The New York Times editorial board admitted Donald Trump’s plan to suspend Muslim travel into the United States is technically constitutional Wednesday, but added that “popular consensus” is the real authority on constitutional matters, not the Constitution itself or judicial precedent.
“Politicians, the legal community, scholars and the public at large are all a part of our continuing constitutional conversation,” the board writes in the editorial. “Clear popular consensus can establish constitutional norms, with or without the courts.”
Media outlets ran headlines denouncing Trump’s plan Monday and Tuesday, reflexively calling it “unconstitutional” and “probably illegal,” although due diligence quickly reveals otherwise. The Washington Post ran a headline calling the plan unconstitutional, even though the story admits it’s likely perfectly legal. (RELATED: Here’s How Trump Can Legally Impose Muslim Ban)
“His plan to bar U.S. citizens drew particular ire from legal experts, some of whom fumbled for words as they tried to explain its illegality, since none had considered the matter before,” the Washington Post reported.
The New York Times editorial board explains how “constitutional” doesn’t necessarily mean “constitutional” in the minds of some editors and journalists. “Would [Trump’s] proposal be constitutional?” the board writes. “The answer is not what you might think — but it also raises the issue of what, exactly, we mean when we say something is ‘constitutional’ in the first place.”
“Just because Mr. Trump’s proposal has a judicial pedigree, that doesn’t make it ‘constitutional’ in a broader sense,” the board adds. “The Constitution and the courts are not synonymous, nor do the courts have a monopoly on constitutional interpretation.”
“The court won’t get to rule on the Trump scheme,” the board concludes. “It now needs to take the cue from the rest of us and bring its reading of the Constitution in line with the public’s own, more progressive constitutional norms.”
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