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Constitutional Conservatives Should 'Just Say No' to Trump 2024: Declan M. Hurley

Constitutional conservatives’ primary worldly commitment is to the Constitution, which lists our fundamental freedoms, defines the national government’s limited powers, and frames a political structure oriented toward the maximization of liberty. Former President Donald Trump’s promises and record won over many constitutional conservatives in 2016 and 2020. However, Trump has shown that his second administration would be a disappointment to constitutional conservatives, who should take a principled pass on his 2024 bid even though polls show that he would beat President Joe Biden.

Trump’s Record Will Not Be His 2024 Roadmap

Factbase’s archive indicates that Trump has used the phrase “constitutional conservative” precisely once. However, shortly before Trump announced his 2016 bid, he aligned himself squarely with constitutional conservatives by tweeting this sage George Washington quote: “The Constitution is the guide which I never will abandon.” And, about a year later, Trump proclaimed, “We need SCOTUS judges who will uphold the US Constitution.”

Indeed, once Trump became president, he verbally defended American liberties against “government coercion, domination, and control.” He appointed scores of judges who have already conformed facets of American jurisprudence to a strict constructionism. He protected states’ sovereignty by letting them determine COVID-19 policy. And he worked to defang the administrative state, which burdens people of faith and makes a mockery of Article One: “All legislative powers . . . shall be vested in a Congress of the United States.”

President Donald Trump (photo: Gage Skidmore)

Trump’s sometimes ham-fisted ramblings aside, a constitutional conservative will identify one strong blemish on the pre-November 2020 Trump presidential record: his repeated attempts to disburse taxpayer funds by executive fiat. “No money shall be drawn from the treasury, but in consequence of appropriations made by law” is what the Constitution has to say on the matter. (The principle that the branch of government most directly accountable to the people should determine how to spend their hard-earned money dates back to England’s Glorious Revolution.)

On balance, Trump’s initiatives affirmed more than they scorned our Constitution’s limited-government thrust. But constitutional conservatives should back people who always, not intermittently, treat our Constitution as “the guide which I never will abandon,” and it will be easier to find such a presidential candidate in a primary than a two-way general election. Moreover, a second Trump administration would not follow the policy roadmap of the first.

Former Vice President Mike Pence, for one, would not have a place in a second Trump administration, whose hiring criterion would be personal fealty to the president. Pence’s absence would make a second administration’s initiatives decidedly less palatable to constitutional conservatives: Pence publicly identifies as one, and Axios characterizes him as a “driving force” behind the first Trump administration’s policymaking.

Furthermore, it appears that a second Trump administration—unlike the first—would premise judicial appointments on candidates’ personal loyalty to the president, not their commitment to the original public meaning of our Constitution. In a November 28 post on Truth Social, Trump bemoaned that once “Republican Judges” “get appointed, they go ‘ROGUE!’” and “come down hard on people before them to prove they cannot . . . in any way show favor to those who appointed them.” The former president added, “People, including me, are oftentimes shocked by the lack of courage and wisdom shown.”

Six days before that message from Trump, the Supreme Court declined to overturn, at his request, the D.C. Court of Appeals’ ruling that the Treasury must give the House Ways and Means Committee six years of his tax returns. None of Trump’s three Supreme Court appointees registered a dissent.

Unhappy with such “rogues,” Trump would seemingly opt for a different type of justice come 2025—one with the “courage” to adopt a different focus than our Constitution.

Trump’s Anti-Constitutional Conduct Since 2020 Election

My constitutional-conservative case against Trump does not rest solely on well-reasoned hypotheticals about whose advice he will take and which he judges he will appoint. His qualified commitment to constitutional conservatism demonstrably wasted away after he lost by 43,000 votes in the November 3, 2020, general election and by 74 electoral votes in the subsequent December 14 Electoral College vote.

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” for president, Article Two of our Constitution declares. Legislatures nationwide have individually determined that state popular votes determine which electors the states will appoint.

President Joe Biden won state popular votes in states with 306 electoral votes, so, as states certified their results, the Electoral College automatically came to consist of 306 people who pledged themselves to him and 232 who pledged themselves to Trump. Trump and his allies, citing voter fraud and procedural shenanigans, tried to convince courts to change states’ popular-vote tallies. Judges, many of them conservative and/or Trump-appointed, rejected his entreaties.

