Mahmoud Khalil, a Columbia University graduate student, is an activist who participated in last year’s pro-Palestinian campus protests. He was arrested by U.S. immigration agents on March 8 as part of the Trump administration’s pledge to deport anti-Israel student activists. Khalil is of Palestinian descent; he grew up in Syria, and is a permanent resident of the United States. He is married to an American.
His arrest was hailed by some sectors of the American Jewish community, including the Anti-Defamation League, an organization that fights antisemitism. The ADL released a statement applauding the “swift and severe consequences for those who provide material support to foreign terrorists”–this, despite the fact that there is no evidence whatsoever that Khalil provided such support.
Other Jews understand what the ADL does not– that “defending” Jews and other minorities requires support for an open society where individuals are free to voice any and all opinions, even those we may find offensive. Jews are far less safe when those in authority are free to punish people who express ideas with which they disagree. And that is clearly what this Trumpian assault on the First Amendment is all about.
The Trump administration has provided no evidence supporting a link between Khalil and Hamas — which is a U.S.-designated a foreign terrorist group — or documentation of Khalil advocating violence. Khalil has not been charged with any crime. Trump and his administration are nevertheless openly bragging that the activist was being forcibly deported and separated from his pregnant wife because of his pro-Palestinian advocacy, and that more arrests will follow.
As I’ve previously noted, the sudden concern over anti-Semitism being expressed by far-Right politicians is jarring to anyone with even a cursory knowledge of the GOP fringe’s historic hatred. When Christian Nationalists suddenly express a desire to “protect” their Jewish neighbors, it’s not just disconcerting–it’s ominous. MAGA’s sudden, pious concerns over anti-Semitism are anything but good-faith. Large numbers of the prominent Republicans who have labeled campus protests “Leftist anti-Semitism” have, like Trump, mainstreamed anti-Jewish rhetoric for years.
And by the way– those pious folks claiming to “protect” us are evidently unable to distinguish between opposition to Israeli policy and anti-Semitism. Plenty of Jews–including the one who writes this blog–oppose Netanyahu and his horrific actions in Gaza. We also oppose the arrest of Mahmoud Khalil.
As an in-depth article in The Guardian documented, “Campus protest crackdowns claim to be about anti-Semitism – but they’re part of a rightwing plan.” The article acknowledged the legitimate discomfort of Jewish students on campus, but noted that it has been used to justify “a powerful attack on academic freedom and First Amendment rights that long predates the student encampments – part of a longstanding rightwing project to curb speech and reshape the public sphere.”
The arrest is a flagrant and unprecedented attack on the First Amendment. Trump’s version of the federal government is claiming the authority to deport people–to revoke their green cards– for the “crime” of advocating positions that the government opposes, actions that are very obviously intended to intimidate and chill speech on one side of a public debate.
Amy Pitalnick of the Jewish Council for Public Affairs–who identifies as a Zionist–understands why the ADL is on the wrong side of this debate. The New York Times quoted her as saying “Any Jew who thinks this is going to start and stop with a few Palestinian activists is fooling themselves, Our community should not be used as an excuse to upend democracy and the rule of law.”
This is not the first time the ADL has failed to understand that Jews ultimately depend for our safety and well-being on the protection of an open society that honors and respects the civil liberties of all its citizens.
There’s a great adage I once heard from Ira Glasser, who led the national ACLU for many years. It is particularly pertinent here: Poison gas is a great weapon–until the wind shifts.
The government that can shut down Mr. Khalil today can shut down the ADL tomorrow–and given the documented anti-Semitic background of Trump and his base, it wouldn’t take much of a wind shift.
Important notice: Due to the cold, the rally on January 20th has been moved to Broadway United Methodist Church, 609 E 29th St, Indianapolis. Indoors.
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.Several weeks ago, the Indianapolis Capitol Chronicle ran an article in which the author mused about civics instruction. She had come across the 1930 edition of a civics textbook, and noted that its focus on community responsibilities seemed very different from today’s preoccupation with individualism.
The book starts with this preface (and yes, I took photos while at the table): “It is generally agreed today that the main reason for the existence of schools is to help our pupils to become good citizens. Our schools teach the three R’s because everybody needs those tools in order to act intelligently in his relations with his fellow man. It is no less important for the pupil to learn that his life must be lived in close association with his fellow men, and to profit by the experience of human beings in regard to these relations.”
In those few introductory words lies the conundrum that faces all societies: how do we protect the political, religious and philosophical autonomy of the individual while building safe, orderly and supportive communities?
