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Constitutional Originalists Against Trump

Monday, October 17, 2016 8:57
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Today a group of 29 leading libertarian and conservative advocates of constitutional originalism signed their names to a statement titled “Originalists Against Trump.” It begins, “We, the undersigned lawyers and scholars, are committed to the original meaning of the Constitution of the United States. We write to oppose the election of Donald Trump.”

There are some impressive names on this list. Among them are Northwestern law professor Steven Calabresi, one of the original founders of the Federalist Society; Case Western Reserve law professor Jonathan Adler, one of the intellectual architects behind the 2015 Obamacare legal challenge in King v. Burwell; and New York University law professor Richard Epstein, author of the highly influential 1985 book Takings: Private Property and the Power of Eminent Domain.

Why do they oppose Trump? Here’s what they have to say:

Trump’s long record of statements and conduct, in his campaign and in his business career, have shown him indifferent or hostile to the Constitution’s basic features—including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law.

But what about the Supreme Court?

We also understand the argument that Trump will nominate qualified judicial candidates who will themselves be committed to the Constitution and the rule of law. Notwithstanding those he has already named, we do not trust him to do so. More importantly, we do not trust him to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part.

But what about Hillary Clinton?

We are under no illusions about the choices posed by this election—or about whether Hillary Clinton, were she elected, would be any friend to originalism. Yet our country’s commitment to its Constitution is not so fragile that it can be undone by a single administration or a single court. Originalism has faced setbacks before; it has recovered. Whoever wins in November, it will do so again.

Originalism is a commitment to the Constitution, not to any one political party. And not every person who professes support for originalism is therefore prepared to be President. We happen to see Trump as uniquely unsuited to the office, and we will not be voting for him.

Read the complete statement here.

There is one name that I was surprised to find missing from the “Originalists Against Trump” list. That’s the name of Alan Gura. Gura is perhaps the single most influential originalist lawyer at work in America today. In 2008 Gura argued and won District of Columbia v. Heller, the landmark Supreme Court case in which the Second Amendment was recognized as an individual right. Two years later, Gura argued and won McDonald v. City of Chicago, the landmark Supreme Court case in which the Second Amendment was applied against the states via the 14th Amendment. And, to say the least, Gura is no fan of Trump. Here’s a snippet of what Gura recently told me about whether or not SCOTUS is a good reason to support the GOP candidate:

Donald Trump has effectively identified the horrific prospect of Hillary Clinton appointing at least one and perhaps several Supreme Court justices, to say nothing of the lower courts. But shall we entrust that task to an insecure lunatic, a fascist caudillo, an autarkist, a proud ignoramous and conspiracy theorist, the aspiring leader of a “Workers’ Party” who plays footsie with racists and anti-Semites and might well be a Russian agent? I have no illusions about what Hillary would do to the federal bench. Sad! But there is something deeply contradictory about the notion of electing a power-hungry strongman on the theory that he’ll appoint judges that respect and enforce constitutional limits on government. Did Hugo Chavez appoint great judges? Did Putin, Mussolini, or Erdogan? Would it have mattered had they sort-of kinda suggested that they would?

Related: My thoughts on why Trump can’t be trusted on Supreme Court appointments.


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