Trump’s Continuing Assault on Constitutional Values

An AP story says, “The Trump administration has revoked the visas of six foreigners deemed by U.S. officials to have made derisive comments or made light of the assassination of conservative activist Charlie Kirk last month.”

To be clear, I don't think anyone should celebrate the assassination of Charlie Kirk; any such speech is offensive and stupid. But the First Amendment protects offensive and stupid speech just as much as it protects any other speech. Even the Trump administration (usually) realizes that they cannot take legal action against American citizens who say things that Trump finds offensive. But they have no problem punishing foreigners who are legally in this country.

To see why this is so horrible, and why this justifies the AI generated image with which I accompany this post, we need to make a distinction between legal rights and moral rights. As an example of a mere legal right, the FDA requires that food manufacturers give their address on any food packaging label, and this, in effect, gives each of us a legal right to know the address of the manufacturer of any processed food we buy. Or to take another example, the speed limit on I-95 in the northern part of Maine is 75 mph, which means that properly licensed drivers have the legal right to drive up to that speed. But neither of these is a genuine moral right. The state of Maine could change the speed limit to 70 mph without violating my moral rights, and the FDA could likewise change its regulations if that seemed advisable.

Legal rights are something that you have simply by virtue of the fact that the appropriate legal documents say so. Moral rights, by contrast, are something that it would be wrong for a government to transgress, even if they do it by passing a law.

Moral rights are essentially independent of the law, even if they are mentioned in legal documents like the Constitution. When Soviet bloc countries punished criticism of the government, they violated the moral rights of their citizens, even if they did not act contrary to any law that they promulgated. Indeed, the fact that communist regimes violated the moral rights of their citizens was one of the reasons that we held our own system to be superior.

The founding fathers conceived of the Bill of Rights--the first ten Amendments to the Constitution--as official legal protection of what were, irrespective of any written document, genuine moral rights. Thomas Jefferson wrote to James Madison that, “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.” We also see this attitude famously expressed in our Declaration of Independence when the signers say that it is "self-evident" that we have “certain unalienable rights.”

The Trump administration sees things quite differently. By taking legal action against foreigners simply because of their speech, Trump shows that he does not see the freedom of speech in the way Jefferson did: he does not see it as a moral right that “any person should have against any government.”

Rather, we can infer that the Trump administration views the First Amendment’s protection of freedom of speech as a mere legal right, a mere legal technicality. They presumably grant that the First Amendment stops the government from taking legal action against American citizens for speech that Trump doesn't like. (Well, maybe they don’t even see that much: FCC Chair Brendan Carr threatened legal action against ABC for fairly anodyne remarks by Jimmy Kimmel, and Trump himself has suggested that television networks should lose their license simply because they give negative coverage of him.)

But Trump, unlike the founding fathers, apparently does not recognize a moral right to free speech. (I'm not sure that Trump recognizes anything about morality at all; for him it all seems to be about self-interest, narcissism, and anything he can do to own the libs.)

Trump, far from making America great again, is assaulting the values that made this country great in the first place.