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Politics • Education • Writing
No, the 14th Amendment Can’t Disqualify Trump
August 14, 2023

Several academics—including members of the conservative Federalist Society— are now arguing that Section 3 of the 14th Amendment prohibits Donald Trump from becoming president. They focus on the language that prohibits anyone who “shall have engaged in insurrection or rebellion… or given aid or comfort to the enemies thereof” from holding “any office.” The amendment provides no mechanism for determining whether a candidate falls within this disqualification, though it says that “Congress may by a vote of two-thirds of each house, remove such disability.” Significantly, the text does not authorize Congress—or any other body or individual—to impose the disqualification in the first place.

A fair reading of the text and history of the 14th Amendment makes it relatively clear, however, that the disability provision was intended to apply to those who served the Confederacy during the Civil War. It wasn’t intended as a general provision empowering one party to disqualify the leading candidate of the other party in any future elections.

First, the text. Section 4 of the 14th amendment provides the following: “But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave.”  It seems clear that this provision was intended to apply to a particular insurrection and rebellion—namely the Civil War that resulted in the “emancipation“ of enslaved people. There were no slaves to be emancipated in the United States after that war.

Moreover, the absence of any mechanism, procedure or criteria for determining whether a candidate is disqualified demonstrates that the amendment did not lay down a general rule for future elections involving candidates who were not part of the Confederacy. It was fairly evident who participated in the Civil War on the part of the South. No formal mechanism was needed for making that obvious determination. If the disqualification had been intended as a general rule applicable to all future elections, it would have been essential to designate the appropriate decision maker, the procedures and the criteria for making so important a decision.

In the absence of any such designation, it would be possible for individual states to disqualify a candidate, while others qualify him. It would also be possible for the incumbent president to seek to disqualify his rival, or for a partisan congress to do so. There is no explicit provision for the courts to intervene in what they might regard as a political question. So elections might be conducted with differing interpretations of eligibility and no procedures for resolving disputes about them. It is absolutely certain that if Trump were disqualified by some person or institution dominated by Democrats, and if the controversy were not resolved by the Supreme Court, there would be a constitutional crisis.

Finally, there is the hypocrisy of some who argued in defense of race-specific affirmative action that the equal protection clause of the 14th Amendment should be interpreted in light of its post-Civil War history to protect only previously enslaved people and their descendants, rather than members of the white majority. They would interpret the equal protection clause narrowly and limited by its immediate history, while interpreting the disqualification clause broadly to apply to all candidates in all elections. A fair reading of the amendment leads to the opposite conclusion: the broad language of section 2 of the equal protection clause (“nor shall any state… deny any person within its jurisdiction the equal protection of the laws”) strongly suggest general application without being time-bound; whereas the more specific language of sections 3 and 4 (referring to emancipated slaves and using words that were commonly used to describe the confederate insurrection and rebellion against the Union) suggests a more time-bound application.

Interpreting this post-Civil War amendment as a general provision for disqualifying candidates who some people may believe participated in what they regard as an insurrection or rebellion—as distinguished from a protest or even a riot—would create yet another divisive weapon in our increasingly partisan war. It would be used by Republicans against candidates who may have supported (gave “aid or comfort” to) riots such as those that followed the killing of George Floyd or other violence-provoking events.

The Constitution articulated limited qualifications for presidential eligibility. Beyond those neutral criteria, the decision should be made by voters, who are free to consider the participation of a candidate in activities with which they disagree. Unless an amendment was clearly intended to further limit these qualifications, the voters are the ones to decide who is to be their president. The vague language of the 14th Amendment falls far short of what should be required for so radical a departure from our electoral process.

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How the First Amendment Saved Jamie Raskin’s Father | Opinion

I like Congressman Jamie Raskin (D-MD). He was my former student at Harvard Law School, a distinguished professor of constitutional law and now a progressive member of Congress leading the House impeachment managers in their effort to have the Senate convict and disqualify former President Donald Trump.

During one of his Senate speeches this week, he quoted his late, great father Marcus Raskin. I also knew Marcus: I met him, a prominent left-wing intellectual, when he was indicted for conspiracy to obstruct the Vietnam War effort by encouraging young men to resist the draft. He coauthored a call to resist illegitimate authority and stood trial along with doctor Benjamin Spock and others who advocated the burning of draft cards, break-ins at draft boards and other unlawful actions to obstruct the war effort. Many young people did what was advocated and were punished for their unlawful acts.

Marcus, who was charged only with inciting these unlawful acts by others, was represented by my mentor, teacher and dear friend, General Telford Taylor, who had been America's chief prosecutor at the Nuremberg trials. I consulted with Taylor on Marcus' defense, which ultimately prevailed.

