Author, Speaker, Instructor, Radio Host
I was in a recent meeting with a local church leader. The pastor and I have ideas on how to reach the black community, and so we met so that we could figure out how we can work together to spread the message of constitutional literacy. As a member of the black community, his programs are extensive, and incredibly successful. Politically, for the most part, we see eye to eye, but I am not sure his wife is in our camp, as well.
One of the programs my friend is working on focuses on human rights. His book for the seminars he's working on lists the human rights put forth by the United Nations. However, like me, he understands that it is not the job of any governmental body or organization to necessarily define, guarantee or enforce their version of what they think human rights are. Human Rights, like Civil Rights and Constitutional Rights, are not really what they seem, as provided by the academic and political world. In the long run, they are all Natural Rights, given by God, and they are a responsibility of the individuals of a community, and the body of Christ, to defend, protect, and promote - they are not the job of government to guarantee as currently defined.
While in discussion with my friend, and as I was throwing out constitutional bits and pieces, with my pastor friend grinning with each word, his wife blurted out, "Well, we have a President who doesn't understand the Constitution."
Out of respect, I decided not to get into a political discussion with my friend's wife as he and I were sitting there talking about the business of spreading constitutional literacy, but later on I asked a liberal leftist Democrat voting friend of mine what she meant, and he was more than happy to give me a list of Trump's alleged unconstitutional activities - of which I shot down rather easily.
Here they are:
1. With his travel ban he was acting without Congress.
Answer: The duty of the President, according to Article II of the U.S. Constitution is to "execute the laws of the United States." Among the laws he was carrying out was 8 U.S Code § 1182 under
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
2. With his travel ban the President has targeted Muslims, and the Constitution is clear that there shall be no religious tests.
Answer: The only place the term "religious test" appears in the U.S. Constitution is in Article VI., where it disallows religious tests regarding holding a political office. While Trump has not violated the religious test clause in the Constitution, the Democrats did when they challenged Trump's judicial nominations due to their adherence to their Christian Faith. The establishment clause of the 1st Amendment is often used in this argument, but the clause is being misrepresented. It's intent was to disallow the federal government from establishing a state church, not to disallow members of any particular group who may be considered dangerous to this country from entering as immigrants or refugees. That said, if "Islam" was the target religion for the purpose of banning a particular religion, all 55 (or is it 57?) Islamic majority countries in the world would be on the ban list, and North Korea wouldn't be.
3. Trump's immigration policies violates the 4th Amendment, which disallows unreasonable search and seizure.
Answer: First of all, the 4th Amendment applies to those who are under the full jurisdiction of the United States. While illegal aliens fall under basic jurisdiction because they are inside our borders, because they have not gained permission to be in this country in the first place, breaking federal law when they crossed the border illegally (making them federal fugitives) they have not achieved the necessary requirements to fall under the provisions of the U.S. Constitution. The fact that they broke constitutional immigration law (authorized by Article I, Section 9 of the U.S. Constitution), the primary focus must be for them to be apprehended for the crimes they have already committed. Search and seizure, and requesting what their immigration status is, are constitutional because a law was broken, and federal agencies have been given the authority to enforce those federal immigration laws.
4. The Constitution requires that the government provide due process to individuals in deportation proceedings.
Answer: Due process by the federal government applies to those who are under the full jurisdiction of the United States. The word "citizen" is used carefully in Article IV. and the 14th Amendment when referring to privileges and immunities. The 5th Amendment, however, states "No person," in reference to due process. In the case of invasion, of which illegal entry into the United States may be considered as (unwanted/illegal encroachment), according to Article I, Section 8 Congress has the authority to call forth the militia to repel invasions, and in Article IV., Section 4 the federal government is required to protect the States from invasion (which also supports securing the border, even with a wall, if necessary). That said, despite that due process is not necessarily required when dealing with non-citizen invaders, the opportunity for due process is actually being applied to those people apprehended for illegal entry into the United States. There are deportation hearings based on the evidence that the person entered the country illegally, with a judge presiding. Therefore, while not absolutely necessary, the Trump administration is providing due process for these persons.
5. Trump's surveillance of Americans in the name of stopping Islamic Terrorism violates the 1st, 4th, and 5th Amendments.
Answer: Were those people opposed to such surveillance not bothered by it while the Obama administration carried out similar strategies? In the case of the Democrats time in power, they also surveilled who they deemed to be political enemies in the Republican Party and Tea Party, as well. There is a fine line between our individual liberties regarding privacy, and national security. However, much of what is involved in federal surveillance largely involves using algorithms to scan public information available because the persons made it available to the public. In other words, you cannot scream the government is invading your privacy when they gained the information by scanning what you put out of Facebook, or through the use of a public utility. While there are some methods being used in the name of National Security that border on unacceptable, for the most part the systems in place do not invade our personal "persons, houses, papers, and effects."
6. Targeting Muslims, such as sending more federal officers into Muslim neighborhoods to search for alleged terrorist activity, is religious profiling and violates the 1st Amendment which states the federal government cannot prohibit the free exercise of religion.
Answer: First of all, Islam is a political ideology that masks itself as a religion. That said, breaking the law in the name of religion, or acting as a national security threat in the name of a religion still makes that group one that breaks the law or is a national security threat. If a religion emerged that claimed human sacrifice of virgin girls was a part of their religion, should the government say, "well, can't stop them from murdering people if it is a part of their religion"? Of course not. The rule of law is the rule of law. If 99% of the world's terrorism is currently being committed by persons claiming to be Muslim, then it is in our best interest to be aware of that fact, and to take the appropriate steps to ensure that terrorism in that community does not become a threat to the public safety of the American People - regardless of the fact that they claim their jihadist activities are a part of their religion.
7. Trump's position on Torture violates the 1st, 5th, and 8th Amendments.
Answer: Article I, Section 8 places the decision regarding methods of information retrieval the hard left calls "torture" in the hands of Congress: To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations ... make Rules concerning Captures on Land and Water." The 1st and 5th Amendments do not apply to non-citizen prisoner captures in the theater of war. The 8th Amendment also does not apply, but in truth, the "cruel and unusual punishment" line establishes that torture is not torture if it is the norm regarding a particular situation. The question is, when it comes to if something is excessive, it is excessive if it goes beyond what is considered to be the norm. Personally, I don't categorize things like water boarding "torture," and if the information retrieval method saves countless American lives because of the information obtained by that method, isn't it worth it?
8. Trump wants to use libel laws to interfere with the Freedom of the Press.
Answer: Freedom of the Press is important, but only if done so in a legal manner. If laws are being broken be it through dishonest reporting or unlawful exposure of classified information, then it is not Freedom of the Press, it is libel, or worse, and should be prosecuted.
Feel free to send more, if you wish, and I will be glad to defend them, as well.
While I do not believe Trump understands the Constitution as well as Ronald Reagan or Calvin Coolidge did, the idea that he is blatantly against the Constitution, especially when compared to the two Democrats to hold office since Reagan, is absolute poppycock.
Overall, Trump has interestingly stayed largely on the right side of the Constitution.
-- Political Pistachio Conservative News and Commentary
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