Who Will Protect the Constitution?

Donald Trump vs. Hillary Clinton, amendment by amendment.


Photo illustration by Natalie Matthews-Ramo. Photos by Mark Wallheiser/Getty Images and Justin Sullivan/Getty Images.

In his first question in the final presidential debate, Fox News’ Chris Wallace asked Donald Trump and Hillary Clinton, “What’s your view on how the Constitution should be interpreted?” In his response, Trump said he would appoint Supreme Court justices who “will interpret the Constitution the way the founders wanted it interpreted.” And in a recent speech in Gettysburg, Pennsylvania, the Republican nominee pledged “to restore security and the constitutional rule of law.” Clinton, for her part, has rarely spoken about protecting the Constitution per se. But in the debate and on the campaign trail, she has reflected on her desire to appoint justices who protect her vision of it. “The Supreme Court should represent all of us,” she told Wallace.

Throughout this election season we have heard both candidates and both parties deploy the Constitution as the nation’s lodestar. But what does it mean to “restore” the Constitution or to keep faith with it? Some argue the Constitution must be interpreted according to its original public meaning at the time of ratification. Others believe it’s a living document whose broad principles must be interpreted in accordance with modern conditions. Most believe judges have infused these words with meaning over centuries of interpretation.

The best way to understand the Constitution, we believe, is to look at the actual text of the document in tandem with the courts’ most recent pronouncements on each provision. How closely do Donald Trump and Hillary Clinton hew to the Constitution’s precepts? Where do they depart from modern-day thinking on how the document should be interpreted? Below, we’ve selected key passages that, we hope, give readers a sense of how closely each candidate cleaves to the meaning of the Constitution as it is understood by its chief expositors today.

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First Amendment

Congress shall make no law … abridging the freedom of speech …

Trump: The GOP nominee has been known for decades as a man willing to try to sue his way to a more flattering discourse. His lawsuits against his critics are legion, if largely unsuccessful. He’s also suggested stifling speech online. In December, he mused on how we might prevent terrorists from talking to each other. “We have to go see Bill Gates and a lot of different people that really understand what’s happening,” he said. “We have to talk to them about, maybe in certain areas, closing that internet up in some way.” Anticipating concerns about the constitutionality of such a move, Trump added, “Somebody will say, ‘Oh freedom of speech, freedom of speech.’ These are foolish people. We have a lot of foolish people.”

Clinton: The former secretary of state is no speech hero. Clinton has crusaded for the criminalization of flag-burning and for placing limits on children’s access to violent or inappropriate music and video games. Last year, she suggested that tech companies help the government “deny online space” to terrorists. She has also been consistently wrong on one First Amendment issue: her promise to appoint only Supreme Court justices who will overturn Citizens United. As unpopular as the court’s 2010 ruling may have been, the protections it offers to corporations to engage in political speech should not be controversial.

… or of the press …

Trump: Donald Trump doesn’t have a whole lot of patience for the media. His rather radical notion of the First Amendment holds that “it is not ‘freedom of the press’ when newspapers and others are allowed to say and write whatever they want even if it is completely false!”

As the court put it in 1964 in New York Times v. Sullivan, there has long been “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Trump disagrees.

In February, he outlined at least some of his plans for curbing press freedoms: “We’re going to open up those libel laws. … So when the New York Times writes a hit piece which is a total disgrace … we can sue them and win money instead of having no chance of winning because they’re totally protected.” The Constitution, as interpreted by the Supreme Court for many decades, requires that libel claims show the publication acted with “actual malice”—that is knowingly published false information or acted with “reckless disregard of whether it was false or not.” Trump has said he wants to adopt the English libel system, replacing the actual malice requirement with the simple mandate to show that a publication made a mistake. This would require upsetting decades of precedent and restoring a press regime in which wealthy entities routinely prevailed over journalists.

