Donald Trump’s brash, non-political celebrity and outspoken approach have introduced, for better or worse depending on your perspective, a new dynamic in presidential politics. Prospective voters can choose from any number of hot button political topics and love or despise him for his position, or perhaps just as importantly, for the manner in which he articulates his positions. While I have personally enjoyed the metaphorical thumb he intentionally and repeatedly sticks into the eye of those who insist on political correctness, I have many concerns with regard to how he might govern. Chief among them is a concern that he doesn’t respect or understand the Constitution or its structural mechanisms which limit and disperse governmental power.
Trump made two public comments this week which perfectly illustrate the basis for my concern. In a CNN Town Hall this past Tuesday night, Trump was asked a question from the audience regarding what he considers to be the top three functions of the federal government. In response, he listed national security, healthcare and education, in that order. The following day Chris Matthews asked him how he would go about banning abortions. Trump didn’t have an answer, but the discussion led to a follow-up question regarding whether women who have an abortion should be punished, presumably through some criminal sanction. Trump asserted that yes, “there has to be some form of punishment”.
While I fully expect a statist Democrat candidate or an establishment Republican candidate to assert that the regulation of healthcare and education are properly within the powers of the federal government, I continue to hold out hope that the Republican Party might identify and nominate a candidate who not only understands, but appreciates that the federal government has only limited and specifically enumerated constitutional powers and that they decidedly do not include the regulation of health care or education. Though Trump ultimately stated that responsibility for education policy should be returned to the states, one gets the distinct impression that this opinion is based on something other than an understanding that the federal government has no legal authority in the education arena. That impression is bolstered by the fact that he continues to advocate for a substantial federal role in healthcare without any apparent regard for the question of constitutional authority.
Similarly, the abortion question is simply not a policy concern for any president who is a constitutionalist. Why? Because the regulation of abortion is exclusively within the constitutional authority of the states. Were Roe v. Wade overruled tomorrow, the question of abortion would return to individual state legislatures. If a state were to outlaw abortions, it would also determine whether women and/or doctors receiving or performing illegal abortions would be subject to criminal sanctions and, if so, what those sanctions would be. Simply, there is no constitutional role for a president in determining the legality of abortion or the penalty for violating any state law outlawing abortion. In the media aftermath of the abortion comment, Trump has clarified his initial comments to suggest that only doctors who perform illegal abortions should be punished and not the women who receive them. The clarification only reconfirms his misunderstanding – or disregard – of the Constitution’s limits on federal authority.
If we are ever to return the country to a condition of deep and widespread individual liberty, we must pursue constitutionalism. The separation of powers among the federal branches and between the federal government and the states left individuals in a far better position to protect and defend liberty than the current paradigm where so much unconstitutional power is concentrated in Washington, out of reach – often even out of sight – of the populace. The president is uniquely situated to lead the country toward constitutionalism while putting constitutionalism out front and center as a matter of public debate. Those who cherish liberty should seek and embrace a presidential candidate who understands and appreciates the Constitution and the manner in which it distributes governing authority and should shun any who promise to wield unconstitutional power, regardless of how appealing the policies advocated by that candidate may appear. Constitutionalism is the way to liberty in America. Any other path holds only the empty promise of temporary policy victories while maintaining the status quo of unconstitutional power consolidated in Washington. Any other path offers only diversion and a delay from the ultimate goal.
I’ll continue to keep an open mind with respect to Donald Trump. I’ll wait for him to demonstrate an understanding of the Constitution and a commitment to constitutionalism. So far, he has tended to demonstrate the opposite at most every opportunity.