Friday, May 13, 2016

No, Trump is not a menace to the Constitution

Josh Blackman, a con law professor who supported Rand Paul and Ted Cruz, claims in the National Review that "Trump has already promised that he will knowingly break the law and violate the Constitution," because his views on constitutional matters are not exactly the same as Blackman's.  But one can be a perfectly good constitutionalist and hold the Times v. Sullivan is bad law (it is certainly inconsistent with the Founders' understanding of the relation between state libel laws and the First Amendment.) Likewise with Kelo, which simply means that judges should defer to the judgment of elected officials on what constitutes public use, And, finally on Japanese internment, to quote Judge Posner, "Korematsu was rightly decided."
      As for the rest of Blackman's complaints, no doubt President Trump will exercise his constitutional powers to try to move things his way, whether that is by executive action, speechifying, proposing legislation, or having the Trump Administration's lawyers make the appropriate arguments in the courts. Trump's promises on constitutional matters are best understood as statements of direction and principle rather than marching orders. That is how candidates in the US always talk, as if they are going to be able to by themselves what they have to move the whole apparatus of government and public opinion to accomplish.  

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