Monday, January 8, 2024

AN ORIGINALIST INTERPRETATION OF SECTION 3 OF THE 14TH AMENDMENT TO THE CONSTITUTION

 

Whatever the Supreme Court does in its decision about whether Donald Trump can be disqualified as a candidate for president in the 2024 election... 

"... I hope its opinion hews as closely as possible to the ordinary meaning of the constitutional text. That is, after all, the Supreme Court’s job. The Court’s job is not to reach statesmanlike compromises based on political judgments about how particular decisions will be received. Its job is to interpret a written document. (Adam Unikowsky, 9 January 2024)

  Adam Unikowsky expresses his hope that the Supreme Court will hew closely to “the ordinary meaning of the constitutional text” when interpreting Section 3 of the 14th amendment. Scholars who hew in this direction are often referred to as ‘originalists’ and their preferred theory of constitutional interpretation is called ‘originalism.’  The ‘ordinary meaning’ of the constitutional text provisions is the meaning that was understood by the framers, judiciary and the people at the time of text’s adoption.

Originalism should not be confused with Textualism.  Originalism is historical and looks to the past when interpreting the Constitution.  Textualism is unhistorical.  Textualism ignores the history of constitutional provisions and looks only at the plain text.  For example, the textualist reading of the First Amendment says that “Congress shall make no law… abridging the freedom of speech or of the press.”  The late justice Hugo Black wrote that if this is what the Amendment says, then this means “shall make no law” without exception.  Thus, on his reading, Congress shall make no law prohibiting the disclosure of military secrets, slander, libel or yelling “Fire” in a crowded theatre when there is no fire.  Of course, this is not what the Framers intended or what people in the 18th century understood by the First Amendment.  Hence, what an originalist must do is to look behind the text to discover the meaning of the Amendment in its historical context.

How should Section 3 be interpreted using the originalist theory of interpretation?  What did the Framers intend or understand when they wrote Section 3?

Section 3: Disqualification from Holding Office:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion   against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

In other words, if (1) a person has engaged in insurrection or rebellion against the Constitution or given aid or comfort to the enemies of the Constitution, and (2) that person has previously taken an oath to support the Constitution of the United States “as an officer of the United States… etc.”, then (3) they shall be disqualified from holding any office, civil or military, under the United States, or under any State.

For example, if a sitting U.S. Senator engaged in the insurrection of January 6, 2020 at the U.S. Capitol, then said Senator violated his oath to support the Constitution and will be disqualified from holding any office, civil or military under the United States or any other State.

Both the originalist and the textualist would agree that “disqualified” does not mean “indicted.”  If a a 24-year-old person files a form to stand as a candidate for the 8th district of California in the House of Representatives and is later found to be underage, then she is declared ‘not qualified’ to stand.  This is not an indictment. She has not violated criminal law.  And so it is with someone who is disqualified because she has violated her oath to the Constitution. 

So far, so good.  At this point, there is no debate about meaning between the originalist and the textualist.  However, some originalists have gone so far as to claim that there was no insurrection that took place on January 6.  They say this because their historical paradigm of an insurrection is the Civil War.  They agree with the dictionary definition that an insurrection is “an act or instance of revolting against civil authority or an established government.” But like the Civil War, it is a revolt that lasted much longer than the few hours of revolt that occurred at the Capitol on January 6. 

But this paradigm was rejected by the 1866 framers when they removed the phrase “the late rebellion” from an early draft of Section 3. There is no specific reference to the Civil War in the final revision.   

An important qualifier was also added: “those who were to be excluded from government service would have to have violated prior oaths to defend the constitution by having engaged in insurrection or rebellion against [it] or given aid or comfort to the enemies thereof.” (Portnoy).   What mattered to the framers was that those who will be disqualified from office violated their oath to support and defend the Constitution.  It does not matter whether the violation was in a civil war or in an assault on the Capitol.

