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Trump and the Constitution

President Trump’s recent executive order banning travel from seven Muslim-majority countries has provoked outrage and protests on the left, and approval, mostly, from the right. Trump supporters see the executive order as fulfilling a hallmark campaign promise and protecting the United States from the threat of terrorism.

But is the executive order constitutional? The likely answer is no, on a number of grounds. The order raises concerns related to the 14th Amendment’s Equal Protection clause, which protects people from discrimination on the basis of their religious belief. 

Importantly, the Supreme Court has ruled that Equal Protection extends to both overt and concealed animus against a religious group. The Trump administration’s sidestepping and evasion around the terminology of the executive order (Muslim ban? Travel ban? A ban at all?) is likely not to matter much in the eyes of the nation’s courts.

Equal Protection has been previously understood by the Supreme Court as applying to both citizens and non-citizens, as well as green card holders, visa holders, and refugees. Legal commentators have even raised the possibility that Equal Protection may protect those not currently on U.S. soil, as the clause applies to the intention of government officials. Are officials’ actions in relation to the executive order animated by discriminatory motives? If so, they may be acting unconstitutionally.

The executive order also poses a problem in relation to the First Amendment’s Establishment clause, which prohibits policies favoring one religion over another. The executive order mandates Homeland Security “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion.” This has been widely interpreted — including by Trump himself — to refer to members of the Syrian Christian community. It therefore violates the Establishment Clause.

Finally, in the implementation of the order at American airports, border officials have contravened the Fifth Amendment’s guarantee of due process. By detaining people without allowing them due process of law, they have deprived them of the liberty guaranteed them by the Constitution. This was the crux of the American Civil Liberties Union’s successful late-night lawsuit, which asked New York’s Eastern District court to provide a writ of habeas corpus to free their defendants from unlawful detention.

Perhaps more important, though, is whether the unconstitutionality of Trump’s executive order will matter in the eyes of his supporters. Will Trump’s violation of the Constitution ultimately change his supporters’ feelings about him? How much does the Constitution matter in our current national political conversation, bitter and divided as it is?

It has the potential to matter a great deal. One of the Tea Party’s founding principles is popular constitutionalism: the idea that the Constitution was not only to be read and studied by Supreme Court justices, but by Us, the People. 

The Tea Party offers a suite of educational services to help ordinary people study the document for themselves. They will provide resources to help you set up a self-study Constitutional Academy in your neighborhood. They offer an Adopt a School program, to help implement a Constitutional Educational Program in your local public school. They hold seminars and documentary film screenings to learn about the historical context of the Constitution. 

Progressives might disagree with Tea Partiers’ interpretation of the Constitution, but it’s hard to disagree with Thomas Jefferson’s words proudly displayed on their website: “The only true corrective of Constitutional abuses is education.”

The study of the Constitution, American political history, and civic government is not only for politicians and justices, and certainly not only for Tea Partiers. The communities that form around these civic education projects are meaningful and effective. After all, Sarah Palin began her political career by serving on her local PTA. Progressive grassroots political organizations like Indivisible are attempting to replicate the Tea Party’s success in pressuring Congress to listen to a “small but vocal group of dedicated constituents.” But these electoral politics are most effective when matched with grassroots civics education.

The point was made most powerfully by Khizr Khan, the father of a Muslim American soldier who was killed in Iraq, while speaking at the Democratic National Convention last summer. Questioning Trump’s campaign rhetoric about Muslims, he asked Trump: “Have you even read the U.S. Constitution?” as he brandished his pocket version. The ACLU then offered their pocket version for free, to meet the unprecedented public demand for the document.

At the heart of the outpouring of protest against Trump’s executive order is a deeply held American ideal that we do not discriminate on the basis of religious belief. This is enshrined in our Constitution. The study of the Constitution is open to everyone. The defense of its laws and values must be more important than the defense of the individual who happens to be sitting in the Oval Office.

 

Erin Maglaque grew up in Sharon, graduated from Housatonic Valley Regional High School in 2005, and is now a historian at the University of Oxford.