John Kerry's Constitutional Conundrum
Written by Raymond Kraft
Thursday, October 14, 2004
On June 13, 1866, in the immediate aftermath of the Civil War, Congress
passed the 14th Amendment to the Constitution of the United States, which
was ratified by the states and became part of our Constitution on July 9,
1868.
The 14th Amendment, or Article 14, is commonly known as the ''Equal Rights
Amendment,'' for it contains in Section 1 the now-famous injunction that
''No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive
any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the
laws.'' This section has been the pivot point for much of the most important
legislation and jurisprudence of the last half century.
And, in the shadow of Section 1, the rest of Article 14 has been mostly
ignored and largely forgotten, because much of it deals with the
consequences of insurrection and rebellion within the United States, and we
haven't had many of those since 1868.
But lurking in the heart of Article 14, Section 3, is a very important and
potent clause of our Constitution which was originally adopted to bar
officers of the United States military and members of Congress who had
defected to the Confederacy, or given aid and comfort to the Confederacy,
from Federal office.
And Article 14, Section 3, now becomes John Kerry's Constitutional
Conundrum.
I quote in full:
''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.''
Constitution of the United States, Article 14, Section 3 (emphasis added).
When John Kerry joined the navy and became a commissioned officer, he took
an oath, an oath to protect and defend the United States and the
Constitution of the United States against all enemies.
When he returned from Vietnam, while still a naval officer, John Kerry
quickly became an anti-war protester, and a prominent leader of the anti-war
activist organization, Vietnam Veterans Against the War.
While giving him the benefit of the doubt, I will assume that John Kerry
intended his activism to shorten the war and save lives. But he made a
catastrophic error in judgment. It did not. It prolonged the war, and it
cost more American lives, and more Vietnamese lives. To be blunt, the
anti-war activism of John Kerry and others like him had the unintended
consequence of killing people, and their blood is on his hands.
How many people? It is impossible to know, with any certainty, but in his
1985 memoir, North Vietnamese General Vo Nguyen Giap wrote that if it had
not been for anti-war activists such as John Kerry, North Vietnam,
militarily beaten after the Tet Offensive, would have surrendered; but the
anti-war movement, and in particular John Kerry's congressional testimony in
April 1971, convinced the North Vietnamese that if they could hold on a
little longer the growing anti-war movement and sentiment in America would
turn America's military victory into a political defeat, and North Vietnam's
military defeat into a political victory.
John Kerry was the point man for the Vietnam Veterans Against the War, and
with his April 1971 testimony before Congress, under oath, charging that
Americans in Vietnam were committing war crimes on a daily basis as a matter
of operational policy, he gave the North Vietnamese what they hadn't been
able to get out of American POWs in the Hanoi Hilton: a confession of war
crimes. A false confession, but a confession nonetheless.
An ex-POW, now Senator John McCain, wrote in an article for U.S. News &
World Report (14 May 1972) that John Kerry's testimony was ''the most
effective propaganda tool they had to use against us.'' Today, John Kerry's
photograph is prominently displayed in the room of tribute to American
anti-war protesters in the Vietnamese Communist War Remnants Museum in Ho
Chi Minh City (formerly Saigon). You can go see it at www.WinterSoldier.com.
Later, while still a naval officer, John Kerry met illegally with a North
Vietnamese delegation in Paris to conduct unauthorized private diplomacy,
for which he is reported to have lost his top secret security clearance, and
although the documentation is not fully public (John Kerry will not release
his full service records) there is reason to believe that he may have
received a dishonorable discharge (see The New York Sun, October 13, 2004,
''Mystery Surrounds Kerry's Navy Discharge.'')
Because of the anti-war activism of John Kerry and others like him, the
Vietnam war lasted several years longer than it might have. Several thousand
American names are engraved on The Wall now, names of men who died after
John Kerry took up the enemy's cause, men who might otherwise be alive
today. And after the United States, internally defeated by the anti-war
politics of the American left, abandoned South East Asia, more than four
million Vietnamese and Cambodians died in the communist purges that
followed.
Today in the presidential campaign, John Kerry continues to give aid and
comfort to another enemy, calling America's war on terrorism in Iraq ''the
wrong war, in the wrong place, at the wrong time.''
John Kerry's public record of giving ''aid and comfort'' to the enemy is so
public, and so indisputable, that I believe it is a fact, commonly known and
not subject to plausible controversion, of which any Federal Court could, or
must, take judicial notice.
The presidency is both a civil office, and as commander in chief a military
office, of the United States.
And that returns us to Article 14, Section 3, of the United States
Constitution, which bars from all civil and military offices of the United
States any person who, having once taken an oath as an officer of the United
States, has given aid and comfort to an enemy of the United States, i.e.,
John Kerry.
John Kerry took an oath as a naval officer, before he became a prominent
anti-war activist. He took another oath to protect and defend the
Constitution when he was sworn in as a senator, before he called America's
war on terrorism in Iraq "the wrong war, in the wrong place, at the wrong
time." Now, he seeks to become president, and commander in chief, and will,
if he is elected, take the oath again, to protect and defend the
Constitution.
But if he fulfills that oath, as he should, if he is elected, and if he is
to defend the Constitution, then his first official act as President must be
to resign from the office of president, because he is barred from the
presidency by Article 14, Section 3, of the Constitution of the United
States, which he will have sworn (again) to protect and defend.
This is John Kerry's Constitutional Conundrum: If he is elected, the
Constitution requires him to resign, or to be removed from office.
The demand for John Kerry's resignation if, and after, he is elected or
inaugurated, will create a political eruption unlike any we have seen in
many years, or generations. It would elevate John Edwards, a man whose
qualifications for the Presidency seem slight, to the White House.
I believe this is an issue that should be grappled with before the election,
not afterward. At the least, it should become central to the public debate
during the next two weeks.
I also believe that some person, or persons, or one or more organizations,
such as the Swiftboat Veterans for Truth, or the Vietnam Veterans Against
John Kerry, should file a lawsuit in Federal Court seeking a determination,
based on public records and documents, that John Kerry has given aid and
comfort to enemies of the United States, and an injunction barring him from
the presidency, pursuant to Article 14, Section 3, of the Constitution of
the United States.
This will not be a criminal proceeding. It is not a prosecution for treason
or sedition. It does not require proof beyond a reasonable doubt; only to a
''preponderance of the evidence,'' evidence that it is more probable than
not that John Kerry has given aid and comfort to the enemies of the United
States. He will not go to jail, he will not risk paying any fines or
damages. There will only be, or, in my opinion, there should be, a judgment
that, having given aid and comfort to the enemies of the United States, he
is barred by Article 14, Section 3, of the Constitution of the United
States, from the presidency.
About the Writer: Raymond Kraft is a lawyer and writer living and working in
Northern California. Raymond receives e-mail at rskraft@vfr.net. |