Textualists have pointed out that the words ‘president’ and ‘vice president’ are not mentioned in Section 3 as “officers of the United States.”  (They are mentioned only in the phrase “elector of President and Vice-President.”)  Therefore, although electors can be disqualified from holding a government office, textualists would argue that a president or vice president is immune to disqualification.

Originalists, mindful of history, have pointed to the following brief conversation about these words that took place in the U.S. Senate in 1866:

"Why did you omit to exclude them?" asked Maryland Democratic Sen. Reverdy Johnson.

Maine's Lot Morrill jumped in to clarify.

"Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States,'" Morrill said, ending the discussion on that point.

Morrill’s response not only implies that Section 3 covers all those who hold a civil or military office, but it also implies that that the president and vice-president are understood to be civil officers under the United States.

Finally, there is disagreement about whether one who incites an insurrection or rebellion is
engaging in it.  The word “incite” means “to stir up, to urge on” and “engage” means “to enter into contest or battle.”  These definitions are of little help.  Stirring up or urging on might or might not count as a kind of entering into the fray.  To use an example from John Stuart Mill’s On Liberty, if I stand in front of a crowd of angry poor people assembled near the house of a corn dealer, and I stir up the crowd by shouting “Corn dealers are starvers of the poor,” and the crowd storms the house and kills the corn dealer, then I am as responsible for the death of the dealer as are the people who do the killing.  In this case, inciting merges into engaging.

I am inclined to think that if “giving aid or comfort to the enemies” is a violation of the oath to support the Constitution, then so must be “inciting the enemies to riot.”  If the President of the United States watches and waits while an angry crowd storms the Capitol, and does nothing to prevent the riot, then this deliberate omission makes the president partly responsible for the result even though he/she was not physically present in the assault.  An inciter is in the same causal position.  The inciter did not go into the Capitol with the mob, but he/she lit the match that led to their attack.

The 64 Dollar Question.  Will the U.S. Supreme Court uphold the Colorado Supreme Court’s decision to disqualify Donald Trump as a candidate for president in the 2024 election?

________________________________________

References

Bassin, Ian. Protect Democracy. December 2023. In deciding Trump’s ballot eligibility, the Supreme Court should apply the law without fear or favor.  https://protectdemocracy.org/work/trump-ballot-eligibility-colorado-supreme-court/

Black, Hugo. 1959. Concurring opinion in Smith v California.

CREW. 2023. The Precedent for 14th Amendment Disqualification. https://www.citizensforethics.org/reports-investigations/crew-reports/past-14th-amendment-disqualifications/   See the full table of past disqualifications from public office under Section 3:

Merriam-Webster Dictionary. 

Mill, John Stuart. 1861. On Liberty.

Portnoy, Steven. 19 December 2023.  What the framers said about the 14th Amendment's disqualification clause: Analysis. ABC News. https://abcnews.go.com/Politics/framers-14th-amendments-disqualification-clause-analysis/story?id=105996364 

Unikowsky, Adam.  9 January 2024.  Why the Supreme Court isn't constitutionally barred from resolving Trump's eligibility before the election. Newsletter  adamunikowsky@substack.com

 

 

 

 

 

 


Thursday, November 30, 2023

JOHN RAWLS ON THE PRINCIPLES OF A JUST WAR

 

Part I  Preface

In 1995, one year before his death, the renowned American philosopher John Rawls wrote an article titled “50 Years After Hiroshima." (Dissent Magazine). Rawls invited his readers to reflect on the question, “Was the bombing of the Japanese cities Hiroshima and Nagasaki really a great wrong, as many thought then, or is it perhaps justified after all?”

In August 1945, the atomic bombing of Hiroshima immediately killed 80,000 Japanese people.  Tens of thousands more died of radiation exposure.   Three days later another atomic bomb was dropped on Nagasaki, Japan, killing an estimated 40,000.  Most of those who died in these blasts were non-combatants and most of the non-combatants were children and women.

