- - Monday, September 12, 2016

The United States Constitution establishes the framework for American government and reflects the fundamental principles and values of the nation. It is, therefore, no surprise that it is often a central part of the discussion during presidential election years. The 2016 election has been no exception. There is, perhaps, no clearer indicator of just how important the Constitution is to this election cycle than the fact that shortly following an emotional speech by Gold Star parent Khizr Khan at the Democratic National Convention, “Pocket Constitution” surged to the No. 2 best-seller slot on Amazon.com, second only to the new Harry Potter book.

Several constitutional topics have come to the fore during this election year — I will cover in turn how the major candidates view each of these topics. They include: the United States Supreme Court, executive power, the Second Amendment, the press and religion clauses of the First Amendment, and the 14th Amendment.

The United States Supreme Court

With the sudden death of U.S. Supreme Court Justice Antonin Scalia in February 2016, the Supreme Court became a central concern in the 2016 presidential election. President Barack Obama nominated Judge Merrick Garland, United States Court of Appeals for the D.C. Circuit, to fill the vacancy left by Justice Scalia’s passing.

Senate Republicans vowed to block any nomination made until after the presidential election — setting up a constitutional confrontation between President Obama and the Senate on Supreme Court nominations. Article II, Section 2 of the United States Constitution states that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.”

On the question of President Obama’s nomination of Merrick Garland, the two major party presidential candidates have taken the side of their respective parties in the Senate. Donald Trump, the Republican nominee, has said he is “pretty much in line with what the Republicans are saying.” Hillary Clinton, on the other hand, believes “it’s up to members of the Senate to meet their own, and perform the Constitutional duty they swore to undertake. This Senate has almost a full year to consider and confirm Judge Garland. It should begin that work immediately by giving Judge Garland a full and fair hearing, followed by a vote.”

The two candidates also differ dramatically on the type of justice they would nominate to the Supreme Court. With Donald Trump saying “We want smart, conservative, and we want people that are truly in love with the Constitution.” And, Hillary Clinton, in contrast, stating she would appoint justices that would “protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections.”

Executive Power

Throughout his eight years in office, President Obama used significant acts of executive power. He intervened in Libya, refused to defend the Defense of Marriage Act (DOMA) before the Supreme Court, enacted new immigration policy by choosing not to enforce immigration laws against certain groups (arguing he has discretion in how laws are enforced), promulgated new climate regulation, made recess appointments (the Supreme Court ruled these were invalid in NLRB v. Noel Canning), and took actions related to National Security Agency surveillance, among other things. His executive actions on immigration, in particular, have become a hot button issue in the 2016 presidential contest.

Donald Trump has stated that he “will immediately terminate President Obama’s illegal executive order on immigration.” He has also lamented what he views as the president’s overreliance on executive action, claiming that “[t]he problem with executive authority for the president, it’s really bad news for this reason. Since he’s given up on working with Congress, he thinks he can impose anything he wants. He’s not a king. He’s a president. An executive order should be used frankly in consolidation and with consulting with the leadership in the — in the Congress.”

Hillary Clinton, on the other hand, has said that she is “going to back and support what President Obama has done to protect DREAMers and their families, to use executive action to prevent deportation.” She further stated that, “I have said that if we cannot get comprehensive immigration reform as we need, and as we should, with a real path to citizenship that will actually grow our economy — then I will go as far as I can, even beyond President Obama, to make sure law-abiding, decent, hard-working people in this country are not ripped away from their families.”

Clinton points to congressional inaction and obstruction and robust presidential authority as reasons for presidents to engage in executive action on their own. And while she has acknowledged that the system is designed to sometimes go slowly and deliberately, there must be compromise and the government must produce results. She has said, “Our system is set up to make it difficult. Checks and balances. Separation of powers. Our Founders knew if we were going to survive as the great democracy that they were creating, we had to have a system that kept the passions at bay. We had to have people who were willing to roll up their sleeves and compromise. We couldn’t have ideologues who were just hurling their rhetoric back and forth. We had to actually produce results. That hasn’t changed since George Washington.”

The Second Amendment

A number of high-profile shootings in the last several years have made the Second Amendment a central talking point for both major political parties. Donald Trump’s views are in line with those of most Republicans. He believes “The Second Amendment is a bedrock, natural right of the individual to defend self, family and property. It is a ridiculous notion to ever repeal it … The Second Amendment is [a] right, not a privilege. The small minority of anti-everything activists may be vocal, but we have facts — and the Constitution — on our side.”

Hillary Clinton, on the other hand, thinks the Supreme Court was wrong in District of Columbia v. Heller (2008), which held that the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. She has said, “We’ve got to say to the gun lobby, you know what, there is a constitutional right for people to own guns, but there’s also a constitutional right to life, liberty and the pursuit of happiness that enables us to have a safe country, where we are able to protect our children and others from this senseless gun violence.”

First Amendment — Religious Liberty

There are two central issues related to religious liberty that have been raised during the 2016 election. The first is related to Donald Trump’s proposed ban on Muslim immigrants to the United States, and the second involves state-based Religious Freedom Restoration Acts, several of which were proposed and/or passed into law after the Supreme Court’s decision on marriage equality. These laws, modeled after a 1993 federal statute, say that states cannot “substantially burden a person’s exercise of religion” unless it is furthering a “compelling government interest” and acting in the least restrictive way possible.

