Trump’s Act of War On The First Amendment

During his campaign, the combination of Mr. Trump’s actions and unconstitutional policy proposals amount to a declaration of war on several sections of the constitution. Trump policies that gut the first amendment alone are enough to warn us that Trump’s proposals violate core American values.

The most recent is his repeated call for ideological testing of immigrants or as he calls it, “extreme vetting.”

Trump first introduced his “extreme vetting” policy, during a Youngstown speech in August.

During an interview with Rachel Maddow during the same time period, Trump’s campaign manager acknowledged that ideological testing is unconstitutional.

Transcript exerpt via The Washington Post. (The transcript of the interview in its entirety can be read here.)

MADDOW: Let me ask one more specific on that. There’s this one from the Ohio speech, the terrorism speech, which I thought was just a fascinating turn, and it was on this issue of extreme vetting. What he’s describing as extreme vetting for people who want to emigrate to this country.
 
And what he said was, in the Cold War, we had an ideological screening test. The time is overdue to develop a new screening test for the threats we face today. What is that about? What’s the Cold War precedent for this extreme vetting that he’s talking about?
 
CONWAY: He’s basically saying, this is not the first time the country has done this, or that it has been done. That we’ve done this before, but for some reason, we’ve become lax. We don’t do it.
 
MADDOW: When did we do it before?
 
CONWAY: Well, he’s just saying, there’s a Cold War precedent. And …
 
MADDOW: But what is the Cold War precedent?
 
CONWAY: For vetting. And he’s saying that in this case, it’s that we — past is not necessarily prologue, but that when you are talking about vetting, people shouldn’t comment like, oh, my God, that’s a new situation.
 
What if we did vet people based on their ties to terrorism, if we did that a little bit better? I mean, is anybody arguing that we’re not letting people in the country right now who do have ties to terrorists?
 
MADDOW: The Cold War precedent for what he’s talking about was an ideological vetting. He’s saying we want ideological vetting of people. That did exist in the Cold War, in the early ’50s, it was called the McCarran Act, which I’m sure you know.
 
CONWAY: Sure.
 
MADDOW: And Truman vetoed it and then Congress was able to pass it some other way. But what survived very famously was thrown out by the United States Supreme Court because it was ruled to be unconstitutional.
 
So there is a Cold War precedent for ideological vetting of immigrants. In that case, it was to stop communist front groups. But it didn’t pass constitutional muster, and we’ve never had anything like that since that ever has passed constitutional muster.
 
So what he’s asking for is a new extreme vetting system, which has previously been tried and ruled unconstitutional and we abandoned it half a century ago.
 
CONWAY: Sixty-some years ago, right?
 
MADDOW: Yes. So that’s a hard case — so I want the pivot on substance to happen too. I really do. But the substance …
 
CONWAY: Like four issues a week now though that he’s talking about. He really doesn’t …
 
(CROSSTALK)
 
MADDOW: But he has to make sense. He has to make sense when he makes these policy pivots in order for them to be successful.
 
CONWAY: Well, it sounds like you disagree with the policy, and that’s fine. And …
 
(CROSSTALK)
 
MADDOW: No, you can’t have a McCarran Act now, it’s unconstitutional.
 
CONWAY: But that’s my point too. People can look at it and say, this is ridiculous, that’s unconstitutional, you can’t have that, or they can say, that may work, and I’d like to hear more about it.

Indeed, the Supreme Court held that ideological tests of people entering the United States is unconstitutional in Kleindienst v. Mandel 408 U.S. 753 (1972)

The question is whether §§ 212(a)(28)(D) and (G)(v) and § 212(d)(3)(A) of the Immigration and Nationality Act of 1952, 66 Stat. 182, 8 U.S.C. §§ 1182(a)(28)(D) and (G)(v) and § 1182(d)(3)(A), providing that certain aliens “shall be ineligible to receive visas and shall be excluded from admission into the United States” unless the Attorney General, in his discretion, upon recommendation by the Secretary of State or a consular officer, waives inadmissibility and approves temporary admission, are unconstitutional as applied here in that they deprive American citizens of freedom of speech guaranteed by the First Amendment.

Trump’s attacks on press freedom attack a core principle of the America envisioned by the Founding Fathers.

James Madison famously said:

A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.

The combination of Trump’s desire to loosen libel laws, his sort of temporary bans on media outlets because they asked questions he didn’t like and his call for arresting the media for “inciting violence,” should be a wake up call to Americans who value the fundamental principles on which America was built.

As Sarah Jones observed, the first amendment’s protection of speech and expression is “central” to our political system.

Aside from policies contradicting free speech and press freedom, Trump’s rhetoric indicates his views on religious freedom. This is not limited to his from his ever evolving proposal to ban Muslims from entering the country. Trump intends to track American Muslims and have databases on them solely based on the fact that they are Muslim. Trump reinforced this on Monday, in response to the weekend bombings in New York and New Jersey.

“Our local police, they know who a lot of these people are. They’re afraid to do anything about it because they don’t want to be accused of profiling,” Donald Trump told Fox & Friends Monday morning. “You know, in Israel they profile. They’ve done an unbelievable job, as good as you can do.”

Trump’s disregard for the separation of church and state is reflected in his promise to repeal the ban on tax exempt churches endorsing candidates.

“The first thing we have to do is give our churches their voice back – it’s been taken away,” Trump said to cheers and applause, joking “I figure it’s the only way I’m getting to heaven.”

Trump has declared war on core principles in the Constitution with his actions, his policy proposals and his rhetoric.