Trump’s restraints on the press at his campaign events also reveal his disdain for journalism. Among other things, his campaign has prohibited reporters from bringing “professional cameras” to his events, and he has barred media organizations from covering his rallies because they wrote unflattering stories about him.

Clinton: Beyond her nine-month-long press conference hiatus, Clinton has shown nothing like Trump’s hostility to a free and open media.

Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Trump: There is substantial debate over what the Constitution “says” about guns. In District of Columbia v. Heller, the Supreme Court found that the Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia, and to use that arm for self-defense within the home. But in the years since Heller was decided, the court has steadfastly declined to clarify what constitutes reasonable regulation of guns.

Trump’s position is laid out in a policy paper that begins: “The Second Amendment to our Constitution is clear. The right of the people to keep and bear Arms shall not be infringed upon. Period.” He believes the right to keep and bear arms preexists the Constitution and is one the government may not take away. He has called the Second Amendment “America’s first freedom.” His policy suggestions include longer sentences for gun criminals, strengthening and expanding laws that allow lawful gun owners to defend themselves from criminals using their own guns, and fixing the mental health system. Trump also proposes doing away with gun and magazine bans and opposes expanding the current background check system. Trump has proposed a national right to carry and a national concealed carry reciprocity law that would compel each state to recognize the concealed carry permits of every other state. Finally, Trump would lift the prohibition on military members carrying weapons on military bases and in recruiting centers.

Clinton: Trump has, on more than one occasion, claimed that “Hillary Clinton wants to take your guns away” and that she wants to “abolish the Second Amendment.” No fact checker has found any evidence for this claim nor has the Trump campaign provided any. Clinton did once say at a campaign stop that she would consider a gun buyback program like the one instituted in Australia after a 1996 mass shooting. Clinton also said in a leaked recording that she disagrees with the Supreme Court’s ruling in Heller. “The Supreme Court is wrong on the Second Amendment,” she argued. She has also said several times that she believes in increased gun regulation. She told ABC News, “I believe we can have common-sense gun safety measures consistent with the Second Amendment.”

In that vein, Clinton has proposed expanded background checks; repealing immunity for the gun industry from negligence lawsuits; instituting a no-fly, no-buy rule for people on terror watch lists; revoking the licenses of gun dealers who knowingly supply weapons to straw purchasers and gun traffickers; and restoring the ban on semi-automatic assault rifles.

On the question of who would do more “harm” to the Second Amendment, that answer will depend entirely on whether you believe it is or is not constitutionally subject to reasonable regulation. But only one candidate has suggested that supporters of that amendment should do something about it, if so moved. In August, Trump told an audience, “By the way, and if she gets to pick … her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know.”

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Trump: The Republican nominee has called for a national stop-and-frisk policy. New York City’s stop-and-frisk program, as implemented by former Mayor (and current Trump supporter) Rudy Giuliani and continued by his successor (and current Clinton supporter) Michael Bloomberg, was deemed unconstitutional by a federal district court judge, who found in 2013 that it violated the Fourth and 14th Amendments. In the first presidential debate, Trump argued that this ruling had been made by “a very anti-police judge” and that New York City would have won on appeal. In fact, the federal appeals panel denied the city’s appeal, and Mayor Bill de Blasio ended the program and dropped the appeal in 2014.

Trump’s proposal to deport every undocumented person in the United States, a population of more than 11 million people, similarly cannot be achieved without violating the Fourth Amendment. Mass deportation would necessite extensive searches of personal property, as well as the widespread seizure and detention of individuals suspected to be undocumented. As the American Civil Liberties Union has argued, such a dragnet would inevitably include suspicionless interrogations and arrests—precisely what the Fourth Amendment was designed to prevent.

Trump has also said he would be “fine” with restoring provisions of the Patriot Act to allow the National Security Agency to resume collecting American phone metadata in bulk. While courts have split on the constitutionality of the NSA’s metadata program, some judges have concluded that the mass collection of Americans’ metadata without individualized suspicion of wrongdoing constitutes an unreasonable search in violation of the Fourth Amendment.

