Tag: 14th amendment

AGEISM, THE 14th AMENDMENT AND THE BIDEN PROXY CAMPAIGN

by Ken Grossberger, PhD

At the end of the US Civil War there was a problem: approximately five and a half million African Americans were technically still slaves, still the property of their masters. So Congress passed, the president signed, and the state legislatures approved, the 13th, 14th and 15th amendments the constitution. The 13th amendment abolished slavery, the 14th amendment provided the now former slaves with citizenship (among other things) and the 15th amendment gave them the right to vote (except for women). The 14th amendment contained other significant provisions, such as the protection of citizens’ “privileges and immunities”, incorporated due process into the states, and gave “equal protection” to all Americans. This last clause has become the basis of many laws since, such as the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act, which have become the bedrock of defending citizens against discrimination based on so-called protected characteristics, including age. Here is where the political rubber meets the electoral road. The prejudice against President Biden comes to mind.

We reach a point in our lives where we realize we have to walk and chew gum sequentially. This apparently has not yet dawned on the president. Thus the public consternation at his decision to run for reelection. But are the objections to his age or ability? The public perception is that it’s the former, but oh yeah, it might be the latter also. His age as a disqualifier is openly discussed, ad nauseum, as if the constitution doesn’t exist. Ironically, he picked his vice president based on gender and color, another egregious violation of standing law. Any employer would be on the wrong end of a lawsuit based on such flagrant violations of the constitution and subsequent statutes. But in this era of extreme polarization, with the attendant prejudiced partisan press, these discriminatory choices and comments have become mainstream.

The long history of the civil rights movement, and numerous court cases and laws, also include the Fair Pay Act, the Bakke case, the Fair Admissions cases, and many more. Yet we see blatant age discrimination (Biden is too old to be president), gender discrimination (the selection of running mates based on sex) and racial discrimination (the selection of Harris for VP based on color).

So Biden is both a victim and a perpetrator, but as his own worst enemy, he not only continues to feed the negative narrative, his White House staff and campaign staff seem to want to replicate the hidden candidate trick of 2020. Another proxy campaign, where his surrogates, apologists and excuse makers will ignore the bad, tell the country all is well and try desperately to have everyone focus on the evil Donald Trump. Meanwhile Biden will again be on vacation, taking trips or simply back to Delaware again and again.

This will not be something akin to the 19th century back porch campaigns, not in the high speed, instant information space. The President-In-Hiding maneuver may well backfire in this cycle, age discrimination or not, yielding a reductionism of the politically neurotic – it’s always about Trump.

And we are one terrorist act away from a brand-new ballgame.

The Discomfort of Undue Process

Ken Grossberger, PhD

What if George Santos is found not guilty?  What if Donald Trump is?  What if Hunter Biden is? What if Joe Biden gets indicted? The rush to judgment may satisfy emotionally, but due process gets trampled along the way.

Congress may have acted prematurely in the George Santos case. The press, and the people, may have prejudged Trump and anyone named Biden (depending on one’s predilections), in advance of any jury verdict.  This is fine for a discussion at the bar at midnight, terrible for any appreciation of due process. The lesson here is that preemption may be prematurity.  Expelling Santos from Congress and removing Trump from the ballot may be politically palatable to some but is also legally foundationless. The political strategies of ballot denial and power maintenance are also ethically dubious at best. The US Constitution requires due process to protect each individual’s rights, and even though in some venues due process does not apply in fact, it should apply in principle.

The most egregious example is in Maine, where Secretary of State Shenna Bellows unilaterally removed former President Trump from the primary ballot.  Her argument was that Trump was guilty of inciting an insurrection on January 6, thus she was compelled under section 3 of the 14th Amendment to the constitution to rule that Trump could not run for political office.  Access to the ballot, therefore, is left to the constitutional interpretations of hundreds of unelected state administrative officials, a precedent under which democracy, as we know it, would disintegrate.

In Colorado the state supreme court also removed Trump from the ballot under the same logic.  Here we have at least some semblance of jurisprudence, with a court of law involved. However, we also have the legal conundrum as to the intent of section 3 as Congress intended it in 1868.  After the Civil War, Congress was left with the problem of over 5 million people who were still slaves in the south.  Thus the legislature passed the 13th amendment to free them, the 14th amendment to provide them citizenship and the 15th amendment to give former slaves the vote.  The insurrection in question was half the country seceding and fighting a major war of separation from the federal government.  Almost a million Americans lost their lives as hundreds of thousands of soldiers on both sides fought a desperate war in this rebellion.  The superannuated but highly embarrassing January 6 frat party was incredibly wrong and damaging to the American psyche, but hardly an insurrection.  

So, those who graduated from the Google School of Law, and some misguided courts, would have us believe that cherry-picking one’s way through the constitution to find a word or phrase that seemed to justify one’s preconceived conclusion is justified, due process notwithstanding.  Removing Trump from the ballot, ipso fact, is supported by the 14th amendment.

Thus we would be left whims of the perpetually upset never-Trump neurotics, or their counter-parts on the Right, to determine whom they would allow to run for office.  Elections would become free-for-alls with competing jurisdictions summarily removing from the ballot candidates of the opposing parties only to suffer retaliation in turn, and then perhaps no one is left on any ballot.  Court cases would pile up and the entire electoral system would be permanently constipated.

“Democracy is on the ballot,” as we hear so often, and maybe this year it actually is.