Month: December 2023

The 14th Amendment to the U.S. Constituion concerns the traitors to the United States, who during the Civil War organized 11 states as the Confederacy and fought against the American Union and for the perpetuation of slavery.

Their rebelion – their insurrection – began April 12, 1861, when Confederate General Pierre T. Bearegard, who just three months earlier had been superintendent of West Point, ordered a cannonade against Ft. Sumter in Charleston Harbor. It ended April 9, 1865, when rebel General Robert E. Lee surrendered to Union General Ulysses S. Grant at Appomatox Courthouse, Viginia.

Five days later at Ford’s Theater the assassin’s bullet struck Abraham Lincoln. He died the next morning, April 15, 1865, murder taking the man who in his Second Inaugural Address little more than a month before advised a wounded nation to act “…with malice toward none, with charity for all…”

The 13th Amendment, abolishing slavery, had been approved by Congress in February 1865 shortly before his death as it turned out. That owed to the determination of Mr. Lincoln to end slavery as a consequence of the Civil War, and get it done before the war ended. The President wanted no equivocation afterward about the permanent abolition of that wicked institution. It was ratified by the states at the end of 1865.

The 14th Amendment set out the terms for citizenship and limited the return to public duties of certain classes among the rebels. It achieved full ratification in July 1868.

The 15th Amendment guanteed the vote to all citizens – all male citizens at the time – with no restriction “…as to race, color, or previous condition of servitude.” It was adopted finally in 1870. Women, Black and white, would wait another 49 years before their right to vote was enshrined in the Constitution.

As to the war that led to these reconstruction amendments, although some rebellious troops in the West did not surrender for two months after Appomatox until federal soldiers arrived in June at Galveston, the war effectively ended April 9.

The union forces at Galveston proclaimed the 250,000 slaves in Texas free on June 21, a date known ever after as Juneteenth. With that, there were no slaves for once and all in the United States. No one owned another person.

On that date there were 25 states in the Union, including the four border states that never seceded and remained loyal to the union. Eleven other states had rebelled. Gradually they would be readmitted to the Union as others were admitted during and soon after the war.

The Constitution requires to ammend it, two-thirds approval by each house followed by concurrence by three fourths of the states. The 14th Amendment took some time. It passed the House early and easily, 128-to-37 with 19 members not voting. But it lingered for two years in the Senate, finally winning there by 33-to-11. It gained quick ratification from the necessary 28 states among then 37, and became part of the Constitution in July 1868.

Of note is that in Section 2 the 14th Amendment removed the original constitutional definition of a Black person as three-fiths of a person, henceforth every man, women and child would be considered and counted as a whole human being. Ironically, this increased the populations of the former slave states for representation in Congress and the Electoral College, a reverse bonus for losing the war.

Today however there is great turmoil concerning the language of the 14th Amendment, with the entire focus on Section 3.

The 14th Article in Section 3 says:

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.

As of this writing the Supreme Court of Colorado on the petition of dissenting Republicans has found Section 3 prohibits former President Donald J. Trump from appearing on the Colorado Presidential Republican primary ballot in March. The Supreme Court of Michigan has ruled the opposite, holding that he can be a candidate in that state, while the Secretaries of State of Maine and California have ruled in the first instance that he is prohibited and in the second that he cannot be removed from their state ballots.

Other states are considering the question. Maine and Colorado have stayed their determinations pending anticipated appeals.

The Republican Party of Colorado has filed such an appeal with the U.S. Supreme Court asking it to overturn the Colorado decision. It is open to question whether the party has standing to seek the court’s intervention.

There is no doubt however that Trump has such standing. One way or another whether Section 3 prevents his name from appearing on presidential ballots in primaries and looking ahead to the November general election, the question is certain now to be answered by the Supreme Court. With directly contradictory decisions by four states on a constitutional issue and more likely to follow, it must be if only to have an orderly national election.

Then what does Secton 3 mean as to Trump?

First, did he hold an office under oath? Yes, as President of the U.S., but the presidency is not mentioned among the list of specific offices. Perhaps, indeed most likely that is because only one man, President Lincoln, held that office during the Civil War. Certainly he did not trespass his oath, he embodied it, and remained steadfast in his loyal leadership of the United States. There was no prior experience ever of presidential violation of the constitutional oath. Perhaps they chose not to say President because no President had ever done it.