Unsurprisingly, the defense was that the First Amendment protected Marcus’ advocacy of resistance to the draft, even if such resistance then took a form of unlawful actions by others. Civil libertarians and liberals from all across the country rallied to the defense of “the Spock 5,” invoking the First Amendment.

The jury acquitted Marcus, and the court of appeals reversed the convictions of the other defendants. They were all saved by a broad reading of the First Amendment.

Several years later, Marcus was once again protected by a broad reading of the First Amendment, when he served as an intermediary between Daniel Ellsberg, who unlawfully stole the Pentagon Papers, and The New York Times, which published them despite their being classified. But for the First Amendment, Marcus would have been charged with conspiracy to publish classified material.

Now, Marcus’ son Jamie is quoting his father in a speech that would cut the heart out the very First Amendment that twice saved his father. If Jamie Raskin’s current view of the First Amendment had prevailed back in the day, his father would likely have been convicted of two felonies. If President Trump incited his followers to commit unlawful conduct, so did Marcus. I believe that neither incited violence and that both were protected by the First Amendment.

Nor is he alone. Hundreds of members of Congress, academics and ordinary Americans seem willing to compromise our fundamental freedoms of speech, expression and assembly in order to create a “Trump exception” to the First Amendment.

I would have thought that Jamie Raskin—in light of his history as a constitutional law professor, his family history under the First Amendment and his own protests against the 2016 election—would be leading the charge to protect the First Amendment. But no! He is leading the charge to compromise President Trump’s free speech rights—and thus the rights of all Americans to express controversial, even wrongheaded and provocative, views.

Jamie Raskin has sought to distinguish his father’s invocation of the First Amendment from Donald Trump’s on the ground that his father was an ordinary citizen protesting the actions of the government, whereas President Trump was the government itself. But the First Amendment recognizes no such distinction. Moreover, President Trump was protesting the actions of other branches of government—wrongly in my view, but constitutionally nonetheless.

Marcus Raskin’s broad invocation of the First Amendment to protect his advocacy of unlawful acts of protest sets the correct standard under which such constitutional protections for speech should be judged. Jamie Raskin’s far narrower and more partisan view of the First Amendment is inconsistent with that view. I hope that the next time Jamie Raskin quotes his wonderful father, he will remind his listeners how the same First Amendment that he is now seeking to narrow protected his father’s just and righteous protests against the Vietnam War—as well his own unrighteousness protests after the 2016 presidential election. Free speech for me and my father, but not for Donald Trump, is not the American way.

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Anti-Semitism Will Get Worse if It Becomes a Good Career Choice

There are plenty of committed antisemites out there who really believe that the Jews and Israel control the world and cause all its problems. These crackpots have always existed. Way back in the 19th century, August Bebel characterized antisemitism as “the socialism of fools.” It is still that: Many socialist fools who know nothing about the Middle East have become virulent anti-Israel bigots, with some crossing the line to overt and unapologetic antisemitism. The Democratic Socialists of America requires its members to be anti-Israel, regardless of what Israel does or doesn’t do. That is the blatant bigotry of fools, even if they, in their ignorance, actually believe it.

But some cynical self-servers who don’t really care about these issues have seen the increasing acceptability of Jew hatred as an opportunity to burnish their brands, increase their clicks, and make more money.

Take for example Tucker Carlson, who when he was at Fox News didn’t express the bigoted views he now promotes – at least not publicly. Before becoming the “antisemite of the year” (according to a monitoring group) and capitalizing on his newfound bigotry, Carlson had condemned antisemitism as an evil. I have no idea whether he was hiding his actual bigotry to keep his job at Fox. But after he was fired, he began to look for a new audience. He selected the rapidly increasing right-wing anti-Israel fringe of the Republican Party that shared some of the nativist and isolationist views he already held.

Turning those views into a full-blown anti-Israel and anti-Jewish ideology was not a long stretch. But by directing his nativism and isolationism squarely at the nation-state of the Jewish people and its supporters, Carlson guaranteed himself an automatic audience from hundreds of thousands or more Jew haters out there looking for a justification for their bigotry.

Similarly, Candace Owens has increased her clicks – and her income – by becoming more extreme in her anti-Israel and anti-Jewish bigotry. Other podcasters, comedians, and influencers have followed suit, recognizing that Jew hatred is good for business: David Chapelle, Michael Che, Tony Hinchcliffe, and Theo Von have faced criticism for either incorporating antisemitic tropes into their content or providing a platform to individuals who promote those views.

It hasn’t always been that way. Until recently, it was generally more advantageous to one’s brand and career to be pro-Israel or neutral. Today being even moderately pro-Israel is bad for business – especially if the business involves the media, academia, politics, or other public activities.

