The Opinionated Bastard

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.

Reading it over, it seemed that they’d edited the extraneous bits about state offices and such, but hadn’t changed its basic meaning. “Well,” I thought, “maybe that does apply. It’s probably just some sort of junk left in the Constitution from the Civil War though. I know, I’ll ask an expert”. So I sent off an email to an internet friend of mine who is an expert in constitutional law. I fully expected him to say: “Nah, don’t worry about it.”

Instead he wrote back: “I find the argument to be unsound, though not silly…its a good question.” Translated from Lawyer to English, that means a court might have to decide. They’d probably lose, but still…

I was flabbergasted. I mean, this election has been bad enough with people re-fighting the Vietnam war. But re-fighting the Civil War? Imagine yet another election thrown into court, or worse, Congress! The horror…

So I started doing some research. The 14th amendment was proposed in 1866, and ratified in 1868. While the civil rights clause in section 1 is often cited, and there is quite a bit of case law discussing it, not so for section 3. The intent of section 3 was clearly to block Confederates from being in Congress during the Civil War. It was also probably setup so that Congress could eventually allow Confederates back into Congress, when they so chose.

Which brings us to the first point. Has Congress removed said disability? At President Grant’s request in 1872 as part of the Reconstruction, they exempted all but 500 Confederates. In 1898, they even exempted those confederates. Unfortunately, they exempted them for acts prior to 1898. So Congress has not “removed such a disability” from anyone since 1898, so it still applies!

There are a couple of other niggling lawyer points, but the bottom line is that the act probably applies to President Bush, Senator Kerry, Senator McCain, Arnold Schwarzenegger, etc. That is, anyone running for public office can’t have engaged in insurrection, rebellion…given aid or comfort. Of the people I just listed though, this is really only an issue for Kerry because of the wide extent of his anti-war activities during the Vietnam War. I’ve tried to stick here to things I could independently verify, ignoring most of the rampant allegations that have been thrown out about Kerry, but even so he is in danger here.

Now as far as rebellion and insurrection goes, Kerry as far as I know only really has to worry about a single incident. While Kerry was a member of Vietnam Veterans Against the War, some nutjob proposed at a meeting where he was present the assassination of leading pro-war senators. Not surprisingly, said nutjob was voted down. I think Kerry’s probably OK here. Hot-headed political discussion is not an insurrection, and there’s always some nut at any political meeting saying weird things. Reading transcripts of what some of our founding fathers said while discussing our Constitution would shock quite a few of you who think that this election is partisan.

Aid and Comfort is the next phrase to examine. aid and comfort has an interesting history. This text was specifically chosen to echo the Constitutional definition of treason. It seems that under English law, you could be punished for treason for almost anything. Our founding fathers, peeved at this, rather narrowly defined treason and enshrined that definition in the Constitution. It’s pretty clear that the framers of the Constitution wanted to allow typical domestic political activities to be exempt. Given the history of the time (The Shays’ Rebellion had just happened) they were having a hard time balancing domestic freedom with the practical need to define treason. So aid and comfort is fairly hard to nail down. It wasn’t really until after World War II that the term was really usefully defined, with the Supreme Court making its first review of a treason conviction in 1945 in Cramer v. United States. For our purposes, Chandler v. United States in 1948 is also important. [*]

A working definition of aid and comfort would then be something like “the sale of provisions to an enemy in wartime, or the conveying of intelligence to him, or the proffer of counsel and assistance to his agents” [*]. A further requirement is that the act has to be overt, that is, you have to actually intend to aid the enemies of the United States.

By this definition, most of Senator Kerry’s anti-war activities are obviously just freedom of speech. Misguided in many cases, but most of them would presumably still fail the overt test. There’s only thing that Kerry did specifically that could possibly qualify. His honeymoon.

During Kerry’s honeymoon, he traveled to Paris. While there, according to his own testimony before the Fulbright Committee, he “talked with both delegations at the peace talks, that is to say the Democratic Republic of Vietnam [North Vietnamese] and the Provisional Revolutionary Government [Vietcong].” Note that when Kerry referred to both sides here, he is referring to both communist delegations which is a little weird, but I digress. [*]

Now this was probably, at best, a colossally stupid thing for him to do. But he did it. In fact, by his own admission, he went to Paris at least three times. He said visits in his 1971 Fulbright testimony in April 1971, but I can only document two: There was the honeymoontrip in May of 1970, and another one in July of 1971. Its these meetings where it gets dicey for Kerry. All we have are questions though: What did Kerry talk to them about? Did he offer the PRG any negotiating advice? If so, that would definitely be an overt proffering of counsel or assistance. [*]

I suspect that Kerry kibitzing at the peace conference was mostly well-meaning naiveté. Naiveté that he’s since outgrown even if Jesse Jackson hasn’t, but naiveté is not an overt action. So this point as well is probably a loser, unless for some reason, some member of the Vietnamese delegation comes back from the dead to testify that Kerry was actually helpful during the negotiations. I don’t see that happening.

So as my expert pointed out, the argument is unsound. It might take a court to decide that, but hopefully not, the chad election was bad enough. For me, it was an interesting trip through our nation’s history, from the Shays’ Rebellion, through the Civil War, stopping during the Vietnam period for some Paris sightseeing, before moving on to the current election.

On the other hand, I limited this article to only things I could verify myself about VVAW that Kerry specifically had a hand in. Its quite possible that someone could end up documenting something that Kerry did do that would meet the overt test…

[UPDATE]

Eugene Volokh, who was actually the expert I cited above (he didn’t want to go public until he was ready) has written his own take on the subject which is obviously has a much better legal foundation. To quote his “bottom line”:

But for the purposes of the Treason Clause, and I suspect of section 3, the test isn’t simply whether the actions help the enemy, or help the enemy through improper means, or help the enemy through improper means with the knowledge that they will help the enemy. If Kerry’s purpose was not to help the North Vietnamese, but to help the United States or to help maintain U.S. compliance with its own laws and policies related to military conduct, then he’s not covered. And I have no reason to think that Kerry’s purpose was indeed anything other than to help the United States, whether or not his actions in pursuit of that purpose may have been misguided or excessive.

Eugene and I agree on the legal point of view (which is good because I really know nothing about the law, and his analysis is much better then mine). Where I think we disagree is that even Kerry’s intent was to ultimately help the United States, if someone could dig up some overt action of Kerry to help the North Vietnamese in the 20,000 pages of FBI documents about the VVAW posted online, they could throw the election into turmoil, even if they might have a tough legal case.

I’m reminded of the West Wing episode where CJ decides that what really needs to happen is that some investigation needs to be done not by a fair, objective third party, but by a stupid, partisan, bickering bitch fest: The US House of Representatives…

The last election being decided in the Supreme Court was bad enough, what if Congress had to decide? Gah…

Of course, any action on this front would probably backfire on the Republicans, so “cooler heads” would probably prevail…before the election. After the election though…