Second, does Trump now seek to hold “…any office, civil or military…” of the United States? Yes, he seeks the civil office of President but while establishing the bar for members of Congress, presidential electors, and state officials, the 14th Amendment as noted is silent specifically as to the presidency itself as one of those offices. Could that mean Section 3 was meant only to deal with the insurrection of the Civil War – that it did not foresee future rebellions of comparable scale or any scale? Is that what Section 3 means with reference to rebellion or insurrection?

Third, if there was an insurrection, did Trump: Take part on Jan. 6, 2021 when he urged thousands of supporters at a post-election event to go to Capitol Hill where they assaulted the Congress? Take part implicitly as the rally became a mob and the mob sought to stop Congress from completing its constitutional duty to certify the 2020 presidential election? Take part by doing nothing for hours to stop the mob while it broke into the building, invaded the building, defaced it, and hunted for Congress members and for the Vice President?

Fourth, was that event “a rebellion or insurrection”? Who decides? A state Secretary of State? Congress? General public understanding? Cable TV pundits? The Department of Justice in cases against insurrectionists, or now against Trump himself? A jury eventually in his case? A state court? A federal appellate court? The United States Supreme Court?

If it is agreed it was an insurrection, if the Supreme Court agrees, and it has not considered the question yet, then what of Trump?

In our system it is the United States Supreme Court that has to say whether Jan. 6 was an insurrection, a rebellion, before it can even decide whether Trump took part in it and further fomented and permitted it.

Did Trump on that day, in the words of Section 3 of the amendement, hold any of the specific offices it names under oath to the U.S. Constitution?

Does he meet the Section 3 test of “… 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…”?

Let’s dispose of the easy part. Trump has never been a member of the House or Senate. He has never been a member of a state legislature. He is not and never has been an executive officer or judicial officer of any state. He has been President of the United States, but that office is not named except by inference.

The next question then is the meaning of “an officer of the United States…”

Trump is a former President of the United States. He took an oath to the Constitution that made him president on Jan. 20, 2017.

Is the President “… an officer of the United States”? Is that what the writers of the amendment meant or did they mean something much narrower? Did they mean, literally, only former U.S. military officers who became insurectionists? Even if they did, are we and more to the point is the high court bound by that meaning?

Let’s look at the United States Miltary Academy at West Point for some insight. Between the graduation of its first class in 1802 and the start of the Civil War in April 1861, the Academy graduated about 2,050 men – all white men of course.

At the start of the war there were about 1,120 living graduates of the academy. Among them 800 fought for the Union while some 300 rebelled and fought for the confderate states with various officer ranks.

Among those who fought for the Union and became a general – with the years of their academy graduations noted in parenthesis - were Grant (1843), William T. Sherman, (1840), Phillip Sheridan (1854), George A. Custer (1861/the last stand), Ambrose Burnside (1847), George Meade (1835), George McClellan (1846), and Abner Doubleday. Yes, before he supposedly invented baseball Doubleday was a West Point graduate in 1842, and later a union officer.

They were among the estimated 290 West Pointers who became Union generals. Many thousands of others from the academy and from other experiences and stations in life also became Army officers.

In the South were Lee (1829), Thomas “Stonewall” Jackson (1846), George E. Pickett of Pickett’s charge fame at Gettysburg (1846), James Ewell Brown Stuart – “Jeb” Stuart (1854), and James Longstreet (1842) to name but a few of the prominent among 150 West Point graduates who became confederate generals.

Jefferson Davis, president of the Confederacy and before the war a U.S. Senator from Mississippi, graduated West Point in 1828. Its vice president was former U.S. Sen. Alexander Stephens of Georgia, who later as a restored citizen again served Georgia in the Senate. Both were disbarred by Section 3 as former members of the United States Congress, who had been faithless to their oaths to the U.S. Constitution.

As noted, Section 3 of Article 14 does not name the offices of President and Vice President. These two offices and titles are not mentioned at all in Section 3.

