First Amendment.” PEN American Center executive director Suzanne Nossel, formerly executive director of Amnesty International USA, writes that “Trump’s Divisive Speech Puts the First Amendment at Risk.”
Trump criticizes the media—though he would have to tweet very rapidly indeed to criticize them as often as they criticize him. He has half-jokingly wondered aloud whether some TV news networks deserve to have their broadcast licenses revoked for lying, but that’s not even his call. It’s the FCC’s, and even the FCC doesn’t have the power to censor views or close down a whole network. At most, they could yank the broadcast licenses of individual, local stations. The Internet would remain almost unassailable even then.
But this is all hypothetical—and a little ridiculous. Trump is not going to shut down the media. What he is going to do is something that bothers journalists far more than government action. (They seem to like government action most of the time, in fact.) He’s going to keep criticizing them. That isn’t a threat to the First Amendment. It’s part of the endless debate the First Amendment makes possible.
Trump has a good record as a defender of the whole Bill of Rights (to take just the most well-known part of our Constitution, its first ten Amendments). Consider:
The First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In addition to leaving the press unmolested, Trump took an important symbolic action against one stealthy, growing threat to free speech. If the government subsidizes universities, and those universities increasingly restrict what students can say (at an important, politically formative time in their lives and on campuses that are incubators for later political organizing in the adult world), the government is in effect outsourcing censorship to academia.
Officially, Congress’s hand stays clean, but indirectly government thereby strikes a terrible blow to our culture, undermining the willingness of young people to engage in open-ended, free-spirited political discussion, especially if they want to speak up in favor of rights like the ones enshrined in the Constitution, as opposed to ones conjured by “social justice” advocates.
President Trump invited members of my group, Turning Point USA, to be present at the White House on March 21, 2019, when he signed an executive order warning colleges that receive federal funding that they have a duty to respect their students’ First Amendment rights. The president also mentioned our organization on multiple occasions during the event, complimenting the work we are doing on campuses across the country.
As the president put it, “We reject oppressive speech codes, censorship, political correctness, and every other attempt by the hard left to stop people from challenging ridiculous and dangerous ideas. These ideas are dangerous. Instead, we believe in free speech, including online and including on campus.”
With both his criticism—not censorship—of the press and reminder to publicly funded colleges of their stated missions, Trump is not seizing control of elements of the culture beyond his purview. He is barely altering policy. He is, however, sending a powerful cultural signal to two of the most important bastions of left-wing power that the rest of us are onto them.
For decades now, the institutionalized left has relied on the “tenured radicals” of academia not only to encourage campus activists—sometimes giving them time off or even class credit for left-wing activist activities but rarely for, say, Turning Point USA rallies—but also to train the nation’s journalists. You don’t have to go to journalism school to pick up on the left’s philosophy, either. It’s in English classes. It’s in history classes. Almost any college student in America in the twenty-first century knows what it’s like to be told, in ways subtle and unsubtle, that there’s a rough narrative that all good people agree upon about what America is and what one should expect each new story from the wider world to affirm.
You’re free to say what you like, thank goodness, but unless you’re naturally combative, you’ll probably have been trained to be skeptical of tradition, religion, capitalism, individualism, the right to armed self-defense, conventional gender roles, or the classics of Western literature. In the place of all of those things—which not so long ago one might have summed up with the label “civilization”—there is the gospel of social justice, substituting, respectively, for each of those components of civilization: subversion, mysticism, socialism, collectivism, gun control, sixty-three genders, and postmodernism.
Who needs censorship, the cynical leftist might chuckle, when everyone in academia and media is on the same page anyway? To step out of line takes courage when it invites disapproval that can affect, in rough chronological order, your prospects for college admission, good grades, philosophical credibility, employment, and affirmation by the media establishment. Everyone from your teachers to social media executives is determined to behave as if the left-establishment’s worldview is as unquestionable as mathematics or basic physics, and it’s an effective strategy. People are prone to think as their peers do. If no one appears to be questioning a worldview, it remains dominant . . . at least for a while.
In pointing a finger at two of the pillars of the liberal establishment’s dominance—academia and media—Trump is not threatening the First Amendment. He’s showing us where the threats to those freedoms are likeliest to come from. Sooner or later, an establishment that hates to be questioned may like to make it official by writing it into law.
I don’t expect the left to pass a law anytime soon saying that conservative books are banned—but keep in mind their ever-expanding definition of “hate” and their willingness to contemplate legal remedies to that state of mind.