• Muslim Immigration Ban

Donald Trump has called for a ban on immigration from “areas of the world where there is a proven history of terrorism against the United States, Europe or our allies.” He had earlier in the election called for an outright ban on all Muslim immigrants, which provoked backlash not only amongst Democrats, but also from those in his own party. He has largely stood by his calls for barring many Muslim immigrants from entering the United States, and has maintained that it is about terrorism and not religion. His running mate, Indiana Gov. Mike Pence, prior to his selection as Trump’s vice presidential candidate, described the ban as “offensive” and “unconstitutional.”

Hillary Clinton feels that Trump’s call for a ban on Muslim immigrants violates core American principles. She has said, “It goes against everything we stand for as a nation founded on religious liberty.” She also feels that Trump’s rhetoric has “turned Americans against Americans, which is exactly what ISIS wants.”

• State Religious Freedom Restoration Acts (RFRAs)

While Donald Trump’s running mate Mike Pence has been at the center of the controversy over state Religious Freedom Restoration Acts, after dealing with the fallout from his signing and then scaling back of Indiana’s RFRA late last year, Donald Trump himself has been largely silent on the topic.

By contrast, other GOP candidates during the primary election were vocal in their support for the Indian RFRA. Ted Cruz, for example, said, “I want to commend Gov. Mike Pence for his support of religious freedom, especially in the face of fierce opposition. There was a time, not too long ago, when defending religious liberty enjoyed strong bipartisan support. Alas, today we are facing a concerted assault on the First Amendment, on the right of every American to seek out and worship God, according to the dictates of his or her conscience. Gov. Pence is holding the line to protect religious liberty in the Hoosier State. Indiana is giving voice to millions of courageous conservatives across this country who are deeply concerned about the ongoing attacks upon our personal liberties. I’m proud to stand with Mike, and I urge Americans to do the same.”

Hillary Clinton, on the other hand, has stated that these laws go “beyond protecting religion, [and] would permit unfair discrimination against #LGBT Americans.”

First Amendment Freedom of Speech and Press

Donald Trump has unnerved those both within and outside his political party by supporting a broadening of libel laws against the press and proposing censorship on the Internet. He has said as to libel laws: “One of the things I’m going to do if I win, and I hope we do, and we’re certainly leading, is 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.”

And regarding censorship on the Internet he has said “We’re losing a lot of people because of the internet. We have to see Bill Gates and a lot of different people that really understand what’s happening. We have to talk to them about, maybe in certain cases, closing that internet up in some ways. Somebody will say, ‘Oh freedom of speech, freedom of speech.’ These are foolish people.”

Donald Trump’s remarks were made in response to concerns regarding ISIS. This is an area in which there is some overlap between Trump and Clinton. Clinton has said, for example, “We’re going to have to have more support from our friends in the technology world to deny online space … Just as we have to destroy their would-be caliphate, we have to deny them online space … You’re going to hear all of the usual complaints — you know, ‘freedom of speech,’ etc.,” she said. “But if we truly are in a war against terrorism and we are truly looking for ways to shut off their funding, shut off the flow of foreign fighters, then we’ve got to shut off their means of communicating.”

Clinton has also called for a reversal of the Supreme Court’s decision in Citizens United — a position that some believe will curtail campaign speech, while others applaud it as commonsense campaign finance reform. She has vowed to “appoint Supreme Court justices who recognize that Citizens United is bad for America. And if necessary, I’ll fight for a constitutional amendment that overturns it.”

Fourteenth Amendment

Section 1 of the 14th Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Historically, this has been read as conferring citizenship to all persons born in the United States. This election cycle, Republican candidates, including Donald Trump, called for an end to birthright citizenship, claiming that “[t]his remains the biggest magnet for illegal immigration.” He has also stated that he believes that birthright citizenship is not mandated by the Constitution, stating “If you read and if you look, and if you go to the real scholars, like different people that I can give you, they will tell you. Somebody comes over and they have a baby on our border and it happens to be on this side of the border, we’re not mandated to take care of that baby. You do not have to change the Constitution.”

In response to Trump’s views on birthright citizenship, Hillary Clinton has said “It’s hard to imagine being more out of touch or out of date. But all the over-the-top rhetoric does throw the choice in this election into stark relief.”

As we enter the final leg of the 2016 presidential election, the Constitution will continue to be a central feature of the debate between Donald Trump and Hillary Clinton. To learn more about the history of the constitutional issues the candidates will debate in the weeks ahead, check out www.ConSource.org.

Julie Silverbrook is the executive director of The Constitutional Sources Project (ConSource.org), a nonprofit organization devoted to increasing understanding, facilitating research, and encouraging discussion of the U.S. Constitution by connecting individuals with the documentary history of its creation, ratification, and amendment. Julie holds a J.D. from William & Mary Law School. In 2015, she and venture capitalist Chuck Stetson founded the National Constitutional Literacy Campaign.

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