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Street Roots • Jan. 20-26, 2017
Commentary
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Trump vs. the Constitution
*
On Jan. 5, Portland City Commissioner
¿tick Fish delivered this keynote speech to
students at the Classroom Law Fro^cFfi^'~i
annual *TO The People: The Citaen and
The Constitution'’competition. This essay
is a modified version o f his speech.
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all be openly taught and practiced/’
Now there’s a campaign tweet to
remember.
The opposition responded in kind: He’s
“a lying, warmongering fellow,” a “repulsive
pedant,” and “gross hypocrite” who
“behaved neither like a man nor like a
woman hut instead possessed a hideous
hermaphroditical character.”
Pretty awful, right?
As the students of history know, these
statements are from the bitter election of
1800. It featured two heavyweights: John
Adams and Thomas Jefferson.
Think of i t Barely 11 years after the
ratification of the Constitution, two of the
great architects of our democratic repubfic
were having a loud, vitriolic and personal
fight about the future of our country.
Some things never change.
It turns out that what we witnessed
during the dismal 2016 election isn’t an
aberration after all. It’s the continuation of a
debate, as old as the republic, about the
meaning and application of our Constitution.
n Jan. 20, Mr. Trump will place his
hand on a Bible and take an oath
prescribed by Article II, Section 1 of the
Constitution: “I do solemnly swear (or
affirm) that I will faithfully execute the
Office of President of the United States, and
will to thé best of my ability, preserve,
protect and defend the Constitution of the
T ooking forward, in the battle between
JL/the president and the Constitution, I
wouldn’t bet against the Constitution. But
we must remain vigilant That’s why I carry
a copy of the Constitution with me.
Last fall, I was honored to meet Mr. Khizr
Khan at the Muslim Educational T rust He
is the Gold Star father who electrified the
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United States.”
This oath reflects the genius of our
system - and reminds us that no president
is above the law. Let’s take a few minutes to
anticipate the new president’s first 100 days
and what the Constitution may have to say.
For starters, Mr. Trump has promised to ;
revoke most ofPresident Obama’s executive
orders. Tam, guessing that no one in this
room will lose any sleep if he does. Why?
Because nothing in Article II says he can’t.
But this is the low-hanging fruit.
Things will only get more interesting.
Let’s consider two other actions the
president-elect has said he would take.
During the campaign, there was a lot of
loose talk about Muslim bans, registries and
even camps.
The first line of defense against these
shocking proposals is the Bill of Rights. The
Establishment Clause of the First
Amendment prohibits the government from
disapproving or favoring any religion. Under
the due process and equal protection
clauses of the Fifth Amendment, the
government may not banish or prohibit a
citizen’s entry into the United States. And
under the 14th Amendment’s Equal
Protection Clause, the government may hot
target anyone because of her or his religion.
e live in challenging times. America is
Let s move to another hot-button issue.
more divided than ever before. Our
Mr. Trump does not think much of the
public debates are getting coarser, while media, and hé has threatened to “open up
civility and tolerance are casualties in our
our libel laws.” You know that is not likely to
partisan battles. People are losing
happen any time soon.
confidence in all of our public institutions.
, First of all, most claims for libel are
But my role is to not discourage you. To
decided in state, not federal, courts. Second,
the contrary, I am here to reassure you that
the Supreme Court, in New York Times v.
even in these difficult times, we are in good
Sullivan, interpreting the First Amendment,
hands.
ruled that a public person must prove
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et me begin with some statements
from a presidential election that may
fgo down as the most divisive in our
nation’s history.
Here is what one campaign said of the
opponent: “If he w ere to become the
president, we would see our wives and
da ugh ters the victims of legal pros titution. ”
And “murder, robbery, rape and incest will
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“actual malice” to make out a libel daim ~ à
very high bar.
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So unless the high court reverses a
50-year precedent or the states pass a
constitutional amendment, our new
president will find it difficult to erode the
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legal protections of a free press.
■
BY NICK FISH
C O N T R IB U T IN G W R ITE R
a
I am not talking about the president or
the Congress, No, I find my greatest solace
in a document that has endured for over
228 years - and in each of you. The students
in this room understand better than most
Americans the enduring strength of our
constitutional foundation.
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nation with his appearance at the
Democratic National Convention. He signed
a copy of the Constitution and gave it to me.
What a beautiful statem ent about our
country - a Muslim-American, a proud
immigrant from Pakistan, reminding all
Americans that the Constitution applies to
every one of us, equally.
And what a powerful reminder of the, ' J
civic heritage that binds together
Americans of all political persuasions.
Bernie supporters and Tea Party activists,
conservative legislators and card-carrying
members of the ACLU. We may be sharply
divided on the issues, but we share a
responsibility to defend our Constitution
and democracy.
n “Federalist 1,” Alexander Hamilton
wrote, “Of those men who have
overturned the liberties of republics, the
greatest number have begun their career by
paying an obsequious court to the people;
commencing demagogues, and ending
tyrants.”
I can think of no time when this
competition was more relevant The young
people in this room are not merely students
of the Constitution, but, mere importantly,
you are its newest champions.
John Adams once said, “Liberty cannot
be preserved without a general knowledge
among the people.” He was talking about
you. And we look ’to each of you to reach. ,
out across the ideological divides of the
moment and to find common ground with
others. And the place to start is our
Constitution.
You’ve taken the first important step.
Don’t stop now. We are counting on you.
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