While Trump gets lambasted unfairly as a threat to press freedom, the Federal Election Commission keeps openly contemplating the idea of cracking down on “misinformation”—as decided by them—that might affect the outcome of elections. I won’t deny there’s plenty of nonsense online, some of it from dubious sources, but if policing information for its political appropriateness isn’t a formula for First Amendment violations, I don’t know what is. We will regret going down that road if we insist on doing so.
I think if the debate were about censoring books or traditional print newspapers that contain political “misinformation,” it would be more obvious, even to the left, how insane this line of thinking is. When it’s slightly newer technology, the idea somehow seems more palatable, like a modernized regulation instead of a direct assault on a document ratified in 1787 and meant to endure for the ages.
Even now, DARPA, the Defense Advanced Research Projects Agency, is publicly discussing its plans to develop software to combat misleading memes. That means a think tank affiliated with the Defense Department, using taxpayers’ dollars, will wage cyber war against what the government deems bad ideas, using algorithms to hide the fact that certain values are overriding certain other values, as if it were all just a matter of spotting certain letter combinations and numbers.
Meanwhile, TV journalist Chris Cuomo effectively threatens CNN viewers and his Twitter followers, telling them CNN has the right to view documents (such as those leaked to WikiLeaks) that the public does not and that “hate speech” is not protected by the First Amendment, which would be a big surprise to some sharp-tongued Founding Fathers and their political opponents.
And while the press itself—not Trump—erodes the idea of free speech, back on campus, activists partner with boring college administrators on hundreds of US college campuses to encourage the idea of anonymously reporting any remotely culturally biased statement to “bias response teams,” which can lead to mandatory sensitivity training.
Ironically, over two centuries after fighting the British for the right to create our Constitution, it sounds like we’re moving in the direction of creating speech cops who listen in on your conversation for insensitive or forbidden ideas, as police in England increasingly do. All for your protection, of course.
The Second Amendment
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
A couple of generations ago, it was liberals and leftists who often claimed to be the guardians of the Constitution, especially of First Amendment speech protections, but they’re rapidly losing interest in that amendment. The Second Amendment, by contrast, they never much liked to begin with.
Only recently have they become so bold as to suggest legislators should repeal the Second Amendment outright, something that is not very likely to happen in a nation with about one hundred million enthusiastic gun owners. But they are always chipping away at it, seizing every opportunity to press for new regulations, more restrictive background-check recommendations, more exaggerated mass-shooting stats, louder overreactions to gun-related tragedies, more sinister characterizations of average gun owners, more implausible post hoc rationalizations about which criminals would have been caught by which hypothetical screening methods, and endless “commonsense” proposals for seemingly minor regulations that in practice would make gun purchases nearly impossible and impose strange use, storage, and equipment standards for little or no safety reason.
It is striking how different the view of guns in rural America (where a disproportionate number of the conservatives are) is from the view of guns in urban centers (where a disproportionate number of the leftists are). Rural America knows most gun owners are harmless defenders of property, range shooters, or hunters, while urban America, still getting over its nightmares from the sky-high rates of gang violence thirty years ago, thinks guns spontaneously spark violent chaos if left unregulated for more than a few seconds. Urban dwellers have a very hard time imagining a gun in the hand of anyone other than a cop or a criminal—which means they feel very comfortable imagining the rest of us disarmed.
Given that President Trump is a New Yorker, then, we should consider ourselves very lucky he didn’t pick up the urban anti-gun impulse. He respects Americans’ right to self-defense, and he respects the responsible nature of most legal gun owners over the federal government. He strays in tiny ways from the pure NRA stance of resistance to every new gun regulation proposal—but then, so does the NRA itself. Luckily, Trump’s conservative supporters haven’t been shy about holding his feet to the fire on the rare occasions when he sounds sympathetic to bump stock bans or social credit-checking for gun purchasers.
He has certainly signaled his sympathy for the nation’s hunters and gun owners, in any case, and I had the honor of seeing that another member of the Trump family enjoys putting his gun rights into action: I’ve been alligator hunting with Donald Trump Jr. in the swamps of Louisiana, with that state’s attorney general, Jeff Landry, plus Trump Jr.’s girlfriend, former Fox News host Kimberly Guilfoyle, and Sergio Gor from Senator Rand Paul’s office. I first met the Trumps back in Chicago in person at one of Trump Sr.’s big rallies, little imagining I’d one day be with a member of the First Family in a setting so intimate and yet so far removed from their New York or D.C. homes, or other urban media and political environs. Neither Donald Jr. nor I were born woodsmen, needless to say, but he has become quite the avid hunter—probably a good influence on his father’s thinking about guns.
