Originalists Against Trump

With particular thanks to my friend and former constitutional law professor, Will Baude, I am honored and grateful to be a signatory to today’s “Originalists Against Trump” statement.  Signed by lawyers, legal scholars, and some other friends of liberty, the statement makes a brief but eloquent case against the fallacious notion that a President Donald Trump would behave in a constitutionally respectful and restrained manner.

Originalism, the dominant theory of constitutional exegesis in right-of-center circles since at least the founding of the Federalist Society in 1982, posits that the Constitution’s meaning is fixed and bound by—under the most common variant of originalism—the text’s original public meaning.  At the level of the U.S. Supreme Court, originalism is most frequently associated with the jurisprudences of Clarence Thomas and the late Antonin Scalia.

While all signatories oppose the election of Donald Trump as President of the United States, I of course speak only for myself when it comes to advice on which positive action to take at the voting booth this November.

For convenience, I have reproduced the full statement below.

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Originalists Against Trump

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.

Our Constitution vests in a single person the executive power of the United States. In light of his character, judgment, and temperament, we would not vest that power in Donald Trump.

Many Americans still support Trump in the belief that he will protect the Constitution. We understand that belief, but we do not share it. 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.

  • The President must take care that the laws be faithfully executed; he admires dictators as above the law.
  • The President must serve as Commander in Chief, enforcing rules for the government and regulation of the land and naval forces; he praises armed repression and makes light of the laws of war.
  • The President must hold a public trust on behalf of all Americans; he courts those who would deny to others the equal protection of the laws.
  • The President must preserve, protect, and defend the Constitution; he has treated the legal system as a tool for arbitrary and discriminatory ends, especially against those who criticize him or his policies.

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.

Whatever reasons there might be to support Donald Trump, the Constitution is not among them.

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.

We urge all like-minded Americans to vote their consciences in November. And we call on them, through their voices and their ballots, to deny the executive power of the United States to a man as unfit to wield it as Donald Trump.



Signatures

Prof. Jonathan H. Adler
Case Western Reserve University School of Law

Prof. William Baude
University of Chicago Law School

Prof. Josh Blackman
Houston College of Law

Prof. Steven G. Calabresi
Northwestern University Pritzker School of Law

Oren Cass
Domestic Policy Director, Romney-Ryan 2012

Prof. Bernard J. Dobski
Assumption College

Prof. Richard A. Epstein
New York University School of Law
Hoover Institution
University of Chicago Law School

Prof. Christopher Green
University of Mississippi School of Law

Josh Hammer
Attorney

Jameson Jones
Attorney

Prof. Richard Kay
University of Connecticut School of Law

Prof. Benjamin Kleinerman
James Madison College, Michigan State University

Prof. Stephen F. Knott
Author of Washington and Hamilton: The Alliance That Forged America

Yuval Levin
The Ethics and Public Policy Center

Prof. Nathan B. Oman
William & Mary Law School

Prof. Michael Stokes Paulsen
University of St. Thomas School of Law

Prof. David G. Post
Temple University Law School (ret.)

Prof. Jeremy A. Rabkin
Antonin Scalia Law School, George Mason University

Prof. Stephen E. Sachs
Duke University School of Law

Kristen Silverberg
Former U.S. Ambassador to the European Union

Prof. Steven D. Smith
University of San Diego School of Law

Prof. Stephen F. Smith
Notre Dame Law School

Prof. Ilya Somin
Antonin Scalia Law School, George Mason University

Prof. Kevin C. Walsh
University of Richmond School of Law

Adam White
Hoover Institution

Prof. Greg Weiner
Assumption College

Prof. Keith E. Whittington
Princeton University

George F. Will
Columnist

Prof. Michael P. Zuckert
University of Notre Dame

(Institutional affiliations are for identification purposes only; this statement does not represent the views of these or any other institutions. For further information or to be added as a signatory, please contact [email protected] .)

About the author

Josh Hammer

Texas-based conservative activist. Sen. Mike Lee/#CruzCrew alum. Constitution, free enterprise, liberty, sovereignty, moral clarity, counter-jihadism. Follow me on Twitter at @josh_hammer.

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