It’s been more than a week since Originalists Against Trump issued their public statement opposing the election of Donald Trump. William Baude of the University of Chicago Law School and Stephen Sachs of Duke Law School organized the project; both worked on drafts of the statement, and Sachs also collected signatures from lawyers and scholars. Twenty-nine signed the statement. That number has risen to 60, with more likely to come.
The signatories describe themselves as “originalists.” As such they are “committed to the original meaning of the Constitution.” They do not say how the original meaning is discerned in a particular context, but in the common understanding of most originalists today (or at least in Justice Antonin Scalia’s, the leading originalist of our time) it is pursued by asking how the text at issue was understood by the society that adopted it.
In an interview, Sachs is keen to distinguish between law and politics, especially since the statement does makes a point about who should be elected president. “I don’t believe the statement takes any specific position on the role of originalism in politics except to suggest that a commitment to the original Constitution should affect how we vote.”
And how should it affect consideration of Trump? Originalists Against observes that the Constitution vests in a single person the executive power of the United States but contends that “we would not vest that power in Donald Trump,” in light of his “character, judgment, and temperament.”
Originalists Against also doubts that Trump would do as the president’s oath of office (itself in the Constitution) requires, and protect the Constitution. Trump has “shown [himself to be] 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 statement identifies several instances of this constitutionally indifferent and hostile Trump. The president must take care that the laws be faithfully executed, but Trump admires dictators as above the law. The president must hold a public trust on behalf of all Americans, but Trump courts those who would deny to others the equal protection of the laws. The president must preserve, protect, and defend the Constitution, but Trump has treated the legal system as a tool for arbitrary and discriminatory ends, especially against those who criticize him or his policies.
The statement also treats the president’s constitutional authority to nominate judges. Trump says he will pick individuals with views of judging like Scalia’s to the Supreme Court and the lower courts. Advised by the Federalist Society and the Heritage Foundation, he has compiled a list of 21 prospects for the Supreme Court among whom he could choose in filling vacancies, starting with Scalia’s seat.
No one thinks Hillary Clinton will nominate originalist judges. Judicial selection is nonetheless a ground for Originalists Against’s opposition to Trump’s election. The problem would not appear to be with any of the 21 on his list—the originalists have not doubted them—but with Trump himself, whom they do not trust to do what he says. Here again character is the concern.
Originalists Against thus are willing to accept a Clinton presidency even if that means a Clinton Court. Says the statement: “Our country’s commitment to our 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.”
Originalists Against also does not trust Trump to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part.” Here the signatories recognize that because a constitutional government is necessarily a limited government, political actors may not simply do as they wish.
Sachs says he hasn’t heard from the Trump campaign. And the statement by the originalists isn’t likely to have much impact, at least not this election season. But it could benefit the country in the long run if people started thinking constitutionally about candidates for office and how they govern under our supreme law. That would be a step up from some of the topics preoccupying the candidates in this, Sachs laments, “terrible election year.”
