Along with several attorneys and law professors nationwide, Duke law professor Stephen Sachs helped author a letter published earlier this month by the "Originalists against Trump," arguing that Republican candidate Donald Trump would not uphold important constitutional values. The Chronicle spoke with Sachs about the meaning of originalism and the future of the Supreme Court post-election. The following conversation has been edited and condensed for clarity.
The Chronicle: Could you explain what originalism means and why you subscribe to it as your philosophy?
Stephen Sachs: Originalism is in general the idea that the Constitution says what it said and does what it did when it was enacted. And that even though individual provisions in the Constitution might have different consequences at different times—the fact that House seats go by the [U.S.] Census mean that as the Census changes you get more or fewer House seats—the rule itself for apportioning them does not change. The Constitution created legal rules, and whatever those rules are hasn't changed since the founding, except to the extent they were amended.
My own reasons are that in American law there are only certain ways that are recognized as amending the Constitution or changing what it did. Everyone understands that if a statute or any other piece of law doesn't get amended, it stays where it is and just keeps on trucking. An object at rest stays at rest unless acted upon by an outside force. If you don't do anything to the Constitution, it keeps on trucking and containing whatever legal rules it had before, and there are ways of adding or subtracting those legal rules, but just that people might understand the words differently at different times is not one of those ways.
TC: Why call yourself "Originalists against Trump"? What's the significance of that particular group?
SS: I think it was important to have originalists speak out as originalists, because many people have defended Trump and argued for voting for Trump on the basis of his likely Supreme Court appointments—his statements during the debates that he would appoint justices who interpret the Constitution as written. But as the statement says, the signatories don't believe he can be trusted on that. Moreover, there are a lot of things the president does outside of appointing Supreme Court justices on which Trump can't be trusted to comply with an originalist interpretation of the Constitution.
I think it's interesting that so many people seem to be willing to vote for literally anyone who promises to appoint Supreme Court justices who agree with their views. I think that says something very sad about the place of the Court in the democracy, because there are so many reasons why people might object to Trump as president. And the idea that that would be the one factor that would sway them says something very significant about how much space the Court has taken up in what would otherwise be democratic self-governance.
TC: He has named 10 justices on his short-list, one of whom is actually a Duke alum. Do you have any problems with those particular justices?
SS: The statement, as far as I read it, makes no aspersions against those individual justices. Many of them seem to be fine people. It's more a question of whether this campaign promise as opposed to any other can be relied on, and how you weigh that promise compared to other promises he has made. Many of the justices [he has named] seem like perfectly reasonable choices.
TC: Wouldn't the Senate's ratification procedure prevent a problematic justice from being sent to the Court? Is that not a sufficient check?
SS: Maybe. But the track record of the Republican Party in checking Trump in various ways during this campaign is not good. [If the Democrats take the Senate,] it's even less likely that he would appoint originalist justices, because the Democratic Senate would prefer justices who are less originalist rather than more.
TC: Is [Democratic nominee Hillary Clinton] any better, or worse, for originalism than Trump is?
SS: The statement was worded broadly enough to appeal to two kinds of people. I'm sure some of the people who signed it feel that Trump would be worse solely on the basis of originalism alone, not only due to the justices he appoints but also because of all the other things he would want to do while in office and all the other expressions he has made and their inconsistency with the original Constitution. I think there is also a group that thinks, even if the terribleness of both candidates brings the originalism issue to a draw, there are other reasons to oppose Trump as a candidate.
One school would say that Trump is worse solely on originalism alone. A second school would say that Trump and Clinton are approximately equally bad on originalism grounds, but there are other reasons not to vote for Trump.
TC: You mentioned there are other things besides the Supreme Court that could clash with originalist doctrine. Could you give some examples of what worries you about Trump?
SS: Many of his statements during the campaign and beforehand have suggested this is not a person with a clear sense of the limited powers of the presidency and the separation of powers, but has tended towards general proclamations that he is going to do things that aren't within the president's powers to do. His statements towards [Judge Gonzalo Curiel] does not give any faith that he would promote an independent judiciary. His discussion of registering American Muslims would be a clear violation of religious liberty. His discussion of libel laws and other ways in which he would silence critics would be a violation of freedom of speech. There are other examples as well.
TC: Does this letter advocate for any candidate?
SS: I don't read the letter as an endorsement of any one candidate, just that the signatories are not going to vote for Donald Trump.
TC: Are you willing to share your personal voting plans?
SS: My plan is to wait until election day and see what polling in North Carolina looks like. I would prefer to vote my conscience, but if necessary, I will vote strategically.
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