Professors Agree: Unprecedented Election Spurs Constitutional Concerns

October 3, 2016

NEW YORK, NY

New York law professors gathered to discuss the 2016 presidential election and its ramifications on Thursday, concentrating on how contemporary issues interact- and more importantly, conflict- with the Constitution and the law.

The discussion, titled ‘The Election, The Supreme Court, The Constitution, and The Rule of Law,’ featured notable speakers: Richard Epstein, New York University Law School professor; Jamal Greene, Columbia Law School professor; Nadine Strossen, New York Law School professor; and moderator Jami Floyd, a Public Scholar, legal analyst, and host of WNYC Radio’s “All Things Considered.” Together, they examined key issues of constitutional law within the context of an unparalleled election, one which has polarized the nation on contentious issues like criminal law, racial and gender equality, and immigration.

“I don’t think it’s hyperbole to say that we have more at stake in this election for democracy than we have for decades,” states Andrew Scherer, Policy Director of the Impact Center for Public Interest Law, which organized the discussion.

One of the most recently debated issues of democracy has been the stop-and-frisk policy, deemed unconstitutional in New York and for which Trump has expressed support. The policy, found generally ineffective, disproportionately targeted black and Latino people, according to data from the New York Civil Liberties Union. Furthermore, in an analysis of 700,000 people, only 126 more guns were found compared to a procedural 160,000 stops. While many denounce stop-and-frisk, others, such as Epstein, support its use in locations where gang violence is heavier, and when it does not involve racial profiling.

“You have to de-bias,” he states, that is, “take out preconceptions and only see the observable.” However, Strossen is quick to counter this argument, stating that removing implicit bias is not so easily done.

Greene contends that we have to consider two things: first, whether the policy is truly effective; second, whether it’s moral or in violation of the Constitution, regardless of effectiveness. When asked if any president can get America past this racial divide, he answers that it doesn’t rest within any one president’s power. He states, “The notion that we can make racial progress from economic, political, and social inequality to some sort of ‘Kumbaya’ moment is farcical.” Strossen, on the other hand, believes Clinton will push positive legislative reform of the criminal justice system, and that substantive progress is, in fact, possible.

Immigration has also raced into the political spotlight with Trump’s plans to build a wall along the border, and more recently, ban Muslims (and screen those already here.) Greene immediately denies this plan’s legitimacy, stating that it would require the suspension of habeas corpus, which protects individual liberty in criminal law.

Strossen argues that this would violate much of the Constitution, the due process clause, non-establishment clause, and equal protection clause to name a few. “Even at the most racist period of immigration law,” she begins, referring to the Chinese Exclusionary Act, “we never had exclusion on the basis of religion.” She continues to say that the Constitution protects ‘persons’ rather than ‘citizens,’ which extends to those attempting to immigrate.

Epstein, though far from a defender of Trump, maintains a different perspective on what the Constitution means by ‘persons,’ arguing that the concern should be on the violence causing the refugee crisis, rather than its immigration effects. When asked about Trump’s potential executive power, Epstein states, “I don’t think he’s illegal, I think he’s nuts.” He says that Michael Chertoff, the former Chief of Homeland Security under Bush, has called Trump “reckless,” claiming Trump’s plan could not be implemented without creating a police state. Other conservatives, once deemed radical, have agreed. John Yoo, for example, a major author of the Torture Memos that abandoned the principles established by the Geneva Convention, has said Trump’s support of torture goes too far.

Meanwhile, these legal concerns are exacerbated by the critical vacancy in the Supreme Court, the culmination of Article III of the Constitution. With the death of Scalia, the eight members are at a standstill, and have been avoiding particularly controversial cases.

“The Supreme Court decides 100 cases a year, 97 of which everyone forgets,” Epstein half-jokes. However, Elizabeth Wydra, president of the Constitutional Accountability Center, has stated, “This term’s cases are not snoozers,” featuring potentially landmark cases concerning democracy and equity. In addition, lower courts now see 105 vacancies, 35 of which have been declared judicial emergencies. Greene responds to this with the common saying: “Justice delayed is justice denied.” Ideally, the Constitution should safeguard swift judicial action.

While Merrick Garland, the well-liked moderate liberal, remains a strong candidate for a Justice, and who Greene calls a “smart pick unlikely to be filibustered,” Trump has put out lists of 21 nominees altogether. However, if Trump is not elected, the Supreme Court could see a liberal majority for the first time since 1971, which would sway the law and interpretations of the Constitution. To do this, Epstein says Hillary has to win trust; as it stands, the polls are close, with many willing to “roll the dice” on Trump. Greene believes that if the electoral college broke down in a repeat of Bush v. Gore, the House would vote for Trump. However, as the discussion highlights, his potential policies could jeopardize the fairness of the law.

In the end, the speakers resign themselves to whatever the future may hold. Strossen effectively concludes the event by grabbing her copy of the Constitution and holding it up, announcing, “This is what the people should trust.”

*image courtesy of the New York Law School

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