The MAGA Doctrine Page 15
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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
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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.
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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
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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.
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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
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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
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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 t
he 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
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The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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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
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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.
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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.
Chapter 14
Judicial Legacy
In addition to his two fantastic Supreme Court appointees, Neil Gorsuch and Brett Kavanaugh (the latter still plagued by the left’s obsessive attacks on his alleged youthful behavior), Trump has been appointing good judges at all levels of the federal judiciary—over 150 as of late 2019.