Mensch tracht, un Gott lacht

Friday, August 19, 2016

Trump, Academia, and Hyperbole

I have written about 30 academic publications, and I guess there are 100s, if not 1000s, of citations to the Constitution in them. It is possible that somewhere amongst them, I miscited the Constitution. Mistakes happen. If someone took the time to point out one such error to me, I guess I would regret it, and I would be a teensy bit embarrassed. I would not blame others, such as my co-authors or editors.* Certainly, I would not think of myself as “ignorant” for such a mistake, as mistakes do happen.

If I saw that someone else made such a mistake, would I be just as considerate of them, as I would be of myself? If I saw that some academic miscited the Constitution, would I think him “ignorant”? I hope not. Although some people are ignorant, it is all too easy to call others names for no more reason than because we disagree with them and to confuse our mere disagreement with their being ignorant. Second, calling other people “ignorant,” as opposed to “wrong,” can be overkill. It looks strikingly ungenerous, if not unfair. So even if the characterization were true, it is unwise to make and likely to backfire with any audience, except those already thinking exactly as we do. Finally, such conduct is peculiarly inappropriate for a legal academic. The whole tenor of legal education is to shift students and future lawyers away from a name-calling discourse into a reasoned** discourse. When law students hear legal academics speak or write about others as “ignorant,” the legal academics undermine the core of what we are supposed to teach.

That is all by way of introduction. Now brass tacks.

Professor Orin Kerr, at The Volokh Conspiracy, wrote:

But here’s the most remarkable passage [from a prior article in The Washington Post]:

The most charitable reading would be that Trump heard the question about “Article I powers” as really asking about “rights protected by the First Amendment.” On that account, we now have insight into Trump’s constitutional views. Trump apparently is a strong defender of the procedures for the selection of the President and Vice-President by the Electoral College, which is what the Twelfth Amendment provides.

On the other hand, the more natural reading is what a lot of us suspected already: Donald Trump doesn’t know what is in the Constitution, and he doesn’t care that he doesn’t know.

Now there are three good reasons to reject the full scope of Kerr’s conclusion. First, Representative Sanford does not say the event actually happened. Sanford says only “I think [Trump’s] response was ....” (emphasis added). Second, we are talking about former Governor Mark Sanford here. Do you really want to rely on Mark Sanford and his memorySee Wiki entry—Impeachment Proceedings. But the third reason is the most important. Anyone can make the sort of error Trump is alleged to have made here. It is no big deal: at least I do not think it is.

For example, see Orin S. Kerr et al., 1 Criminal Procedure State authority–§ 1.2(b) note 29 (4th ed. updated Dec. 2015). Note 29 cites “U.S. Const. Art. 1, § I, cl. 3.” The problem is: there is no Article 1, Section 1, Clause 3. Still anyone can make an error—or two? 

See Orin S. Kerr et al., 1 Criminal Procedure Federal legislative authority–§ 1.2(c) note 48 & accompanying text (4th ed. updated Dec. 2015). It cites “U.S. Const. art. 1, § 3” as speaking to “treason.” The problem is: Article 1, Section 3 exists, but it does not speak to treason. 

You can even find other people making the exact same error Trump is alleged to have made: i.e., referring to (purported) Article XII of the Constitution. See, e.g., 2 Children & the Law § 8:9 n.31 (authored by a judge); 37 S.U. L. Rev. 127, 170 n.191, 180 n.233 (authored by a legal academic); 17 Touro L. Rev. 397, 412 n.63 (authored by a legal practitioner). [Addenda Aug. 13, 2023: E.g., Government of the Rebel States, 39 Cong. ch. 153; § 5 , 14 Stat. 428, 429 (1867) (incorporating by reference the “amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen . . . .”); Henry Stanbery, The Reconstruction Acts, 12 Op. Att’y Gen. 141 (1867) (referring to an “amendment to the Constitution of the United States proposed by the 39th Congress, and known as Article XIV,” not Amendment XIV.] Like I said, anyone can make this sort of error, including Kerr and others. Id. The difference is Kerr is an expert; Trump isn’t. The difference is that Kerr and his co-authors made their mistake in a full-length edited treatise; Trump was speaking extemporaneously. The list price of Kerr’s treatise: $1,110; Trump did not bill his audience—as far as I know.

