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5 comforting Constitutional facts for the time of Trump

On January 20, 2017, Donald Trump will take office as the 45th President of the United States of America. Media outlets, political pundits, foreign dignitaries, and average citizens across the world are expressing everything from concern to fear about Donald Trumps’ ability to run the most powerful country in the world effectively. The reason for this concern stems not only from Donald Trumps’ lack of political experience, his racist comments, and his sophomoric behavior, but also because of his ignorance and indifference of the one document Americans hold most dearly: The United States Constitution.

These concerns most recently came to the fore when Donald Trump took to Twitter claiming that those who burn the American flag should go to jail. In a country that values its freedom of speech almost above all other freedoms, this statement may just be an inkling of what kind of Constitutional guarantees Trump will ignore to ignite his political base. Despite the world’s doubts, one thing has remains true: knowledge is power. The more a person knows about Constitutional principles and limitations, the calmer they can feel when the President-elect takes to Twitter over the next four to eight years.

1. Flag burning is a Constitutional form of expression

Society’s problem with burning the American flag is nothing new. In fact, one guy named Gregory Johnson was so pissed off at America’s love affair with Ronald Reagan that he decided to put kerosene on an American flag just outside of the Dallas (TX) City Hall back in 1984. Johnson was convicted of desecrating a “venerated object” and sentenced to jail and given a fine. Johnson appealed the decision to Texas’ highest court and they overturned the conviction.

Texas appealed the decision to the United States Supreme Court and the Court upheld the decision, opining that freedom of speech is not only limited to just spoken or written words, but also by expression too. Ultimately, the right to burn a flag is perfectly Constitutional despite what Donald Trump thinks.

2. The Constitution has been amended: 17 different times

The 2nd Amendment generally gives people the right to bear arms. A quick scan of anyone’s Facebook feed will almost definitely include a reference to this part of the Bill of Rights to defend the reasons why they have a small armament in their backyard shed. There is a presupposition that the Constitution was just one, singular document created hundreds of years of ago and has not changed since and shouldn’t be changed to fit a changing world. On the contrary, the Constitution has changed multiple times to fit society’s changes. The amendments have included term limits for Presidents, the abolishment of slavery, and even the minimum voting age. When was this sacred document changed last? 1992.

3. The President does not have ultimate authority

Don’t forget how much Americans hated the idea of a monarchy. The Constitution was drafted specifically to limit the authority of one person to prevent the tyranny that split apart so many countries of years past. So, if there is any group of people that the world should be afraid of it is the United States Congress, not so much the President.

This is for several reasons. First, the President does not create laws, Congress does. The President is not without power, but his power is dictated by what Congress says. The United States Secret Service? That’s Congress. Funding for special education? Congress again. Money to support women’s rights? Congress is waving its flag.

Look at it this way; the President is like the CEO of a very large organization. The President is the most visible person in the organization and can control how things are done, but it is the board of directors who  determine what the President can do. Keep in mind that even if the President vetoes a bill by Congress, Congress can still get it passed if 2/3 of the group votes for it. This was intentional to give people the power, and not just one man. Talk about real power.

4. Racism and sexism are harder to legitimize than most people think

The Civil War was the bloodiest war the United States ever saw. As w country known to fight for what it believed in, those convictions were put to the test in the 19th Century and changed the trajectory of race relations and gender equity in the U.S. One of the things born of the Civil War was the Equal Protection Clause. After the Civil War, many states naturally tried to keep non-whites from enjoying any of the freedoms that many people died for. To prevent further discrimination based on basic differences, Congress passed the Equal Protection Clause of the 14th Amendment of the United States Constitution (see how Congressional power and amendments work together?). This piece of legislation said that every single law that even seemed like it was discriminating against a group of people would have to pass at least some level of scrutiny. If the law is discriminatory, it’s unconstitutional. Period.

5. Trump is in for the public skewering of his life

Remember, freedom of speech is one of America’s most dearly held principles. This makes it difficult not only for the government to punish speech, but also for people to seek compensation for the critical things people said about them. One of the issues Donald Trump has faced even before he decided to run for President was the intense criticism he faced. One thing that Trump has sued for regularly is for defamation. For those who are unfamiliar, defamation is a false and defamatory statement, concerning the plaintiff, published to a third party, that causes harm. On the surface, a person could sue another person for saying mean stuff about them to another person.

But here’s the catch: public figures like Donald Trump have little leg to stand on. The rules about defamation have evolved such that unless a statement is made maliciously (with just a total and complete disregard for the truth), a case won’t hold water. Keep in mind this is different than opinions. This is different than facts. A person like Donald Trump, a widely recognized public figure, would have to prove that people were actually trying to harm him and have a reckless indifference for whether it is true. Essentially, if you want to get famous, you had better be able to deal with criticism. In the 24-hour, social media, Internet connected world of today, Trump’s ascendance to the Presidency may cause him to tell his lawyers to avoid hitting send on that lawsuit in the future.

Photo: Darron Birgenheier/Creative Commons