Clinton's Constitutional Contempt

By Jacob Sullum

October 26, 2016 5 min read

Donald Trump claims he has read the Constitution. If so, he did not retain much.

As a Yale Law School graduate, Hillary Clinton presumably has a better idea of what the Constitution says. But as she showed in her debate with Trump last week, that does not mean she cares.

Clinton promised her Supreme Court nominees "will stand up and say no" to Citizens United v. Federal Election Commission. As usual, Clinton neglected to mention that it involved suppression of a movie that made her look bad.

In Citizens United, the Supreme Court concluded that a conservative group organized as a nonprofit corporation had a First Amendment right to present Hillary: The Movie on pay-per-view TV while Clinton was seeking the Democratic presidential nomination in 2008. Her determination to overturn that decision by appointing justices who agree with her that blocking the movie was consistent with freedom of speech — or, failing that, by pushing a constitutional amendment that blesses such self-serving censorship — looks no less petty and constitutionally insensitive than Trump's ambition to "open up our libel laws" so he can more easily use the legal system to punish and silence his critics.

Clinton's eagerness to suppress speech that offends her is also apparent in her history of supporting laws that the Supreme Court later found to be inconsistent with the First Amendment, including the Communications Decency Act, the Child Online Protection Act, and restrictions on the sale of violent video games. She even tried to ban flag burning after the Court had deemed such laws unconstitutional.

More recently, Clinton has joined Trump in pre-emptively dismissing First Amendment concerns about efforts to eliminate online speech that encourages terrorism. "You're going to hear all of the usual complaints — you know, 'freedom of speech,' etc.," Clinton said after the terrorist attack in San Bernardino last December.

She was right. As the American Civil Liberties Union notes in a report on Clinton's positions, "Further restricting content that is potentially terrorism-related would not only lead to arbitrary, haphazard enforcement, but it also would inevitably sweep in speech that reflects beliefs, expressive activity, and innocent associations with others that are protected by the First Amendment."

Unlike Trump, Clinton is hostile to the Second Amendment as well as the First, notwithstanding her assurances to the contrary. During last week's debate, she said the Supreme Court should not have overturned a District of Columbia law that she described as a "reasonable regulation" aimed at protecting "toddlers" from gun accidents by promoting safe firearm storage.

Clinton did not mention that the D.C. law banned ownership of handguns, the most popular weapons for self-defense, and required that long guns in the home be kept unloaded and either disassembled or disabled by a trigger lock at all times, making it impossible to legally use them for self-defense. Apparently the "individual right to bear arms" that Clinton claims to support does not include the right to own a handgun or the right to use a rifle or shotgun for self-defense in the home, which the Court recognized as a "core lawful purpose" under the Second Amendment.

When it comes to the Fourth Amendment, Clinton's support for the PATRIOT Act and encryption limits illustrates her tendency to sacrifice privacy in the name of security. Clinton's warmongering, including her advocacy of President Obama's illegal and disastrous intervention in Libya's civil war, shows she has little respect for the Constitution's limits on executive power, just as her belief in a federal government that has a solution for every problem shows she has no regard for the principle that Congress may not exercise powers the Constitution does not grant.

Trump's blatantly unconstitutional positions, such as his support for revoking birthright citizenship and his openness to registration of Muslims, tend to make a bigger splash than Clinton's. But Clinton clearly poses a bigger threat in at least one respect: She will be our next president, and Trump won't.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at

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