 In 2023, university students and many others are reflecting on and debating about a similar question.  “Is the bombing of Gaza City and other parts of the Gaza Strip orchestrated by the Israeli government really a great wrong, as some have recently said, or is it perhaps justified after all?”  

For many protesting students, there is no reflection to be made.  They know what is right and what is wrong. The debate is not quiet.  There have been hundreds if not thousands of reports of emotional university students loudly taking sides on the justice of the current Israeli-Hamas conflict, but without giving any explanation at all as to what the words “just war” means.  They have been barraged with photos and videos of death and destruction.   Emotions of retaliation and revenge take hold and moral judgements are made before the protesting students know anything more about the war than what the photos show. 

Rawls provides a template for rational reflection.  He answers the Hiroshima question (above) by setting out six moral principles that govern the conduct of war – jus in bello -- of democratic peoples. He assumes that the conduct of war by non-democratic dictatorial governments such as those in Japan and Germany were not guided by any principles that would qualify as ‘moral’.  Their end was “the domination and exploitation of subjected peoples, and in Germany’s case, their enslavement if not extermination.”  

Therefore, Rawls’ principles of just war will apply only to the conduct of the Israel government, not to the conduct of Hamas leaders.  The Hamas government of the people of the Gaza Strip, like the WW2 government of Japan and Germany is totalitarian. It is not a democracy of the people. The goal of Hamas’ leaders is not peace with Israel but the destruction of it through Jihad (Holy War).  There are no moral limits to jihadist acts of war so long as the acts achieve this goal.

Part II Facts about the Israel-Hamas War

A.    The war between Israel and Hamas started on October 7, 2023 when “scores of Hamas gunmen swept into Israeli towns and military bases near the border with Gaza, opening fire on people in their homes, on the streets, and at a music festival attackers fatally shot the elderly, women and young children, according to survivors; others were burned after attackers set their homes ablaze.” 

B.     Hamas has said the aim of the attack was “to free Palestinian prisoners, stop Israeli aggression on al-Aqsa Mosque, and to break the siege on Gaza.” (Washington Post)  Other supporters of Hamas said that the October 7 attack was a continuation of the 1948 Nakba (catastrophe) of Israel’s displacement of Palestinian Arabs (Al Jazeera).

C.     The vast majority of those killed in the Oct. 7 assault — around 70 percent — have been identified as civilians, not soldiers, by Israeli authorities. According to Israeli police, health officials have identified at least 846 civilians killed in the fighting.  Israel’s official estimate of the final death toll of the Oct. 7 attacks is about 1,400 people (including soldiers, police and foreign nationals). 

D.    Israel’s response to the Hamas attacks was almost immediate, starting with the bombing of sites in Gaza where Hamas fighters and their leaders might be hiding.  At this writing (27 November), the bombing has killed over 14,000 people in Gaza City and the Gaza strip.  Of the 14,000 killed, 69 percent or10,000 are women and children (Lauren Leatherby, New York Times).  

E.     Israel’s foreign minister Eli Cohen said, “We reject outright the UN General Assembly despicable call for a ceasefire. Israel intends to eliminate Hamas just as the world dealt with the Nazis and ISIS (Times of Israel).

Part III Six principles guiding a just war.

Rawls announces at the beginning of his article that the bombings of Japanese cities were “very great wrongs.” He sets out six principles that guided him to this conclusion. Here is a brief summary of each principle. 

1.      The aim of a just war waged by a decent democratic society is a just and lasting peace between peoples, especially with its present enemy. 

2.      A decent democratic society fights only against nondemocratic societies that caused the war and whose aims threaten the security and free institutions of democratic societies.

3.      A decent democratic society will defend itself only against those who are responsible for organizing and bringing on the war (the principle of responsibility).  Civilians are not responsible and thus will not be attacked.  Except the upper ranks of the officer class, soldiers are also not responsible for the war because they are conscripted. But “the grounds on which they may be attacked directly are not that they are responsible for the war but that a democratic people cannot defend itself in any other way.”

