Late last week, I received an e-mail asking me what questions I would like the moderators to ask Donald Trump and Hillary Clinton in their upcoming (as this is written on 21 September) debate on the 26th. The debate is over, and, not having received an acknowledgement of my three suggested questions, I assume that my 3 questions will not be asked Mr. Trump. So I am asking them here, instead, on the theory that Mr. Trump can ignore and bloviate over my questions, regardless of the forum in which they are posed: a televised debate or a “Skeptic’s Collection” column. So the following are my questions:
o Mr. Trump, you have indicated publicly in the recent past that, as President, you would seek to “open up” libel laws to make it easier for a Trump Administration to sue, and recover damages from, media outlets that criticize your policies. Are you aware of the following, and if so, how would you propose to deal with …
… the NY Times v. Sullivan decision in which the Supreme Court ruled in 1964 that allegedly libelous allegations may even be false, and that, in any case, successfully suing for libel requires the demonstration of actual malice on the part of the publisher of the allegations? Given that mere disagreement on matters of policy does not suffice to demonstrate malice, how would you propose to make an accusation of actual malice on the part of a media outlet stick in a civil proceeding? Are you also aware that, in the late 1790s, under the Sedition Act, there was a statute on the books making “seditious libel” – essentially, criticizing the government verbally or in print – a criminally (i.e., not merely civilly) actionable offense? (Several people were convicted of seditious libel and jailed – but were summarily pardoned when Thomas Jefferson assumed the Presidency in 1801.) May we conclude that your advocacy of “open[ing] up” libel laws means that you advocate a return to some civil analogue of a late-1790s interpretation of the “abridgement” clause of the First Amendment?
o You have also argued that (1) the Fourteenth Amendment to the Constitution is “unconstitutional” and that, in any case, (2) the requirement of “due process” applies only to US citizens. Two sub-questions here:
(a) What exactly does it mean for a constitutional Amendment, agreed to according to any of the amendment procedures described under Article V, to be unconstitutional, in light of the Constitution’s own assertion that, once passed and ratified, such an Amendment “shall be valid to all intents and purposes, as part of this Constitution”? In other words, what sense does it make to say that the Constitution, or any part thereof, is unconstitutional? In what sense could “the supreme law of the land” – Article VI, clause 2 – be unlawful? Do you understand the difference between legislative law and constitutional law?
(b) As for the applicability of “due process” being restricted exclusively to American citizens, are you aware that in 1942 a group of saboteurs, acting on behalf of the government of Nazi Germany, landed on American soil in order to undertake a clandestine program of damage and destruction of American infrastructure – and that, when apprehended, they were tried by a military tribunal? Their conviction was upheld by the Supreme Court in Ex parte Quirin:
[T]he law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
The point is that, not only were the Quirin defendants not citizens of the United States -- these days, we would call them "undocumented immigrants" -- but they were enemy agents acting against the United States on behalf of a belligerent power during wartime. Notwithstanding, they were given due process. (I suppose it bears saying that the Civil War case of Ex parte Milligan does not apply, because Mr. Milligan was not an enemy combatant acting on behalf of a foreign government, and that the civilian courts were open and operating in 1861. As Mr. Justice Davis asserted for the Milligan majority “martial rule [over civilian defendants] can never exist when the courts are open".) The language of Section 1 of the Fourteenth Amendment is critical: “no person may be deprived of life, liberty, or property without due process of law” (boldface added). That is, all the "due process" clause requires is that the defendant be a person within the jurisdiction of the United States. Citizenship is not a requirement for the applicability of the “due process” clause, as cases like Quirin illustrate. The "due process" clause of the Fifth Amendment also uses "person" language.
o Finally, Mr. Trump, you have advocated that all Muslims, even American citizens who are Muslims, be required to carry, and presumably to produce on demand, identification cards designating their Muslim faith, and you have also asserted that you would advocate the closure of mosques -- not merely the apprehension of religious officials inciting violence -- but the closing of the entire mosque – if you were President. How would such a policy be consistent with the following …
(a) … the “free exercise” clause of the First Amendment to the Constitution? Would not such a policy amount to a kind of latter-day version of “the scarlet letter” for the affected individuals, and virtually an incitement to violence and discrimination on the part of certain citizens harboring an animus against Muslims? Would this not be, at least in a de facto sense, the infliction of punishment – for the “crime” of being a Muslim – in the absence of any criminal act, and with no due process, even if merely being a Muslim were a crime? In what sense may one be said to “free[ly] exercise” one’s faith if merely doing so would constitute de facto grounds for being designated as a criminal?
(b) You have never mentioned similar requirements that Christians, Jews, Sikhs, Hindus, Buddhists, etc., carry similar religious i.d. cards, only Muslims. Therefore, how and in what sense would a “Muslims-only” policy of religious identification – or a “Muslims-only” religious data base be consistent with the “equal protection” clause of the Fourteenth Amendment?
To the States, or any one of them, or any city of The States, Resist much, obey little;
Once unquestioning obedience, once fully enslaved;
Once fully enslaved, no nation, state, city, of this earth, ever afterward resumes its liberty.
-- Walt Whitman, Leaves of Grass
James R. Cowles
Trump and orangutan ... NBC ... The Tonight Show with Jay Leno, 2013
Religious symbols ... No author cited ... Creative Commons Attribution-Share Alike 3.0 Unported
14th Amendment ... National Archives ... public domain