I am learning. Paradoxical as it may sound to the non-hunter, you learn a greater respect for both the gun and the gator while you’re out in the swamp. The protest banners we dimly recalled from back in the big cities and the piles of political literature wouldn’t amount to much in this primal confrontation of lead and teeth. Even alligator hunting is a story of the little guy against the government. The alligator was put on the endangered species list in the 1970s and taken off in the 1980s. However, there were three-quarter of a million alligators when the government added it to the list. It was never genuinely endangered. The reason their population has grown to five million since is instead due to the careful work of local hunters, landowners, and farmers whose livelihoods depend on the successful protection of alligators.
You’re happy to have a gun when you see a twelve-foot gator headed your way.
I used it, too. Don Jr. got an eleven-footer. Sergio got a ten, which he had mounted. And Kimberly made a pair of high heels out of the nine-footer she bagged.
Let no one tell you the only purpose for a gun is a government-run militia, police force, or military. Sometimes, whether against gator or human predator, you’re on your own, as the frontier-expanding Founders well knew.
The Third Amendment
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Historian Gordon S. Wood has called the Third Amendment the least-litigated of all the amendments, and the Supreme Court has not based decisions on it. Not since at least the days of the Civil War has there been much call for soldiers to be quartered in Americans’ homes, thank goodness. Compared to many war-torn regions in the world, the United States has been an oasis of peace most of the time for over a century.
But the Third is one more reminder that Trump’s aversion to unnecessary military conflicts has implications for the home front, not just for distant lands about which Americans may know little. In a sufficiently large-scale war, including one that began in a Latin American trouble spot such as Venezuela and spread across our porous southern border, there might well be sudden pressure to use Americans’ homes as makeshift military installations.
None of us have seen the United States tempted to resort to such measures in our lifetimes, and I hope we never will, not even if it is done in an orderly fashion. This is not meant as any slight toward the military but as respect for the integrity of home and hearth.
The Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The status of the Fourth Amendment is precarious in an era of increasing technological surveillance capacity by the government. In the early 1990s, the Supreme Court grappled for the first time with the question of whether watching a suspect’s home with infrared FLIR goggles constitutes a search, for instance. If the only thing that counts as a search is the very old-fashioned method of stomping into a home and turning over tables, the government’s perceived authority will be dangerously broad indeed.
And with each passing day, as whistle-blower Edward Snowden reminded the world in 2013, government’s tools for watching and tracking us—not just as suspects but as innocent citizens going about our everyday business—grow ever more subtle and sophisticated.
As well-intentioned as the USA PATRIOT Act may have been in the wake of the September 11, 2001, terror attacks, its capacity to create a roving, ill-defined power of federal government surveillance over Americans has been recognized by critics on both the left and right. The USA Freedom Act of 2015 sought to narrow some of the powers granted to government in the PATRIOT Act in part by limiting the National Security Agency’s power to collect bulk “metadata” on whole populations of non-suspects, the reasoning at the time of PATRIOT’s passage having been that metadata is not in itself communications or user-generated messages.
But by now, most people have some idea just how much can be deduced about any of us, whether by government or industry, from the patterns of our communications alone—who we’re connected to when, by what means, and for how long—even without the specific content of our messages being examined. The thought that the government might think it can continually collect such information from nearly everyone, instead of just precisely named specific criminal suspects for whom surveillance warrants have been written, is unsettling.
At the same time, the Freedom Act acknowledged the relatively reasonable case for continuing to allow roving wiretaps, in the sense that a known suspect might well pick up and discard numerous devices in the twenty-first century as a means of leaving a complex trail for law enforcement to follow.
So it is encouraging, though the issue has by no means been resolved, that as I write these words in the summer of 2019, Trump’s outgoing director of national security, Dan Coats, acknowledged in a letter to Congress the suspension of the NSA’s collection of call detail records but carefully specified the case for renewing the roving wire tape authority (as guided by FISA courts) and for treating “lone wolf” terrorist suspects as fitting targets for tracking even if they are guided by a foreign terror ideology without officially being members of a foreign terrorist organization.
We don’t want the government to do whatever it likes in the name of national security, but we don’t want to be killed by terrorists over a technicality either. Trump’s basic sensibilities incline him to recognize this tension. He is skeptical of both government and red tape, not such contradictory impulses. He has also done admirably little grandstanding on these easily demagogued issues.
The Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Such a short time ago, the left’s joke about the Trump administration’s relationship to this amendment probably would have been the delusional prediction that the president and his advisors will reaffirm the Fifth simply by having to plead it when the Mueller investigation of purported Russian collusion leads to all of them being accused of crimes or compelled to testify before Congress.
But both Donald Trump and Donald Trump Jr. seemed to have the right attitude toward the Fifth even before the Mueller investigation fizzled and devolved into the sad spectacle of a distracted and exhausted-looking Robert Mueller testifying to a Senate committee that he really had nothing more to add to or say about his inconclusive report, the one that so many Democrats had for months assumed would show Trump being manipulated by the Russians. He must have done something criminal, they “reasoned,” since he’s just so . . . insufferable!
But long before things reached that point, Donald Trump Jr. had said he wouldn’t plead the Fifth if called upon to testify even if it spared him an endless and pointless legal morass, since pleading the Fifth might give the wrong impression. And he got that view of the matter from his dad, who had said repeatedly in the past that he thought it odd for innocent people to resort to pleading the Fifth. “The Mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?” as Trump Sr. once put it.
Yet neither man seriously considered trying to alter the Fifth. And Donald Jr. handled his Senate testimony just fine without invoking it—testified twice, in fact, altering none of his original account of the whole crazy Russiagate tale. “It is all nonsense,” as he summed up the Russia investigation after the Senate requested he testify a second time, maybe not having gotten quite the ratings or political bump they hoped for the first time.
The Constitution remains intact. It hasn’t been invoked gratuitously. And the Trump administration can get back to work without the ludicrous drumbeat of an imagined coming Mueller revelation constantly in the background. Democrats will have to find something else to campaign on in 2020, if they know what’s good for them. And Rachel Maddow’s fading news show will need some new topics.
The Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
You can’t be a billionaire or a New York/New Jersey real estate mogul, surrounded by regulations and competitors, without ending up in a few lawsuits. Trump instinctively understands, though, that everyone has a right to make his case, to duke it out, and to deploy tough lawyers to do it, in a fair court.
Gloria Allred, the famous feminist, left-wing lawyer, who has harshly criticized Trump and once represented a transgender person who thought it unfair “she” was not allowed to compete in an otherwise all-biologically-female beauty pageant owned by Trump, nonetheless described a moment that left her with a newfound appreciation for Trump’s love of a good, fair fight.
Trump bumped into Allred and another of her clients in the green room at Fox News, Allred recounted in a Daily Beast article. She recalls, “I introduced him to the client and he said to her while I’m standing there with her: ‘I just want you to know, Ms., you have the best person you could ever have. Gloria is absolutely relentless. She will fight to death for you. She will never never give up. So never ever fire her because you will never get anyone better.’ I said, ‘Well, thank you very much,’ and then he left and that’s the last time I ever saw Donald Trump.”
Like boxing and presidential campaigns, legal battles have their adversarial yet impartial rules, and Trump both respects them and hopes to win.
The Seventh Amendment
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Liberals sometimes portray themselves as the guarantors of procedural justice—the ones who care about your right to remain silent, your right to vote. But over the past two centuries, the liberal tradition of defending those procedural rights has eroded. It has largely been replaced by liberals’ faith in experts and officials. They aren’t so much defending the little guy or the common person as the people in power who are supposed to know best.
I think you’ll find many liberals and leftists look with envy at European court systems, where judges have great leeway, and the protections for the accused are more meager than they are here in the United States.
The populist wave, then, though it’s so often depicted as an effort to cast aside normal rules—with the media endlessly misrepresenting Trump as a kind of spoiled toddler who wants to do everything his way no matter what law or White House etiquette say—is largely an effort to say citizen participation still matters.
It is no coincidence, I think, that it’s largely populists (whether of a conservative or libertarian bent) who have kept alive the legal tradition of “jury nullification,” which is the ultimate exercise of your right to trial by jury. Under jury nullification, controversial enough that some judges refuse to recognize it but praised by other judges in their standard instructions to jurors, even if a defendant has clearly committed the crime of which he is accused, the jury can in extraordinary circumstances vote “not guilty” anyway to punish the state instead of the accused—for creating an absurd law.
As our regulatory super-state grows out of control, and as we face the terrifying prospect of leftists someday creating laws as numerous and as punitive as their list of perceived “microaggressions,” the right of juries to say “no” may become our vital last-ditch fallback tactic for resisting a socialist state. While Trump is in office, I worry about that a bit less. But the day may come.
