Every constitutional decision of the U.S. Supreme Court is a two-edged sword. Nowhere is this clearer than in the recent decision in Trump v. United States (2024).
But we need to look beyond the facts and personalities of a particular case in constitutional decisions: who won, who lost, what were they fighting about? We must look to the constitutional principle established by that case, considering how it can be used in the future.
For example, in Pierce v. Society of Sisters (1925), the Supreme Court recognized a privacy right that includes the right to make decisions about the education of one’s children:
[T]he Act of 1922 [an Oregon statute requiring all parents to send their children to public schools] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. … The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
With great success, I have often cited Pierce v. Society of Sisters in defending home schools, private schools and parental rights against state intrusion. But the decision is a two-edged sword that can also cut against us. The same so-called “right of privacy” – not explicitly stated anywhere in the Constitution – has also been used in Roe v. Wade (1973) to support a right to abortion, in Lawrence v. Texas (2003) to support a right to engage in homosexual conduct, and in Obergefell v. Hodges (2015) to support a right to same-sex marriage.
Similarly, during the 20th century many of us were disturbed that the liberal-dominated Supreme Court used the Free Speech Clause of the First Amendment to protect Communists in Schenck v. United States (1919), Gitlow v. New York (1925) and others. But we rejoiced in 2021 when the Supreme Court in Uzuegbunam v. Preczewski used the same broad interpretation of the First Amendment to protect the right of a Christian student to engage in evangelistic speech on the campus of Georgia Gwinnett College.
The same can be said for the Court’s use and misuse of the Commerce Clause, the General Welfare Clause, the Necessary and Proper Clause, the Appointments Clause, and many others.
That brings us to Trump v. United States, decided July 1, 2024. Trump was indicted for allegedly conspiring to overturn the 2020 election by spreading false election claims. He argued that he was innocent because the claims were true, but also that he was immune from criminal prosecution for acts performed while president of the United States.
Trump supporters rallied to his defense, arguing that the president would be paralyzed if, before taking executive action, he had to worry about whether he could be sued for his action. The president cannot act on behalf of the nation unless he possesses sovereign immunity from prosecution for his action.
But what if President Biden were making similar claims? Would we want total immunity for him?
A similar issue arose in the 1970s when President Nixon claimed unlimited executive privilege, the right to classify documents and keep them from public view. His Democrat opponents sued, claiming the president had no such power. In United States v. Nixon (1974), the Court took a middle position, holding that the president’s power to classify documents was broad but not unlimited, and that to keep a document classified, the president had to demonstrate that (1) there was a legitimate reason for classifying the document as secret when the president classified it, and (2) there is still a legitimate reason to keep the document classified today. This was a well-reasoned decision, recognizing that national security requires that the president have power to classify documents, but that power cannot be absolute, or the president could classify documents just because they are politically embarrassing.
Another case arose in the 1990s when Paula Jones sued President Clinton for sexual harassment while he was governor of Arkansas. Denying Clinton’s claim of immunity, the Supreme Court held in Clinton v. Jones (1997) that a sitting president could be sued for acts committed before he took office, but he might request delays if defending the lawsuit prevented him from performing the duties of office. Again, a sensible decision: Presidents are not gods, and kings are under the law (see Samuel Rutherford, “Lex Rex”), but a president cannot function in office if his time is filled with defense of lawsuits.
In Trump v. United States, Chief Justice Roberts, writing for the majority, issued a similar balanced opinion. He held that the president is entitled to immunity for the performance of his official duties, but not for unofficial personal acts. This is a sensible decision. If the president must decide whether to send troops into the Middle East, he cannot properly make that decision if he must worry about whether he will be sued by the families of soldiers killed in action if he does send them, or by those who suffer damages if he does not. The Court remanded the case to the district court to determine whether Trump’s actions on Jan. 6 were part of his official duties. In some instances that could be a close question, but in this case, it seems likely the lower court will conclude that he was acting in his official capacity as president.
Justice Thomas concurred, going beyond Roberts in questioning whether the special prosecutor was legitimately appointed. Justice Sotomayor, joined by Justices Kagan and Jackson, issued a strident opinion, concluding, “With fear for our democracy, I dissent.”
I understand the rationale behind each of these opinions. But I can’t help wondering: If the defendant was Biden, would the justices’ positions be reversed? And how would their decision be viewed by the media, or the public?
That’s what I mean when I say every constitutional decision is a two-edged sword. When we ask the Court to recognize a certain right, we must recognize that the same right which we cherish can also be used by those whose beliefs and goals are totally opposite ours. When we ask the Court to recognize an executive power for a president we support, we must recognize we are granting the same power to a future president we oppose. Likewise, when we ask the Court to limit President Biden’s power to impose regulations not authorized by Congress, we must recognize that the same limitation applies to future presidents we support.
We all must recognize that every constitutional decision has ramifications for generations to come, for those in power from the left or the right, affecting issues we may not have dreamed of at the time.
That’s why we must carefully balance this constitutional two-edged sword. Otherwise, it can become a sword of Damocles.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law and Government Policy (obcl.edu) and Senior Counsel for the Foundation for Moral Law (morallaw.org). He can be reached for speaking engagements at eidsmoeja@juno.com.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com.
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