Simultaneously, Trump tried to convince legislatures to pick electors athwart those whom voters chose on November 3. His allegations of election malfeasance failed to persuade any legislature to override their state’s popular vote (even though the GOP controlled both chambers in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin). Biden’s 306 electors were set in stone.

“The Electors shall meet in their respective states and vote by ballot for President and Vice-President,” reads the Twelfth Amendment, and transmit results to the vice president. Statute designates the meeting date of the Electoral College as December 14, and, on that date in 2020, Trump’s defeat became official.

The amendment further dictates that the vice president then “shall, in the presence of the Senate and House of Representatives, open all the certificates [from the states] and the votes shall then be counted,” with the person with a majority of votes becoming president. (That constitutionally necessary joint session occurs every four years on January 6, according to statute.)

Trump ignored our Constitution’s clear ordering—states appoint electors before the Electoral College meets, all before congressional certification—by demanding that, on January 6, Pence unilaterally refuse to certify the results and “send them back to the States.” “The Vice President has the power to reject fraudulently chosen electors,” Trump contended on January 5, 2021.

With the same intensity as a living-Constitution scholar, Trump contorted the text of our great charter by reading the vice president’s responsibility to “open all the certificates [from the states] and the votes shall then be counted” as license to reject some states’ electoral votes. And Trump ignored the fact that the sovereign state legislatures, which have the constitutional authority to appoint electors “in such Manner as [they] may direct,” declined to override their states’ choices of electors either before or after the Electoral College voted. How could the vice president justifiably force states to reconsider electors whom legislatures did not reject?

Pence, in the end, performed his constitutional function—he tabulated the votes cast by each state’s electors—and refused to unconstitutionally overturn the election results. Meanwhile, less than two years later, Trump publicly incinerated what remained of his constitutional-conservative tendencies.

On December 3, 2022, he wrote, “[W]ith the revelation of MASSIVE & WIDESPREAD FRAUD & DECEPTION . . ., do you throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL WINNER, or do you have a NEW ELECTION?” No provision in our great charter permits the direct replacement of a constitutionally elected president by the man whom he defeated, absent a subsequent regularly scheduled general election. But that detail bothers Trump not at all: “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”

A few days later, Trump doubled down on his proposal for constitutional incineration by writing, “SIMPLY PUT, IF AN ELECTION IS IRREFUTABLY FRAUDULENT, IT SHOULD GO TO THE RIGHTFUL WINNER OR, AT A MINIMUM, BE REDONE.”

Whether fraud, procedural malfeasance, and Team Biden’s collusion with Big Tech affected the 2020 election results is a fine topic for sober debate, and the most constitutionally sound approach to the social media issue would be for the government to extricate itself from the regulation of Big Tech (and avoid amplifying the evils of regulation). What is not up for debate is our constitutional process for electing presidents—which has, for two centuries, simultaneously insulated Americans from despotism and tyranny of the majority. And a Republican’s disparagement of our Constitution should attract at least the same ire from constitutional conservatives as former President Barack Obama’s declaration that “I’ve got a pen, and I’ve got a phone.”

The Salisbury Example

A worthy model for constitutional conservatives is the third marquess of Salisbury (1830–1903). As a member of Commons, he helped Conservatives sink the Liberal ministry’s 1866 bill to enfranchise British towns. Tories rose to power; made Salisbury the secretary of state for India; and, in an about-face, proposed the 1867 Reform Bill to enfranchise the towns on looser terms than Liberals had suggested months prior. Salisbury implicitly and explicitly opposed the Tories’ bill throughout the legislative process, giving up his Cabinet post rather than rewarding Tories for proposing an unprincipled bill more radical than that which they had previously defeated.*

The 1867 Reform Act ultimately passed even without the support of Lord Salisbury. Nonetheless, his opposition to what he viewed as a bad idea—despite it coming from his side of the aisle—helped pave his way to three terms as prime minister.

Trump has become not only a repository for wrongheaded ideas but a skeptic of the constitutional order that made America “the longest enduring society of free men governing themselves without benefit of kings or dictators.” So, just as Salisbury fled the Conservative ministry when it duplicitously adopted Liberal ideas that he deemed abhorrent, constitutional conservatives should disassociate from Trump and recruit someone of good character who can credibly swear the oath to “preserve, protect, and defend the Constitution of the United States.”

* This paragraph comes almost word-for-word from an essay I wrote for my historiography class. My primary reference as I composed this text was Andrew Roberts’ Salisbury: Victorian Titan.