Contra Kerr, the most charitable explanation for Trump’s error—assuming he made it at all—is that Trump was saying: I respect the whole of our Constitution from Article 1 (where its primary text begins) to Amendment XXVII (where its text ends). As President, I won’t pick and choose what to adhere to because the whole of the written Constitution is our law. Perhaps I am being overly charitable. Where the real truth of the matter lies, between Kerr’s view and the one I put forward here, is for you to decide. But the larger point is that there are two ways to see the Trump narrative. Two ways.*** That’s what lawyers and legal academics are trained to see, trained to do, and trained to teach (both in our classes, in our writing, and by our example). How is it that so distinguished and senior an academic as Professor Kerr—a leading expert in criminal procedure—could get this simple task so wrong? (For Kerr’s—somewhat disappointing—response see Twitter.)

I wish I could say Kerr was alone here. He’s not. Professor Ilya Somin, also writing at The Volokh Conspiracy, wrote: “Trump is indeed profoundly ignorant about the Constitution. This is a man who thinks judges sign bills (they don’t), and that the Constitution has an Article XII (it doesn’t).” Ilya Somin, Can Trump be trusted on judicial appointments?, The Volokh Conspiracy—The Washington Post (Aug. 17, 2016), <>. I have to say: I wonder why Professor Somin thinks it necessary to tell his readers that judges don’t sign bills and that there is no Article XII. I suppose there are two possibilities: (1) Somin recognizes that this sort of informational lacunae among non-experts is acceptable, it is to be expected, even among otherwise educated people, or (2) Somin believes his audience is ignorant, and they must be informed of the truth. It seems to me Somin’s argument does not work. If Somin takes position (1), then he and his audience cannot fault Trump precisely because this sort of informational lacunae is acceptable and expected. If Somin takes position (2), then he cannot seriously ask his audience to reject Trump for being about as ignorant as they themselves are. Somin isn’t trying to convince his audience that Trump is d-u-m-b, he is trying to convince his audience that he (Somin) is smarter than Trump and his (Somin’s) audience. I expect that if I had made such an argument before an audience, I would feel very unsafe.

As to the Article XII argument... In a peer reviewed journal article, Professor Somin wrote: “[T]he Privileges and Immunities Clause requires states to treat migrants from other states on par with their own citizens, thereby facilitating interstate mobility.” Somin cites U.S. Const. Art. IV, § 4. See Ilya Somin, Book Review, 28 Const. Comment. 303, 305 & n.5 (2012) (reviewing Michael Greve, The Upside-Down Constitution (2012)). 

But that’s not right: Article IV, Section 4 is the Guarantee Clause, not the Privileges and Immunities Clause. Now just to be clear: my point isn’t that both Trump and Somin are equally dopes. Rather my point is that anyone can miscite the Constitution, and we should be loathe to call someone “profoundly ignorant” just because they cite to the wrong article or the wrong clause. Anyone can make a mistake.

As to Trump’s stating that judges sign bills, he was clearly wrong about that. But in context, the context in which he made that statement, he made a good point and probably helped his campaign overall. The circumstances were these:

Senator Ted Cruz had just attacked Trump’s sister, Judge Maryanne Trump Barry (United States Court of Appeals for the Third Circuit), for being a pro-abortion zealot. Trump’s response, in effect, was: (1) to defend his sister, rather than to throw her under the bus; (2) to say she was not pro-abortion per se, but upheld established law; and (3) to point out that Judge Alito**** voted the same way, illustrating that candidate Trump understood the zeitgeist of his Republican audience and voters better than Cruz did. What Trump should have said was: My sister, Judge Barry, signed the same judicial order that Alito signed. Instead, he said My sister signed that bill. Trump’s words were not artful, but—on substance—he was entirely correct. And of course, all this was said in extemporaneous public debate. If I were grading Trump’s debate performance, I could not give him an A, but an F for “profound ignorance” would be equally inappropriate. I would give him a C+, and then tell him that he has a lot of potential, and if he works harder, he will go far.

