Sorry for the delay, here is the next part in my series. I am going to primarily focus on Donald Trump and the Constitution. For the past 8 years, I have heard nothing but consistent attacks on Barack Obama for violating the Constitution, as well as consistent claims from conservatives that they are merely upholding the Constitution when they withhold their support for him. I’m going to look at some (not all) of the times Donald Trump has advocated for violating the Amendments in our constitution.
Note: This does not even include other portions of the Constitution that Donald Trump has called on to violate throughout his campaign.
On the surveillance of mosques
Trump on a Muslim database (I’m ambivalent on whether he called for a Muslim database)
First Amendment violations
Muslim ban: The ban on Donald Trump’s website states the following:
Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.
As the American Civil Liberties Union notes in their report, “The Trump Memos”, a policy that excludes members of a particular religion would violate the Establishment Clause of the First Amendment. This is based on the precedent in L:arson v. Valente.
It could potentially be a violation of the 1st Amendment based on the rights of religion, speech, and peaceful associations, as well. It would be challenged almost immediately.
Profiling Muslims: Free Exercise and Establishment Clauses would likely be violated, as well as the freedom of expression . The Supreme Court has previously ruled that the government would have to show a compelling interest otherwise it would be invalid. The Supreme Court further wrote, “a law targeting religious beliefs as such is never permissible.” The Establishment clause continues to prohibit the government from enacting a law or policy that favors one religion over another. Further the government cannot pass laws to prohibit speech just because they disapprove of the ideas.
Shutting down mosques and surveillance of mosques: Both of these would violate the First Amendment under both the Free Exercise and Establishment Clauses.
Libel laws: There is no federal libel law. They are administered by the state and are constrained by the First Amendment. Libel laws are purposely constrained so that our political discourse is not hampered. There has to be proof of actual malice.
NSA and PATRIOT Act: Storing bulk metadata of phone calls is a violation of the First Amendment as, the ACLU notes, “it vacuumed up sensitive information about Americans’ associational and expressive activities.”
Banning media outlets: Trump has repeatedly banned media outlets from covering his campaign. Press bans would infringe on the right of a free press.
Second Amendment violations
Stop and frisk: When trying to defend the indefensibile policy of stop and frisk, Trump stated,”you know, [the police are] proactive and if they see a person possibly with a gun or they think may have a gun, they will see the person and they’ll look and they’ll take the gun away.”
That’s actual gun grabbing of individuals without any way of determining whether they legally have a gun. States pass laws including conceal-carry and open carry. Grabbing people’s guns as part of a stop and frisk policy seems problematic.
No fly, no buy: I’ve written about this before but “no fly, no buy” is both a violation of the 2nd and 5th Amendments.
Third Amendment violations:
Mass deportations: This is the only speculative violation on my list. There’s not a lot of case law on the Third Amendment. But in Engblom v. Carey, the Second Circuit Court of Appeals ruled that a member of the National Guard is considered a soldier so housing the National Guard without consent would be a violation of the Third Amendment. In order to effectively deport the 11 million undocumented immigrants out of the United States, the federal government would have to exponentially increase the number of immigration service agents or they could help rely on the National Guard to enforce the deportations. If the National Guard take up residence in an immigrant community without consent, this would be a blatant violation of the Third Amendment.
Fourth Amendment violations
Mass deportations: Trump has repeatedly called for mass deportations of the 11 million undocumented immigrants that are currently in the United States. Of course, undocumented immigrants are hard to distinguish between legal immigrants. Now, we wait until they come into contact with the criminal justice system. To weed out undocumented immigrants, we would need a massive increase in the number of border patrol agents and immigration service agents. This would also likely lead to an increase in suspicionless interrogations and arrests, racially discriminatory traffic stops, warrantless searches of workplaces and homes, and warrantless home raids by law enforcement officials.
This is would almost certainly violate the 4th Amendment.
We’re not even getting into the possibility of warrantless wiretaps.
Profiling Muslims: Warrantless profiling, suspicionless interrogation, and warrantless wiretaps would likely violate the 4th Amendment, as well.
NSA and the PATRIOT Act: Warrantless recording of phone calls and e-mails is a violation of the 4th Amendment.
Killing ISIS family members: In 4th Amendment cases, including Tennessee v. Garner, the Supreme Court ruled:
“the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”
Stop and frisk: Warrantless or suspicionless stop and frisk would certainly be a violation of the 4th Amendment as it is racially applied in most jurisdictions.