Several years ago, I made a speech in which I considered that question. As I said then, there is an African proverb to the effect that it takes a village to raise a child. Implicit in that saying is the question at the heart of political philosophy: What should that village look like? What is the common good, and what is the nature of social obligation? What sort of social and political arrangements are most likely to promote and enable what Aristotle called “human flourishing”? And perhaps, more importantly, do we live in an era when such questions have largely been abandoned?
That simple introductory paragraph from a long-ago textbook reminds us that our public schools have two vitally important tasks: first, giving children the intellectual tools and skills they will need, not just to negotiate the economic world they will inhabit, but also to lead richer, more fulfilled and considered lives; and second, equipping them for the responsibilities of citizenship.
Over the past few decades, there has been a very unfortunate narrowing of emphasis to just one portion of that first responsibility. Critics of public education have focused almost entirely on the subjects needed to produce a workforce–on giving students the skills they’ll need to compete economically. The sorts of instruction that will help them flourish, that will give them the insights and understandings that will help them create rich and enjoyable lives–music and art and literature–have been relegated to the sidelines or eliminated entirely, dismissed as “frills.”
Worse, the various educational “reforms” that have been pursued have ignored the second important purpose of public education–preparing students for thoughtful and engaged citizenship in a complicated and increasingly diverse society.
Not only have our public schools neglected the proper teaching of American history and government, the vouchers that facilitate evasion of the First Amendment have sent thousands of children to religious schools, most of which ignore civics instruction and deepen tribal commitments rather than helping students understand the complexity–and necessity– of seeking the common good and wrestling with the imperatives of our national motto: e pluribus unum.
Too many of our legislators, here in Indiana and elsewhere, confuse education with job training. They are most definitely not the same thing. We are impoverishing generations of students by depriving them of sustained contact with the liberal arts and with the enduring questions that separate thinking humans from automatons. By neglecting instruction in government and citizenship, we have contributed to the widespread ignorance that continues to elevate so many unfit and unstable individuals to positions of power. It isn’t just Trump–there are plenty of other examples at all levels of government, certainly in Indiana.
Finding the “golden mean” between too much emphasis on individualism and too much emphasis on community and conformity has never been simple. That search for a proper balance between individual rights and the imperatives of the common good is fatally compromised when a significant portion of the population remains uneducated because those responsible for education policy don’t know (or care about) the difference between educating students and training them.
When the body politic lacks a common understanding of their society’s foundational principles, culture warriors and plutocrats are enabled, and tribalism threatens to bring down the entire edifice of legitimate government. That is arguably where we find ourselves right now, and the sustained assault on American education–an assault that has hollowed out the very concept of education– is at the very heart of our impending Trumpian disasters.
Americans have long demonstrated a distrust of bureaucracy–generally seeing the growth of that managerial cohort as exclusively governmental, although it is typical of any large corporation or organization. More recently, MAGA Republicans have deepened the hostility to government workers by accusing civil servants of being a malevolent “deep state.”
That “deep state” of MAGA imagining is a cabal of anti-American “woke-ism,” dedicated to helping “those people” and restricting the God-given rights of the good White Christian men who are the only “real Americans.” Any government officials with the temerity to block one of Trump’s fever dreams is clearly a member of that “deep state.”
The public is gradually becoming aware of Project 2025, the detailed, thousand-page “transition plan” produced by a consortium of far-Right think tanks led by the Heritage Foundation. These culture warriors have (accurately) determined that their Presidential candidate– profoundly ignorant of government and rapidly losing touch with reality–would, if re-elected, be even more incapable of ushering in their desired changes than he was during his first term, so they have come together to provide a road-map.
That road map is filled with horrifying policy positions, a large number of which are (currently) unconstitutional. One of them, as described in the linked report from Talking Points Memo, takes aim at that hated “deep state.” (When I read it, it triggered a vision of Joseph McCarthy waving a paper and claiming he had the names of multiple Commies working for the government…)
The Heritage Foundation is funding the creation of a blacklist of federal government workers who MAGA loyalists claim might obstruct the Trump II agenda, the Associated Press reported Monday.
The work of compiling the list of names of some 100 government employees is being done by a Kentucky fellow named Tom Jones and his American Accountability Foundation. The work is being financed with the help of a $100,000 “Heritage Innovation Prize” from the Heritage Foundation, long a bastion of Reagan conservatism in DC but now fully in MAGA mode. Heritage announced the prize winner back in May, referring to “the presence of anti-American bad actors burrowed into the administrative state.”
In announcing the prize, Heritage Foundation President Kevin Roberts touted it as effort to expose the “Deep State”:
“The weaponization of the federal government under President Joe Biden is only possible because of the deep state of entrenched Leftist bureaucrats in the White House and its agencies. I am proud to support the outstanding work of AAF in their fight to hold our government accountable and drain it of bad actors determined to undermine our constitutional republic and weaponize government against the American people, our economy, and our institutions.”