So when its drafters wrote “… officer of the United States” but did not modify that with the word civil, did they mean that to include the President and Vice President, to mean generally all officials of the federal government? If they did, why did they not use the word official as well as, or in lieu of the word officer? Why did they not on the second reference specify “civil and military” officers?

Or – having just experienced a war in which historical estimates say 620,000 Black and white soldiers died on both sides; a war in which hundreds of men served as generals or lesser officers; a war whose news was relentless,ubiquitous and inescapable every day in all the newspapers and simple ordinary conversation; a war marked especially by the choices made by West Point officers, to stay North or go South – did they literally mean military officers and only military officers?

I am inclined to believe they intended that limitation given the exigent experience the nation had just come through when thousands of military officers were in view all the time not only in the papers but on parade, on trains, in the streets, in the shops, hotels, restaurants, in all public places and often right at home or just next door.

We cannot know intention and certainly not for all time know it to be unchanging, unwavering. No, we truly cannot say at all what the high court majority says with certainty, that the men who drafted the Bill of Rights in 1789 actually somehow knew 200 years later there would be assault weapons they intended the 2nd Amendement to protect; weapons that kill scores of people in less time than it took then to kill one person with a musket or pistol.

To say that was their intention is not only preposterous, it is stupid. How could they apply a rule to something they never even imagined? Such a contention insults intelligence and renders history pointless. But explain that to the miserables on this Supreme Court who believe they can read the minds of the dead.

How then will the justices understand the word “officer”. Will they give it meaning broad enough to say surely it includes the chief executive officer of the United States – the President.

Or will they say that in their time, in the context of the costliest war in the history of the United States before or since, the drafters of Section 3 literally meant military officers and that their intention is not to be further inferred or sensbily expanded?

As a matter of law and Constitutional understanding the court could take the more expansive view that a President is indeed an officer of the nation; that he can be excluded from the presidential ballot if he foments or participates in an insurrection. Of course this would mean the high court finds the events of Jan. 6,2021 were an insurrection against the United States and says so.
We think they will. We think they should. But we don’t know yet.

Would it be best if the court spoke unanimously as it did in Brown v. Board of Education? Yes. Will it? Not likely.

It is more likely the court majority will put on its hoods and rule for Trump on any basis it can concoct from the language of Section 3, based on the justices divining the intentions of its drafters when there is no one among those who wrote them they can ask because – because they are all long dead.

Once again Alito and Thomas with their allies on the court will hold a conservative’s seance, commune with the dead and tell us what they meant for all time when they wrote Section 3.

The petard is hoisted now for the court.It must sit on it regardless. It is going to hurt.

There is a long, thoughtful review and intellectual reprise of the film “Zone of Interest” posted on today’s New York Times (Dec. 19, 2023).

Written by Giles Harvey about the film conceived and directed by Jonathan Glazer, it should be read, the film should be seen and will be by me soon enough.

It is as you know another albeit different film about the Holocaust. It does not show any of the things that happened or any of the people, real or imagined to whom it happened.

It shows the domestic life,, reasonable tranquility, and settled marriage of Rudolph Hoss, twice commandant of Auschwitz. It is a view of the plain satisfying life of this work-a-day German burgher and his wife and five children as they lived in the commandant’s house literally outside the wall of the camp.

Inside, almost everyone dies. Outside they don’t. The film does not show the camp inside, you what that is. It is a factory where they make dead people and dispose of their bodies, where the means of production is murder and in which the product is death. This is a movie about the factory manager.

Part of this was/is from my comment to The Times (adapted for more exact references). It is a bad habit, responding to Times stories with comments (reporters call everything in the newspaper a story, they write and read stories, not articles), but I persist. It may be a bad habit but it occupies the mind.

This response purposefully refrains from any reference to current events and their troubling circumstances – tempting, so tempting as that is. It is there nonetheless.

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I have read extensively, too much perhaps a friend once said, about these events, their history, and the totality of what at best we can call their politics in Germany and internationally before, during and immediately after the cataclysm.

I think always about this sentence from the charge to the International Tribunal by Justice Robert Jackson, who took leave from the U.S. Supreme Court at the behest of President Truman to serve as chief prosector at the tribunal in Nuremberg at the end of 1945.