This change can be dated to Oct 7, 2023, when Hamas terrorists and Gaza civilians broke down border fences and murdered 2,500 Israelis, nearly all civilians, and kidnapped several hundred more. Even before Israel responded to this brutal violation of an existing cease fire agreement by sending troops into Gaza to prevent threatened recurrences, the tide began to change. It began on university campuses, then in the media and eventually among politicians, especially Democrats. Now, it has come almost full circle. What used to be unprofitable to say and do has become good for business.

This change is not attributable solely to Israel’s military responses in Gaza, Lebanon, or Iran. It probably would have occurred even if Israel had done nothing in response to the increasing threats to its very existence. Israel’s military actions have provided an excuse for the increasing Jew hatred throughout the world. But even critics of Israel’s actions cannot plausibly deny that the exponential growth in antisemitism and anti-Israelism reflects a disproportionate and double standard response to Israel’s self-defense military actions.

What we are experiencing has little to do with human rights in general. If it did, the primary focus would be on far more serious human violators, such as China, Russia, Iran, Turkey, and Sudan. Israel is being targeted because it is the nation-state of the Jewish people, not because of its human rights record – which is better than most countries faced with comparable threats. Israel is the only country whose very existence is challenged by so many enemies. It is condemned not because of what it does, but because of what it is.

The selective condemnation is getting worse, as is the antisemitism that accompanies it. And it will get even worse if it is rewarded by clicks, money, and acceptance. As long as Jew hatred remains good for business, as it did in Germany in the 1930s, in many Arab countries in the 1950s, and in Europe and parts of the United States today, it will get worse.

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Schlossberg wants to inherit a House seat

If John Kennedy Schlossberg‘s middle name were Smith, would anyone be voting for him? He’s done nothing to earn any votes. The only thing he’s done is make a fool of himself on social media. He may not be the first nonentity to seek elective office based on nothing more than clicks, but he is the most famous. Or infamous!

I’ve known him casually from Martha’s Vineyard, where he is seen as “Caroline’s spoiled brat kid.” No one takes him seriously.

I once gave him some advice about law school, and then he reciprocated by posting the following about me: “Alan Dershowitz if you can hear me I need your help, I’ve been trying to reach out to you. I’m in deep s­-­-­t, dude. I’m all over the Epstein documents, there’s all sorts of credible evidence. Everyone knows I killed my wife, I’ve got a thousand sexual assault cases against me, I look like a human penis. I’m completely irrelevant and I’ve never had consensual sex … Oh wait, s­-­-­t, that’s you.”

These were of course complete fabrications, as he later admitted to me privately. He tried to apologize — again privately — claiming it was intended as a joke. But it wasn’t funny; it was nasty and libelous.

I could have sued him for defamation and won, but decided instead to write this column, because the best answer to bad speech is good speech and the best response to lies is truth. So here is the truth about Jack the joke. Or Jack the jerk. And why he should never become Jack the nepo congressman.

As far I can tell, he never held a responsible job for very long. He apparently lives off his inheritance. I doubt he makes a living from his nutty social posts that include the following: “True or false: Usha Vance is way hotter than Jackie O” and implying that he’s having a “baby with the Second Lady.”

Trolling RFK Jr., Schlossberg previously wrote a recipe for a Make America Healthy Again “energy ball” cocktail, which he claimed should include: “2 oz of Jew blood (Ashkenazi not Sephardic), 4 cups of male jizz. Baked at 300 degrees until totally dry like your wife,” referring to actress Cheryl Hines.

His posts weren’t funny. They were sick and nasty. But even if they had been funny, that would not be a basis for running for Congress. He has simply done nothing to warrant being elected. Nor has he presented ideas that deserve serious consideration. They are platitudes and cliches not policies. They are simply done to get clicks by their very outrageousness.

With regard to the subjects on which he has sought to express views, such as Israel, he has been muddled and confusing. He seems uninformed on most issues, despite his Harvard law degree. He is campaigning on his face and name, not on his views and policies. He has ignored several invitations to participate in candidate forums, for understandable reasons.

Anyone thinking about voting for this name (that’s all you would be voting for) should look themselves in the mirror and ask why you have been duped. Is it because Nancy Pelosi foolishly endorsed him without giving any reasons, other than that he’s Caroline’s kid? Is it because you like the Kennedy name? It certainly can’t be on the merits, because there are several credible candidates running against him.

It would send a terrible message to young people about hard work, accomplishments and meritocracy if he were to beat these more qualified candidates, or even get a lot of votes while losing. So don’t vote for him. It would reflect poorly on you and our nation.

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