Abstract
In August 2016, as Donald Trump ramped up his presidential campaign, a local TV show from Providence, Rhode Island, invited me to appear and offer commentary as a guest. 1 The show’s host was a locally well-known conservative, so I anticipated a hostile reaction to my ideas. But I wanted to use my platform to shift the conversation from parsing the good or bad of Trump’s proposals to pointing out the threat Trump presented to our constitutional democracy itself. I couldn’t accomplish this goal by writing another journal article. I needed to reach Trump’s supporters, as well as voters who remained undecided. This show was the perfect place to connect with that audience.
When I appeared on-air, I anticipated a heated fight, but I found instead a host who shared my fears and worried about the Republican Party’s future. We dove into Trump’s platform and his campaign proposals to undermine constitutional rights. Afterward, the host suggested we continue our conversation and invited me to appear on his call-in radio show. But he warned that the audience’s response to my perspective would not be polite. For about two hours, we took calls from incredulous conservative radio listeners. We offered a crash course in civic education, but with some raised voices. Some callers began by attacking me. I was just a lefty Hillary Clinton supporter. Worse, I was a Brown University professor. The host pushed back against his own listeners, urging them to remember that I spoke as a constitutional scholar, not as a Clinton supporter. If they wanted him not to hang up on them, they needed to listen.
Together, the host and I walked conservative callers through the number of landmines that Trump’s campaign and rhetoric had set for the Constitution. I argued that Trump’s most extreme ideas were profoundly incompatible with the document and its core values. His commitment to a “total and complete shutdown of Muslims entering” the United States, or his promise to torture the families of suspected terrorists, threatened basic constitutional rights. We both tried to convince callers this was not a normal election between Democrats and Republicans. In return, the audience remained skeptical, but they listened. They asked great follow-up questions. After all, many of them were former supporters of the Republican Tea Party movement, which claimed a devotion to the Constitution. This was a commitment that many audience members felt reluctant to abandon.
After appearing on the radio, I wrote a follow-up piece for Politico called “Trump v. The Constitution: A Guide,” which offered a clause by clause match up of Trump’s proposals with their corresponding violations of the Constitution. 2 This article’s format replicated much of the back and forth I had with the callers on the radio show. The president took an oath to preserve, protect and defend the Constitution. But Trump embodied the opposite of the restraint required by the executive office. I aimed to show this one proposal and one clause at a time.
Of course, in time, the electorate rejected the argument of that op-ed, and we were all faced with the bleak possibility that some of these proposals would become actual policy. When Trump turned his travel ban from a campaign promise into an executive order, I wrote another op-ed for Politico that called on the Supreme Court to strike down the ban as unconstitutional. 3 The president has vast foreign policy powers, I argued, but they do not include the right to act based on anti-Muslim animus. I joined two colleagues and a lawyer to draft a more elaborate version of the argument for courts to consider as an amicus brief. 4 In the end, and after two more versions of the ban, the Supreme Court famously upheld it in Trump v. Hawaii. 5 Justice Sonia Sotomayor’s dissent quoted our brief, but Justice Anthony Kennedy, who we hoped would be the deciding fifth vote to strike it down, joined the majority.
So, were all my and others’ efforts to warn about Trump’s threats to the Constitution for naught, given the Court’s failure to stop him on this and other issues? Were our arguments wrong? Of course not. The preservation of fundamental constitutional rights remains an ongoing battle. Crucial in the outcome of that conflict is the embrace of these values by citizens. This embrace is more important than what presidents say or what courts decide. And it’s why I remain interested in authoring op-eds to engage with the general public, rather than only writing journal articles, amicus briefs, or law review articles in the hope of being cited by the courts. In a time when the courts and other public officials feel comfortable trampling on basic constitutional rights, it is especially imperative that citizens speak out to defend them.
The idea that citizens can effectively challenge a president’s violations of constitutional rights is a lofty ideal, but an achievable one. My next book points to a pattern of citizens successfully appealing to the Constitution when presidents have challenged their basic rights. I profile historical figures such as William Duane, Frederick Douglass, and William Monroe Trotter, who all wrote impassioned newspaper articles that called out presidents for constitutional violations. More effectively than lawyers or Supreme Court justices, these individuals held the most powerful men in the country accountable on the vital issues of free speech and equal protection. And most significantly, these citizens won their battles—by persuading either presidents themselves, the electorate who then voted them out of office, or subsequent presidents who later vindicated their arguments.
Of course, our op-eds may not achieve progress on the scale of the work of those seminal citizens. But in speaking about constitutional violations, these individuals offer a model worth emulating. The Supreme Court’s decision to uphold the Muslim ban and its failure to stop Trump in other constitutional violations doesn’t speak to the futility of the Constitution. It speaks to the importance of citizens claiming the document for themselves against the powerful. Historically, op-eds are a way of holding the Constitution up against the abuses of the time.
Thankfully, I’m past the point in my career where I must seek tenure or ask peers to evaluate my work for promotion. I have looked over the past four years for other bell weathers for my work. The gratification of writing op-eds is that family members who are not academics can tell me if something I’ve written is obscure or not central to the injustices of the moment. And I take that as a proxy for writing about the Constitution for a wider audience. I wrote my last book, The Oath and the Office, in the second person, a kind of dialogue with citizens hoping to evaluate the constitutional commitments of presidents. 6 In my head, I was talking to my teenage daughter and her friends. I try to do the same in thinking about the audience for my op-eds. Teaching law to undergraduates helps frame the argument too. Students usually want to know what the Court said or thought about what the law is. But the best students also want to know what the Constitution rightly says. They light up reading Ida B. Wells or Douglass more than Justice Antonin Scalia. Convincing courts about constitutional violations matters, of course, but ultimately, I have little faith in the Court as a reliable firewall against attacks on the Constitution. If we fail to persuade the American people about the basic rights that made up a constitutional democracy, the system we have might be too weak to survive.
