The brief manifesto of the “Originalists Against Trump,” published on Monday, is decidedly odd and unconvincing.
The group of law professors and others make the case that Donald Trump is uniquely unqualified for the office of the presidency, and they offer several reasons, all of which have merit.
As the name they’ve given themselves makes plain, however, the primary argument of the Originalists is that Trump cannot be trusted to preserve the basic features of the Constitution. These, they say, include, “a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law.”
So far, so — so-so.
They’re right, as far as they go. But they don’t go very far. Although the Orignalists say they’re under no illusions about Hillary Clinton, they somehow don’t actually compare the originalist case against her with the one against Trump. On every one of the basic features of the Constitution they cite, Clinton is at least as dangerous as her Republican opponent.
The due process of law? Her illegal email server and her lies about it make plain that she operates outside the law whenever it seems to her convenient. Freedom of speech? She wants Citizens United overturned. Religious liberty? She supports Obamacare’s birth control mandate. One could go on.
The Originalists’ politically astute aim is to undermine the single most persuasive argument cited in Trump’s support — that he would prevent Clinton from locking in a left-liberal majority on the Supreme Court for a generation. They say that despite having produced a list of originalist judges from which he would choose his nominees, Trump cannot be trusted to pick from that list once he’s securely in the Oval Office.
That’s true, we can’t know for sure. But nor is there good reason to think he won’t pick from that list. After all, it’s his list. And it’s a whole lot better than the list Clinton has in her back pocket. We know she would nominate judges hostile to originalism who would legislate in a leftward direction from the bench. If Trump wins the White House, he will also likely have GOP congressional majorities that can hold him to names on the list he’s given.
The Originalist case amounts to saying that because we can’t be sure Trump would be better on judges than Clinton, we should prevent his election even if it means (as it does) that we elect someone we know will be entirely hostile to the judicial principles they want to protect. That Trump will betray his promise is a possibility. Let’s stretch, for the sake of discussion, and say it’s a probability. Why is the possibility or probability of his terrible choices somehow worse than the certainty of hers?
Then we get to perhaps the oddest bit of the Originalists’ argument. Immediately after making it clear that they have no illusions about Clinton, they write, “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.”
Weren’t they just saying that the country and its Constitution must be protected from even a single term of President Trump? Surely, what’s good for the gander is good for the goose, no? How can the strength of America’s commitment to the Constitution be an excuse for electing Clinton, but fail to hold up as a defense for electing Trump?
If you want to defeat Trump, it’s good politics to attack the main reason that thoughtful people will, holding their noses, vote for him. But it’s a poor argument. Either Trump or Clinton and no one else will be president. That’s an awful choice but, from the originalist perspective, the Originalists have made the wrong one.