Fifth Amendment violations
Muslim ban: Equal protection requirements apply to the federal government under the Fifth Amendment Due Process Clause. Denying citizens access to the country based on their religion would fail under the Due Process clause, as well.
Mass deportations: Mass deportations cannot happen as soon as Trump becomes, gulp, President. The government would still need to prove that the immigrant is not lawfully in the country. Otherwise it would be a violation of due process.
“Ending catch and release”: This would violate due process principles spelled out in the 5th Amendment. It has to follow certain procedural guidelines based on the ruling in Zadvydas v. Davis to make sure that it serves a legitimate purpose.
Muslim database: A requirement that would make every Muslim register with the government because of their religious beliefs would be a violation of the Privacy Act of 1974. If they lost any rights or liberties as a result of this database, it would fail on Due Process grounds.
Torture: The Due Process clause bars interrogation by torture.
Killing ISIS family members: Drone strikes on US citizens have been argued against as an expressed violation of the 5th Amendment’s due process clause. The Obama drone memo arguing against this, was an abomination.
Stop and frisk: Taking people’s guns away without any checks, probable cause, or proving allegations this would be a violation of due process.
No fly, no buy: No fly, no buy is a violation of the 5th Amendment.
Sixth Amendment violations
Mass deportations: The Supreme Court applied Sixth Amendment protections to immigrants in 2010 with the case of Padilla v. Kentucky. Immigrants facing interrogations from the “deportation force” would likely require that immigrants have the right to an attorney present. Without explicitly qualifying this, the deportation force would likely face violations of the Sixth Amendment. A fair and speedy trial with an immigration court already backlogged would likely not occur, as well.
Eighth Amendment violations
“Ending catch and release”: The American Civil Liberties Union has long argued that current immigration detention centers violate the 8th Amendment standards for “cruel and unusual punishment.” Detaining immigrants until they are deported are likely going to deteriorate conditions further.
Torture: This obviously violates the prohibition on cruel and unusual punishment. John Yoo and the Bush Administration’s claim about enhanced interrogation techniques have been largely discredited and the McCain-Feinstein Amendment has prohibited US government agencies and officials from using interrogation methods not listed in the Army Field Manual.
Killing ISIS family members: This would almost certainly constitute a cruel and unusual punishment for merely being a family member of someone who joined ISIS.
Ninth amendment Violations
Personal privacy: The Ninth Amendment was used in part of the Supreme Court’s ruling in Roe v. Wade which legalized abortion and struck down statutes of law that criminalized abortions. The Ninth Amendment was also used in Lawrence v. Texas and Obergefell v. Hodges. The Supreme court found that we do have a right to privacy from government intrusion. Criminalizing abortions (even though he has tried to walk it back) would likely be a violation of the Ninth Amendment.
Tenth Amendment violations
Stop and frisk: If Trump did actually try to set policy for all police departments in the country by instituting stop-and-frisk, this would be a major violation of the 10th Amendment. If he set his gun grabbing strategy like above, it would violate the state’s ability to pass gun legislation.
There are more violations of the 10th Amendment but they usually fall on the grounds of Trump trying to usurp state’s rights and powers.
Fourteenth Amendment violations:
Muslim ban: In Afroyim v. Rusk, the Supreme Court opined that “the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.” Equal protection requirements apply to the federal government under the 5th Amendment’s Due Process clause.
Birthright citizenship: I’ll have something longer on this belief, soon enough. Possibly a new project I’m working on. But Trump ending birthright citizenship is a blatant violation of the Fourteenth Amendment.
Fifteenth Amendment violations
Voter ID: Trump has supported the North Carolina voter ID law. The law was struck down as unconstitutional as being passed with discriminatory intent. It was passed, in part, to ensure that minority voters could not show up to vote. Hence, why I believe voter ID is unconstitutional.
Nineteenth Amendment violations
Voter ID: Demographics that vote for Democrats were explicitly targeted with voter ID laws. This includes women.
Twenty fourth Amendment Violations
Voter ID: While voter ID is not considered a poll tax by everyone, voter ID typically requires a fee to be able to obtain valid ID. Without paying this fee and without the ID, they will not be able to vote. This is an abstract version of a poll tax.
Twenty sixth Amendment violation
Voter ID: One of the ways that the North Carolina voter ID law targeted voters was to prevent potential voters from preregistering so that they would be able to vote after they had turned 18 and were eligible to vote. A support for North Carolina’s onerous voter ID bill is support for making it more difficult to vote.