OPINION:
It has not been a good month for the Constitution.
A couple of weeks ago, the House decided to take a solid stand against freedom of speech and require the Department of Education to adopt the definition of antisemitism used by the International Holocaust Remembrance Alliance. Maybe I’m wrong, but the alliance doesn’t really sound like an operation concerned about the First Amendment.
But for reasons mostly political, House leaders decided that the middle of a war between Israel and Hamas — in which the American government is funding both sides — would be an optimal moment to create a definition for antisemitism to be used by the federal government. Perhaps I missed it, but I didn’t realize there was a public outcry for federal speech codes.
Leaving aside the question of timing, it seems prudent to ask whether we really want members of Congress — who are mostly bland, pleasant and ambitious but who do not seem to have any particular wisdom — to determine what the rest of us should be allowed to say.
The legislation itself is about as terrible as you would imagine. It would make it illegal to raise questions about the provenance and the validity of Israel. It would also make it illegal to point out that Jewish people at the time of Christ were complicit in his execution. It’s not clear if anyone could pray for the conversion of Jews. I could go on, but you get the point.
There are two problems with all of this. First, free speech is essential if you are interested in preserving societal harmony. When there is a divergence between what people believe and what they are allowed to say, unrest and, in the extreme, violence are certain results. Over time, the alternative to free speech is not silence. It’s violence.
The second problem is that the members of Congress all took oaths to uphold the Constitution, which includes the troublesome phrase “Congress shall make no law … abridging the freedom of speech.” That seems pretty clear, but maybe there is an exception for antisemitism, or pro-semitism, or indifference to semitism altogether.
Not done with the legislative arson, multiple members of Congress considered whether it would be wise to take action against Rep. Henry Cuellar in the wake of his indictment. This follows the expulsion of George Santos for no specific reason other than that he is kind of creepy and the indictments he received.
It’s understandable. Who really wants a bunch of jailbirds wrecking the cool kids club of the House? Still, there is that tricky assumption of innocence until one is proven guilty in a court of law that is, for good or ill, caught up in the Fifth Amendment’s due process protections. Again, you’d figured that those who had taken one or more oaths to uphold the Constitution might be sensitive to such a foundational part of the rule of law. You would be wrong.
Even failing that, though, you might assume that members of Congress would be able to figure out — without having to be told — that if they start ejecting members who have been indicted, eventually, the folks with guns and badges are going to start indicting members of Congress to whom they do not cotton. It’s a slippery slope, which is why it is to be avoided.
The oath taken by U.S. government officials includes the idea that the person taking the oath will protect and defend the Constitution “against all enemies foreign and domestic.” What happens if you become one of those enemies?
• Michael McKenna is a contributing editor at The Washington Times. He has taken an oath to defend the Constitution three times.
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