4.      A decent democratic society must respect the human rights of the members of the other side. Every human (by definition) has these rights, including enemy soldiers and civilians.  “In the case of human rights in war, civilians…can never be attacked directly except in times of extreme crisis.”  An extreme crisis exists only when the democratic society is on the verge of losing the war and will have “enormous and uncalculated moral and political evil” imposed on it by the enemy.

5.      Democratic peoples should foretell during war the kind of peace they aim for and the kind of relations they seek between nations.  This will show the public the nature of their aims and the kind of people they are.

6.      Practical means-end reasoning in judging the appropriateness of an action or policy for achieving the aim of war or for not causing more harm than good should always be framed within and strictly limited by the preceding principles (1-5).  War plans and strategies, and the conduct of battle must lie within their limits, except in times of extreme crisis.

Part IV Using Rawls' Principles when Asking Questions About the Justice of the Israel-Hamas War

a.   Does Israel aim to achieve a “just and lasting peace” with the Hamas government of Gaza?  (Principle 1).  If not the Hamas government, then with whom does Israel aim to achieve a just and lasting peace?

b.  Is the Hamas leadership threatening the security and free institutions of a democratic society? (P 2). 

c.   Is Israel’s bombing of Gaza consistent with the Principle of Responsibility, that is, is Israel defending itself only against those who are responsible for organizing and bringing on the war in a way that does not harm those who are not responsible for organizing and bringing on the war (P3)?

d.  Is Israel respecting the human rights of all the people of Gaza, including enemy soldiers and civilians?  Or is this a war of extreme crisis in which the human right to life can be ignored (P4)?

e. Has Israel announced or foretold the kind of peace they are aiming for and the kind of relations they seek between themselves and the enemy (Hamas) and/or the people in the Gaza Strip? (P5)

f. Is Israel using means-end reasoning in a way that is consistent with P1 - P5, assuming that defending themselves against Hamas is not an extreme crisis?.

Part V Conclusion and a final question:

John Rawls writes, “It is the task of the student of philosophy to look to the permanent conditions and the real interests of a just and good democratic society.” He finds it “hard to understand” why it was thought at the time by many that questioning the morality of the atomic bombing of Hiroshima and Nagasaki was “an insult to the American troops who fought the war.” 

Rawls responds, “It can’t be that we think we waged the war without moral error!”  Just and decent civilized societies “depend absolutely on making significant moral and political distinctions in all situations,” including especially the atomic bombings that killed hundreds of thousands of people in the two cities of Japan.

I leave students of philosophy with a final question. What do you think?  Is the Israel-Hamas War being conducted without moral error?  Are there significant moral and political distinctions on both sides that should be made in declaring whether this is or is not a just war? 

References:

Leatherby, Lauren. 25 November 2023. “Israel Gaza Death Toll.” New York Times https://www.nytimes.com/2023/11/25/world/middleeast/israel-gaza-death-toll.html

Live Blog. Times of Israel. “Cohen Slams Despicable UN Resolution Urging Ceasefire.” 27 October 2023. https://www.timesofisrael.com/liveblog_entry/fm-eli-cohen-slams-despicable-un-resolution-urging-ceasefire/

Rawls, John. 1971. A Theory of Justice. Harvard U.P.

Rawls, John.  Summer 1995.  “50 Years After Hiroshima.” Dissent Magazine https://www.dissentmagazine.org/article/50-years-after-hiroshima-2/ 

Suleiman, Ali Haj. 12 November 2023. “For displaced Palestinians in Syria, Israel war evokes Nakba and solidarity.” Al Jazeera.  https://www.aljazeera.com/features/2023/11/12/for-displaced-palestinians-in-syria-israel-war-evokes-nakba-and-solidarity

Washington Post. October 17, 2023. “The Israel-Hamas War Reasons Explained.” https://www.washingtonpost.com/world/2023/10/17/israel-hamas-war-reason-explained-gaza/