Trump is not my ideal candidate. I did not back him in the primaries—indeed, there were others who I would have preferred. I am not telling you to vote for him or not to do so. You don’t need to hear what I think on this question because in a democracy the operating theory is that validly-registered non-felon not-institutionally-committed adult citizens can make up their own minds and vote (or not) how they like. That said: I do not see much good flowing from calling candidates or their voters (politically) ignorant, and it seems to me that promoting the contrary view can do a lot more long-term damage to our polity and to Western democracy than anything Trump has said to date.


Over 12,000 impressions; over 120 engagements

Over 3,000 pageviews here at NRC.

PS: Several days after publication of this post on NRC, I came across this tweet by Professor Kerr. See Orin Kerr (@OrinKerr) on Twitter, S.B. Tillman: It does great damage to democracy for bloggers to say Trump does not know what is in the Constitution (Aug. 19, 2016, 12:23 PM), <>. Readers can decided for themselves what to make of it, or if it is responsive to my NRC-post.

2022 addendum: I now see 8 scholarly sources on Westlaw using US Const art XII or US Const art 12: E.g., Sanford Levinson, Article V After 230 Years: Time for a Tune-Up,’ 67 Drake L. Rev. 913, 930 n.103 (2019) (U.S. Constart. XII (proposed by Congress in 1803 and ratified by three-fourths of the states in 1804); U.S. Constart. XI (proposed by Congress in 1794 and ratified by three-fourths of the states in 1798).), <>;


There is one exception. If an editor willfully injected a change in my article after we had agreed the article was finalized and published the modified article without consulting me, then I would blame the editor for any error relating to the unauthorized change. Unfortunately, such things have been known to happen. That is one good reason why journals—particularly print journals—should have an errata section.

** I am not excluding the possibility of an impassioned discourse that is within the family of reasoned discourse. I do maintain that unreasoned discourse is not saved merely by being impassioned.

*** Unless, of course, we are aiming for the Jackie Chiles standard: “It is a clear violation of your rights as a consumer. It is an infringement on your constitutional rights. It is outrageous, egregious, preposterous.” Seinfeld.

**** Judge Alito was a Third Circuit judge prior to his elevation to the U.S. Supreme Court. 

PS: Welcome Hugh HewittChicago Boyz, Instapundit, and most especially Volokh Conspiracy readers.

Twitter: <> ( @SethBTillman ) 


Tom Van Dyke said...

Excellent, Seth. The academy types give each other a passing note over minor errors, but scorch the earth with them when committed by their ideological opponents.

Quis custodiet ipsos custodes??

TMLutas said...

I also did not have Trump as my first choice in the primaries and will not be voting for him in the general absent significant changes in my understanding of the character of the on the ballot contenders. I am finding myself defending the man more often than I thought I would be from the unfair piling on that is going on in far too much of our national discourse.

I've always been allergic to two minute hates.

deanz1 said...

When Trump said his sister "signed" the bill in question, while speaking ex temp, what I think he meant to say was that she (and Alito) "signed off" on the bill. So, per his professorial critics, omitting one word casts him into the darkness, unfit for any office, let alone POTUS.

As to Article XII, he was clearly exaggerating for rhetorical effect -- again ex temp. Perhaps the professors would have caught on had Trump said Article I to Article C. What? The Constitution doesn't have 100 articles? My bad!

Bill Peschel said...

Obama says he's visited 57 states: Rhetorical slip.

Trump wants to protect article XII: Unfit for the presidency.

Makes sense to me.

Roy Lofquist said...

"What we've got here is a failure to communicate". Or, as Angelo Codevilla might say, the ruling class and the country class speak a different language.

Pedantry, out here in fly-over country, is called nitpickery. It is really quite annoying. It reminds people of that english teacher who knocked off a grade for a misplaced comma.

The hoi polloi understand Mr. Trump quite well, thank you very much. He speaks in the vernacular. That is why many are saying that he speaks to them, not at them. He is reminiscent of Ronald Reagan in that respect. Then again, 2016 is reminiscent of 1980.

cognito said...

#NeverTrump == #ImWithHollary