Clinton: As a U.S. senator, Clinton voted for the Patriot Act in 2001 and for its renewal in 2006. She also expressed support for the Foreign Intelligence Surveillance Act, though she voted against its expansion in 2008. Critics claim she has plans to beef up the surveillance state in response to the threat from ISIS. Many privacy advocates worry that Clinton has been fuzzy on where she locates the balance between the need for information and Fourth Amendment rights. For instance, she has conspicuously refrained from criticizing the NSA’s metadata program, even after Edward Snowden proved its searches were more extensive than the public realized. Instead, Clinton has suggested that the NSA “needs to be more transparent about what it is doing,” implying that Americans might support its data collection program if they understood it better, because they “do want you to get the bad guys.”

Fifth Amendment

… nor shall private property be taken for public use, without just compensation.

Trump: Few of Trump’s positions enrage libertarians more than his wholehearted support of eminent domain. Indeed, his vision of eminent domain appears to extend beyond even the generous limits set by the Supreme Court. In 2005, the justices ruled that “public use” includes not just roads and schools but also private economic development that could benefit the community as a whole. Trump has argued that even a limousine parking lot should qualify as public use. The candidate’s unqualified endorsement of eminent domain abuse suggests that, as president, he would lack the respect for private property embedded in the Fifth Amendment.

Clinton: Clinton has rarely spoken publicly about eminent domain issues, though the city of Little Rock did use eminent domain to help build the Clinton Presidential Library in Arkansas. In 2016, her campaign stated that she supported balancing eminent domain with “landowners’ property rights.”

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him … and to have the Assistance of Counsel for his defence.

Trump: Trump has argued that United States citizens accused of terrorism should not be tried in “our regular court systems,” implying they should be subject to military tribunals. These commissions operate outside of the Sixth Amendment and deny defendants many of the substantive and procedural rights afforded in civilian courts. By threatening to toss out constitutional safeguards for criminal defendants accused of terrorism, Trump has indicated he is not particularly concerned with upholding the Constitution’s fair trial guarantees.

Clinton: Clinton opposes military commissions and supports trying terrorist suspects in civilian court. She has also supported the Sixth Amendment right to counsel for all defendants, defending deeply unpopular clients (such as an accused child rapist) while working in a legal aid clinic.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Trump: Trump has been clear that he supports enhanced interrogation, and then some. In February, he said, “Torture works. OK, folks? … And waterboarding is your minor form. Some people say it’s not actually torture. Let’s assume it is. But they asked me the question: What do you think of waterboarding? Absolutely fine. But we should go much stronger than waterboarding.” He has also proposed “taking out” terrorists’ family members and suggested he would use torture because “they deserve it anyway, for what they’re doing.”

Trump later walked those comments back somewhat and cautioned that his methods of torture would comply with controlling “laws and treaties.” He then changed his posture again to say he would seek to change the existing laws to permit torture. Even if he adhered to the now discredited Office of Legal Counsel memos authorizing waterboarding, the notion that he would order soldiers to waterboard over their objections is horrifying to most constitutional and military experts. There is no doubt that waterboarding and “beyond waterboarding” violate not just the Eighth Amendment but also the Geneva Conventions and many other domestic statutes and international treaties. In addition to the Eighth Amendment, torture is illegal under many statutes and treaties including the international Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Common Article 3 of the 1949 Geneva Conventions.

Clinton: Clinton once took the position that enhanced interrogation might be appropriate in so-called “ticking time bomb situations.” That was almost 10 years ago, and her current position is that waterboarding is misguided. As she explained in March: “Our country’s most experienced and bravest military leaders will tell you that torture is not effective. … It does put our own soldiers, and increasingly our own civilians, at risk.”

