Thursday, November 03, 2016

My Barrett Lecture at UC Davis: The Election and Constitutional Change

by Michael Dorf

Tonight I have the honor to deliver the Barrett Lecture on Constitutional Law at the UC Davis School of Law. The lecture is named for constitutional law scholar and founding dean of the law school, Edward L. Barrett, Jr., who passed away three months ago at the age of 98. I am humbled to be giving the first lecture in this series since his death. Notable speakers to have given past Barrett Lectures include my long-ago boss Judge Stephen Reinhardt, former US Solicitor General Drew Days, and most recently Yale Law Professor Heather Gerken.

The title of my lecture is The Presidential Election and Constitutional Change. I will cover material that I have written about in two pieces published earlier this year: a Verdict column called The Future of the Supreme Court, Regardless of Who Wins the Election; and a symposium article called Donald Trump and Other Agents of Constitutional Change in the University of Chicago Law Review Online. The thesis of my lecture is that the outcome of the presidential election matters a great deal for constitutional law, but that its main relevance may not run through judicial appointments.

Lest I be misunderstood, I want to be clear that I will not argue that who, if anybody, fills the vacancy on the Court occasioned by Justice Scalia's death and any others that may arise in the next four years does not matter. I acknowledge that it matters a great deal. However, in Part I of my lecture (based on the Verdict column) I'll argue that on the most fundamental questions that we think the Supreme Court decides, appointments are less important than we commonly assume. And in Part II of my lecture (based on the U Chi L Rev paper), I'll point to various non-judicial-appointments mechanisms by which presidential politics and politics more broadly affect how We the People come to understand the Constitution.

Because of my travel schedule, all I'll add here in this short post is a preview of the conclusion of my lecture, which does not appear in either the column or the U Chi L Rev paper. Here is how I intend to wrap up.

Should Donald Trump win the election and should he implement some of his most radical proposals—the Muslim immigration ban or mass roundups and deportations of undocumented immigrants—his most lasting contribution to our understanding of the Constitution could be the eventual rejection of those policies if and when the country comes to regret them.

A Trump presidency could thus indelibly inscribe itself in the Constitution and constitutional law as a photo-negative. "Trump" would become a shorthand for new policies that we would come to see as grave constitutional errors. The name Trump would carry a connotation like the Alien & Sedition Acts, like the Black Codes, like the Korematsu case. All of that could happen without any Supreme Court case striking down Trump's overreaching.

Accordingly, when I say that the importance of the presidential election for constitutional change does not run chiefly through judicial appointments, I do not mean to say that the election is unimportant. Quite the opposite in fact. It is partly because the non-judicial constitutional stakes in this election are so high that the judicial stakes look somewhat modest to me.