Running Scared

How can you tell that some Republicans are starting to take the prospect of a Kerry victory seriously?

They’re arguing that Kerry is actually ineligible to be President of the United Statesthanks to Section 3 of the 14th Amendment.

What does the Section in question say?

Section 3.
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.

Law professor Eugene Volokh summarizes the argument thusly:

Kerry, the argument goes, gave “aid or comfort” to the North Vietnamese by opposing the war, and by apparently meeting with a North Vietnamese peace delegation in Paris in 1971. One or both of these things (probably the former much more than the latter) may have emboldened our enemies and sapped our soldiers’ morale, thus giving the enemy aid or comfort. Kerry had previously taken an oath to support the Constitution when an officer of the United States (military officers, including lieutenants, definitely count). The Presidency is an “office” (see, e.g., art. II, sec. 1, cl. 5.) Therefore, the argument concludes, Kerry is disqualified.

Yes — they are seriously wondering if Kerry can be barred from the Presidency on the grounds that he was a traitor to his country for his actions during the Vietnam War.

Both Volokh and the Opinionated Bastard eventually get around to admitting that the charge is baseless — you can’t call someone a “traitor” just for protesting a war, and the only incident that goes beyond that they’ve managed to dig up, a trip he took to Paris in 1970 during which he met with all the different delegations to the peace talks (including the Communist delegation), frankly doesn’t sound that incriminating: he indicated when he told Congress of his trip in 1971 that he had been aware of the ban on individuals negotiating privately with foreign governments, and had observed it, so unless anyone has got proof that he didn’t they’re just trafficking in innuendo.

And that’s what this is really about — innuendo. It’s another example of people floating rumors to get them out there in circulation, even all the while denying that THEY believe them, so that they can’t be called to account for them later on. In other words, it’s just another case of Michelle Malkin-ism.

Look, kids, treason is a damn serious charge. Unless you’ve got some, you know, evidence, you really shouldn’t drag it out.

(And if Kerry really does win? Get ready for four years of this kind of stuff.)


Opinionated Bastard

October 20, 2004
6:40 pm

I don’t quite think your characterization of what either of us said is quite fair.
Volokh said the amendment won’t apply as his very first point. I said that I was suspicious of the whole thing when I originally got what I said was a “strange” email in my introduction. So I think we were both interested in it as an intellectual exercise more then anything else, and I think we both made that clear. In my case, my editor specifically asked me to write about it, because he was sick of hearing about Iraq.
When discussing the Paris trip, I also say that I thought it was naiveté, not treason.
You have a fact wrong: As far as meeting with “all” the peace delegations, When Kerry said he met with “both” peace delegations, it seems like he would mean both the Communist and non-Communist delegations. Except he actually said “Both the [North Vietnamese] and the [Viet Cong]”. That is, he met with both of the _Communist_ delegations. Weird but true. You left guys should just stay away from the VVAW tar baby…
Really, you should be glad someone on the _right_ put this wingnuttery to bed. 🙂

Jason Lefkowitz

October 20, 2004
7:10 pm

Heh, fair enough. And I do give credit to both you and Volokh for saying that this is wingnuttery at its best.
But if you think you’ve put it to bed, I honestly would be willing to bet you’re mistaken. This is how these innuendos get started — someone floats an anonymous e-mail, which gets picked up on the fringe blogs, which gets picked up on the mainstream blogs, which gets picked up by the news media. None of them actually gives credence to the story — they just report on *someone else reporting on it*. And so it gains credibility by proxy.
That’s what Chris Matthews was trying to get at when he told Michelle Malkin to put up or shut up on Hardball, and that’s what I was trying to get at in my post. It’s certainly not a dynamic that’s unique to the right — look at the way the “Bush was wired” story has developed, all on the basis of one indistinct image. But it’s how these things work.