10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Trump: Trump has expressed interest in rolling back a great number of federal regulations, including the Clean Power Plan. He has also said he views hot-button social issues like transgender rights and same-sex marriage as a matter of states’ rights. However, Trump does not appear as eager to respect the limits of federal power with regard to policies he favors, like stop-and-frisk. Trump has proposed nationwide stop-and-frisk—which would require state law enforcement agents to implement a federal policy. That is a direct violation of the 10th Amendment’s “anti-commandeering” principle, which forbids the federal government from “commandeering” state agents to help enact some federal scheme.

Clinton: In the modern era, the Supreme Court has only rarely held that a federal regulation exceeds congressional authority and infringes impermissibly on state sovereignty. But Clinton does support a number of proposals that would arguably violate the anti-commandeering principle—most notably, the Clean Power Plan. Many conservative states argue this proposal to cut carbon emissions requires the commandeering of state governments for full implementation, rendering it constitutionally invalid. Whether or not the Supreme Court ultimately accepts that argument, it’s clear Clinton’s vision of governance does not prioritize the respect for state sovereignty embodied in the Tenth Amendment.

14th Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Trump: The first sentence of the 14th Amendment overruled the Supreme Court’s decision in Dred Scott, which found that black Americans were not citizens. In 1898, the court confirmed that the Birthright Citizenship Clause guaranteed American citizenship to children who were born in the United States to noncitizen parents. Donald Trump disagrees with this interpretation, arguing that Congress can and should prevent the children of undocumented immigrants from obtaining birthright citizenship. Such a law would violate an understanding of the 14th Amendment held by American courts for more than a century, one shared by all but a few fringe conservative legal scholars.

Clinton: Clinton opposes any effort to revoke birthright citizenship.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Trump: Together, the Fifth and 14th Amendments prevent any government, state or federal, from denying an individual due process or equal protection under the law. Trump appears to favor executing terrorists—including, presumably, American citizens—without any semblance of due process. He also believes people on the terrorist watch list should be barred from purchasing firearms, a deprivation of their procedural due process rights.

Trump supports overturning the Supreme Court’s ruling that the government may not deprive same-sex couples of their right to marry. The Due Process Clause’s guarantee of personal liberty also protects certain fundamental rights, such as marriage. That ruling also invoked the Equal Protection Clause, which bars the government from engaging in irrational or invidious discrimination. Trump’s plan to shut down mosques he deems dangerous would certainly violate Muslims’ equal protection rights.

Excluding Muslims from the United States, a plan Trump has endorsed, would also likely violate the Equal Protection Clause.

Clinton: While Clinton does not speak favorably about executing suspected terrorists without due process, she does endorse barring individuals on the terrorist watch list from purchasing firearms. This position cannot be squared with the due process of law.

Clinton believes the 14th Amendment guarantees same-sex couples a right to marry, although she is a relatively recent convert to the marriage equality movement. She opposes Trump’s plans to target and discriminate against Muslims, both citizens and immigrants.

15th Amendment

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Trump: Trump strongly supports voter ID laws, is not concerned with cuts to early voting, and has announced no plans to strengthen the Voting Rights Act. Many advocacy groups believe that stringent voter ID requirements and early voting rollbacks violate the 15th Amendment, in addition to the First and 14th. This area of the law is hotly contested, and some lower courts have affirmed the constitutionality of voting restrictions. But a growing number of federal appeals courts have ruled that these measures cannot withstand constitutional scrutiny, and at least one federal judge has agreed that targeted restrictions on early voting specifically violate the 15th Amendment. Trump’s proposals are therefore at best apathetic to—and at worst in violation of—the 15th Amendment.

Clinton: Clinton supports restoring the Voting Rights Act, which the Supreme Court gutted in 2013 and which was designed to give teeth to the promises of the 15th Amendment. She also opposes the many voting restrictions recently enacted by Republican legislatures, including voter ID requirements and cuts to early voting.

19th Amendment

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Trump: A group of Donald Trump supporters started using the Twitter hashtag #repealthe19th after a map showed he would win the election if only men voted. Trump himself has not weighed in.

Clinton: Appears to support women’s right to vote.

See more of Slate’s election coverage.