In that remarkable, detailed document Justice Jackson told the court in clearest terms, “The real complaining party at your bar is civilization.”

Ever since we have continued civilization’s complaint. Harvey’s essay is a good one, another reminder of what happened, including of that aftermath at Nuremberg and it is a good one about a very important film.

Yet of itself, Harvey’s writing gets to no better explanation. It contains no more, no new revealed truth about the factories where the Germans and their friends all over Europe, but principally their Eastern European friends, made death.

In the certainty of praise, it does not explain the inescapable fact that this happened; that nothing – nothing explains it though we keep trying to understand it as this film does, as Justice Jackson so plainly set out in the jury’s charge.

That we cannot is the reason we keep writing about it, referring to it, making and watching films about it, building museums to remember it that exhibit its remnants, depict its deadly advance through Europe, preserve and retain its artifacts.

Still, the most important, cogent, revealing film I have ever seen about this is “Wansee”, the version directed by Kenneth Branaugh. (There is a later German version for television in German, which I do not speak.) Perhaps it its way “Zone of Interest” equals it. Perhaps.

The Branaugh film is about a business meeting, albeit in a lavish setting, a very real one.

It is a representation of the event but it is not fiction.

The film was peformed mostly in the very same Wansee Villa in Wansee, an exclusive, wealthy enclave in Berlin where it took place efficiently during two hours on Jan. 20, 1942. Eerie isn’t it? You don’t have to imagine the actual setting. It is shown to you.

The meeting involved the same 15 people it identifies and depicts the woman who recorded the details in what came to be known as the Wansee Protocol. Each participant received a copy. Only one was found in German files after the war. It was enough to reveal all.

All 15 of those in attendance were government or Nazi Party officials of the
Third Reich and its colonies (Poland under the Reich was not a country but a German colony divided into a section incorporated into Germany, while Germans ruled a large rump portion in an enslaved so-called “General Government.” The six death camps, Treblinka, Sobibor, Chelmno, Maydanak, Belzec and Auschwitz were inside the territory of the General Government. The choice made sense, was busines- like after all – given that 2.9 million million of the 6 million were Polish Jews.)

The film is based on the lone surviving summary. To a significant extent what is said is what they discussed that day.

No one dies. No victim is shown. Mention is made of already accomplished mass shootings. A break is taken for refreshments. – brandy, delicacies and cigars, which were indeed served at the session.

It is an ordinary meeting of the board you might say, among the participants were eight Ph.Ds and several who held law degrees from venerable German Universities. Among them were Adolph Eichman, we all know who he was, his boss who had convened the session, Reynhard Heydrich, second in the SS to Heinrich Himmler, and Herman Muller, the chief of the Gestapo who also worked for Heydrich.

There is a hierarchy to the Holocaust. It was Hitler, Himmler, and Heydrich.
The first one ordered it. The second one commanded it and the third, Heydrich, was its architect . Also the Reich Protector of Bohemia and Moravia (the Czech Republic today), Heydrich died in May 1942, assasinated by Czech partisans. Slovakia under the Fascist Priest Father Tiso, had broken away from the Czechs and was a rump German puppet (the facts get in the way of the narrative but they matter).

As they did that day, the “Wansee”attendees discuss, plan, define, and move ahead with genocide – it is their routine business. It is why they have convened – to be apprised of the next phase of that business, its expansion, and its new means of production, and to learn what will be done by and expected of their departments, agencies, and party offices.

Eventually, the execution of the industrial plan will be handed off to plant managers like Hoss. No one dies in the film. But you know millions of people already have and millions more will. The film tells you about the new means of achieving product.

No film, no writing ever gets to the whole of it, the center of it, the deep interior of it, the why, why, why of it. Because it cannot be done. Because unreasonable, unyielding hate does not have a findable center. It is a vortex spinning endlessly into eternity.

Even still, we continue to look for it, for the bottom of the vortex. We should and the creative among us, like Glazer, should never stop searching even though they will never get to it. It spins endlessly.

It cannot be gotten to but, as they say, never forget. Never forget.

We could though learn from it, we should learn from it, especially just now.

That is another why. Why don’t we?