Don’t let them tell you it’s the populists who want to railroad you.
The Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Trump Supreme Court appointees Neil Gorsuch and Brett Kavanaugh joined a unanimous court in overturning the Indiana State Supreme Court’s affirmation of the seizure of a man’s Land Rover as punishment for a small amount of illicit drug selling.
This Supreme Court decision sets a precedent for applying the Eighth’s clause forbidding excessive fines (as incorporated into states’ behavior by the Fourteenth Amendment) to asset forfeiture cases, and putting the brakes on asset forfeiture cases is a big win for property rights advocates. I am not dismissing the admirable goal of preventing drug abuse, but under asset forfeiture, a frequently used tactic in the war on drugs, police can preemptively seize your house or boat or car on the theory they might later learn those items were acquired with illicit drug profits or used in a drug-selling business. The incentive of police departments to play fast and loose with the rules about when and how you can reacquire your property is obvious, as is the perverse incentive of police departments to auction off the seized items for extra revenue—when they aren’t just tooling around town in the seized cars themselves, as has been known to happen.
Seeing even the two new Trump-appointed conservative justices, whom the left paints as authoritarians, stick up for the accused against the grasping hands of the law is a reminder that Trump, though sympathetic to police, is not just appointing authoritarian “law-and-order” judges. Rather, he’s appointing ones who respect both law and its proper limitations, the state and its bounds.
At the same time, these two Trump appointees have been an interesting living display of the comfort Trump-era conservatives feel with diversity of thought: CNBC notes that an empirical analysis by Adam Feldman, creator of the site Empirical SCOTUS, finds that no two justices appointed by the same president have disagreed with each other more than Gorsuch and Kavanaugh since JFK was president.
So much for conservative narrow-mindedness and homogeneity. There’s more to the Supreme Court—and legal philosophy—than just right vs. left, thank goodness.
The Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Both left and right have been guilty of wanting the federal government to behave as if it can do anything it likes so long as that specific course of action hasn’t been explicitly forbidden by the Constitution. Worse, plenty of people on both left and right are happy to override constitutional limitations on government power when they think some current issue is urgent enough—even though in all likelihood that issue will be forgotten a decade hence, and we will still need an intact Constitution to restrain government power.
To a leftist such as Heidi Schreck, writer of the recent play What the Constitution Means to Me, the Constitution is suspect because it was written by “white males,” that charge being the acid in which everything about our society is being broken down lately. We can’t change that past but can make the future more inclusive. Bring everyone aboard America’s constitutional legal tradition; don’t destroy that tradition. That’s why the Constitution emphasizes individuals, not certain tribes or family lineages. It doesn’t enshrine aristocrats as one official house of the legislature, for instance, while England’s legal traditions did. People of all stripes have shaped the US Constitution’s interpretation since its creation, and every individual benefits from the rights it enshrines. To leftist critics, though, its value is to be judged by its compatibility with present-day left-liberal cultural and policy goals.
That doesn’t mean, though, that every conservative takes a strictly libertarian view of the constraints the Constitution imposes on the federal government, either. To a conservative such as Judge Robert Bork, whose own nomination to the Supreme Court was derailed by paranoid leftist criticisms in 1987 (a foretaste of the sort of opposition Trump appointee Brett Kavanaugh would face in 2018), progressive policy goals may not deserve special judicial deference, but the will of the popular majority does.
That idea has a certain populist appeal, especially if you consider out-of-control left-wing judges or other government officials. However, absent clear, strict limits on government power, it probably will be precisely those sorts of officials who end up imposing their will on the rest of us. Safer, then, to assume almost the opposite of what the leftists and the right-majoritarians do: Assume government can’t do anything unless it’s clearly spelled out in the Constitution. Not too many duties are: courts, defense, guaranteeing mail gets delivered, and not much else, which is for the best.
The Ninth Amendment, in short, affirms that if the Constitution didn’t say otherwise, you as a free person probably have the federal right to do it. When in doubt, the federal government shouldn’t act.
Reason.com senior editor Damon Root noted a slight difference in the way Trump’s two Supreme Court appointees, Brett Kavanaugh and Neil Gorsuch, answered Ninth Amendment questions put to them in their Senate confirmation hearings, a difference that captures the tension within conservatism nicely but also reminds us both conservative approaches are probably safer than the left-wing impulse to read whatever you like into the Constitution.
