A Constitutional Conservative’s Take on Ascendancy of Donald Trump

The unlikely rise of Donald Trump as the Republican nominee for president of the United States can be traced back to U.S. Supreme Court Chief Justice John G. Roberts’ 2012 opinion upholding the Affordable Care Act’s individual mandate, said libertarian Georgetown University Law Professor Randy Barnett at a Sept. 15 talk hosted by Columbia Law School’s Federalist Society.

Barnett is well known for his tireless campaign to convince the Court to overturn the health law’s requirement that all Americans have health insurance, or pay a penalty—an endeavor that he says critics initially called “off-the-wall,” but resulted in close 5-4 vote. The case, National Federation of Independent Business v. Sebelius, was of vital importance to the future of the law, and also inspired debate regarding the role of Supreme Court judges. The outcome left many Republicans fuming over what they perceived as Roberts—appointed to the High Court by George W. Bush—disregarding the Constitution to side with the Obama administration. Although Roberts united with the four other conservative judges to reject the administration’s primary argument that the mandate was constitutional because it fell under Congress’ power to regulate commerce, he ultimately sided with Court’s four liberal justices to uphold it as a tax.

“If Roberts had sided with the four progressive justices and said we were completely wrong, it might have even been easier for people to handle this,” said Barnett, one of the lawyers for the NFIB, to a full lecture room. “But he said we were right about the Constitution and yet going to lose anyway. Those who were putting their faith in the Constitution [thought] ‘if the Supreme Court didn't care about the Constitution then why should I?’..[Roberts] told the people there were no Constitutional limits on federal power, there was only politics—now go out and get your own Obama to right whatever wrongs you think you suffer. And now, they have. And their new political paladin's name is Donald J. Trump—a man who knows nothing about the Constitution and who couldn't care less.”

Barnett—who worked on Rand Paul’s presidential campaign, and has voiced support for Ted Cruz— was invited by the student group to discuss his new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. The director of the Georgetown Center for the Constitution supports a “republican” Constitution, which he says views “We the People” as individuals, and “provides the law that governs those who govern us.” This is in contrast to a “democratic” Constitution, which he says views “We the People” as a group, and which creates a government that reflects the will of the majority.

Yet Barnett says a commitment by judges like Roberts to judicial restraint has increasingly moved courts toward a “democratic” Constitution. “Sadly we now see that while John Roberts’ ruling in the Obamacare case did leave many constitutional conservatives to turn against judicial restraint, it also caused Republican voters to turn against constitutional conservatism, and even against the Constitution itself,” he said.

In his talk, titled “How John Roberts Gave Us Donald Trump,” Barnett twice quoted from Roberts’ individual mandate opinion to support this claim: "It is not our job to protect the people from the consequences of their political choices."

“What else could that mean to [Tea Party activists] but that ‘it is not our job to uphold limits of federal power’?” Barnett said. “[That they should] go away from the courthouse, go away from the judges, go away from Constitution itself and fight this out. At a moment where he was called upon to teach people the value of their ‘republican’ Constitution, Chief Justice John Roberts asserted the judicial restraint of the ‘democratic’ Constitution and he turned them away...And it helped kindle the resentment and populism that led to Donald Trump.”

The talk was followed by a brief yet cogent counter-point from Columbia Law School Professor Kent Greenawalt, a constitutional scholar who argued that there are a number of areas where there has been a great expansion of individual rights because of a departure from our original understanding of the Constitution, giving the examples of gay marriage, women’s rights, and the 14th Amendment. Barnett gave a response, and then took several questions from students in the audience.

The Federalist Society at Columbia is a student organization that is built around a common belief that the role of the judiciary is to “say what the law is—not what it should be.” The group hosts regular events throughout the year that are open to the Law School community.

Posted September 23, 2016