Republican senator Ted Cruz asked Kavanaugh, “What do you make of the Ninth Amendment? . . . Robert Bork famously described it as an ‘ink blot.’ Do you share that assessment?”
Kavanaugh replied with a long, nuanced answer that contained this kernel: “So I think the Ninth Amendment, and the Privileges and Immunities Clause, and the Supreme Court’s doctrine of substantive due process are three roads that someone might take that all really lead to the same destination under the precedent of the Supreme Court now, which is that the Supreme Court precedent protects certain unenumerated rights so long as the rights are, as the Supreme Court said in the Glucksberg case, rooted in history and tradition.”
Not bad. Beats judges making it up at a whim. Gorsuch’s answer on a related question was simpler, though. Democratic senator Chris Coons asked Gorsuch, “Do you believe the Constitution contains a right to privacy?”
Gorsuch replied, “Yes, Senator, I do.”
Both men are on the right track, I think. In effect, one Trump appointee is saying that judges must defer to history and legal precedent. The other is saying the presumption leans against the government being able to tell individuals what they can do.
Both tradition and individual rights are safer guarantors of our constitutional liberties than the leftist temptation to exercise whatever government power is deemed necessary to prevent the social crisis of the moment, real or perceived. That way lies socialism.
The Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Much as the Ninth Amendment says, in effect, when in doubt defer to individual liberty, the Tenth says when in doubt defer to the states rather than the federal government, unless the Constitution or overwhelming constitutional legal precedent dictates otherwise.
Trump captured the spirit of the Tenth when asked in August 2019 by a Washington Examiner reporter whether cannabis might be legalized during his administration. Trump replied, “We’re going to see what’s going on. It’s a very big subject, and right now we are allowing states to make that decision. A lot of states are making that decision, but we’re allowing states to make that decision.”
That’s it. That’s the proper humble attitude of a president running a federal government that does not pretend to be all-powerful. Trump wants to do what works, and he knows, as any admirer of the market should, that what works is best discovered through variety and experimentation, not a few experts getting together in Washington and telling everyone what to do. We are fortunate to have a conservative president who is more dedicated to that idea than he is to the more old-fashioned conservative impulse to smash druggies throughout the land.
Perhaps Trump’s deference to the states is why he has so rarely been rebuked by the Supreme Court (and why I’m encouraged by the fact that Trump has been able to virtually remake the judiciary with his numerous appointments below the Supreme Court level). By contrast, vaunted President Obama, who came to the White House hailed as a law professor specializing in the Constitution, was blocked by the Supreme Court more often than he was affirmed. As Ilya Shapiro noted in the Federalist, “Overall, the administration has managed a record of 79–96, a win rate of just above 45 percent.” His own appointed justices repeatedly voted against him.
Maybe it’s another case of the self-proclaimed experts tending toward arrogance, chafing to see what they can get away with. Trump wants to get the basic work of governing done.
Obama, while talking like someone eager to restore civil liberties purportedly eroded under President George W. Bush, oversaw the administration with the most aggressive record of persecuting and prosecuting leakers, whistle-blowers, and journalists since the early days of the republic and the excesses of the Alien and Sedition Acts.
With President Trump, we have traded a president and inner circle who knew what they could get away with for an administration that asks what needs to be done.
The MAGA Doctrine of limited government responsive to the people (and not just its ruling elite) is even yielding civil liberties benefits overseas. While the left tries to paint Trump as xenophobic and bigoted against Muslims, the Trump administration’s ambassadors overseas gently work to discourage anti-gay laws that can lead not to the mere denial of marriage licenses (as in the United States until recently) but to imprisonment and execution. Somehow that doesn’t stop the left reflexively claiming the Trump administration is oppressing gays (and everyone else). Reality doesn’t matter, just sticking to the old tried-and-true leftist talking points from bygone eras.
Trump, as noted earlier, is the first president to enter office already supporting gay marriage. Obama did not, though he, like Secretary of State Hillary Clinton before him, supported gay marriage once it became apparent it was politically expedient to do so, given changing priorities among Democrat voters.
The MAGA Doctrine keeps America on a steady course toward greater freedom, greater prosperity, and more limited government, while its critics shift in the wind and congratulate themselves for their evolving views.
While conventional politicians rarely have any larger problems in mind to tackle than winning the next election, the Trump administration dares to think big. One of the best ways to secure the Bill of Rights, and the rest of the Constitution, for future generations is to appoint great judges. Let’s look at how Trump has quietly been doing just that.