Notably, the plan is to publish the list online. A doxxing in the public square as it were, with all the obvious historical echoes, as the AP rightly notes:
The public list-making conjures for some the era of Joseph McCarthy, the senator who conducted grueling hearings into suspected communist sympathizers during the Cold War. The hearings were orchestrated by a top staffer, Roy Cohn, who became a confidant of a younger Trump.
As for the criteria used to determine who makes the list and how those criteria are applied, the AP provides this chilling methodology: “They’re relying in part on tips from his network of conservative contacts, including workers.”
Civil service protections are only one of the many, many elements of American government that would be jettisoned by Project 2025. If even a small number of the desired changes were to become law, America would be a profoundly different place–and far less hospitable to women, non-fundamentalist Christians and minorities.
“Project 2025 is more than an idea, it’s a dystopian plot that’s already in motion to dismantle our democratic institutions, abolish checks and balances, chip away at church-state separation, and impose a far-right agenda that infringes on basic liberties and violates public will.
Project 2025 advocates placing all government workers– including employees of independent agencies like the Department of Justice– under direct presidential control, allowing the president to “efficiently” implement policies in a number of areas. Civil service employees would be replaced by “loyal” political appointees.
In other words, Separation of Powers would be replaced with a “streamlined” dictatorship.
So much for those silly Founders, and their devotion to “checks and balances”…Meanwhile, people upset with Biden’s debate performance want to replace him, a mere ten weeks before early voting starts. They are mimicking Nero, who–you will recall– fiddled while Rome burned.
Here is the talk I will be delivering to the Danville Unitarians this morning. It’s longer than my usual posts, so–unless you feel the urge to visit or revisit the 14th Amendment– feel free to skip it!
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Thanks to our current political environment—and especially to an argument that Section 3 of that Amendment requires barring Donald Trump from the ballot—we’ve seen an explosion in references to the 14th Amendment to the U.S. Constitution. But the 14th Amendment has been incredibly important for a long time, for reasons having nothing to do with Section 3. Together with the 13th and 15th Amendments, the 14th is credited with strengthening and “reframing” the Constitution and Bill of Rights. Together, they are frequently referred to as our Second Founding.
It’s presumably due to that current interest that I was asked to talk about the 14th Amendment today, so you will get the equivalent of my class lecture on the subject. I apologize in advance…
The 13th Amendment, as you undoubtedly know, outlawed slavery, and the 15th forbid abridging a citizen’s right to vote “on account of race, color, or previous condition of servitude.” Together with the 14th, they are the Reconstruction Amendments.
Of the three, the 14th Amendment is the lengthiest and most ambitious. Thanks mainly to the Equal Protection clause, it is now considered to be a part of the Bill of Rights.
The first Section is the one with which most of us are familiar; It reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
The Congressman who drafted the 14th Amendment, John Bingham, was very clear that his intention was to make the Bill of Rights binding on the states. Most Americans don’t realize that, prior to passage of the 14th Amendment, the Bill of Rights limited only the federal government. Bingham insisted that his language—“privileges and immunities” encompassed the entire Bill of Rights, and made them binding upon the states, and the contemporaneous arguments for and against passage tended to focus on that stated outcome.
Nevertheless, after the 14th Amendment was passed, it took the Supreme Court a number of years and a collection of discrete cases to apply most of the constraints of the Bill of Rights against state and local government actors, a process called (for some reason) incorporation.
Prior to passage of the 14th Amendment, state and local officials could “establish” religions, prevent you from exercising your right to speak freely, engage in blatantly discriminatory behaviors and other activities that violated the first 8 Amendments of the Bill of Rights.
An important clause in Section One established birthright citizenship—which has recently become something of a flashpoint for the considerable number of racists and self-defined “patriots” who want to close America’s borders and prevent the children of immigrants from becoming American citizens. Since most, if not all of the people arguing against birthright citizenship are not descended from Native Americans, the hypocrisy is rather noticeable.
The Second Section of the Amendment is historically interesting, but generally obsolete—it forbids denying the right to vote to any “of the male inhabitants” of a state who have reached the age of 21 and are citizens. Since passage of that language, we’ve extended the vote to women and lowered the voting age to 18.
The Third Section of the 14th Amendment is the one that has recently become relevant to the current election cycle. It reads:
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.
The Supreme Court of the State of Colorado concluded that the language of Section 3 precludes Donald Trump from appearing on Colorado’s ballot. That decision is on appeal to the U.S. Supreme Court, which will now have to decide to affirm or reject Colorado’s analysis–whether Section 3 bars Donald Trump from appearing on all the nation’s presidential ballots. It certainly seems straightforward; in order to evade the clear language of Section 3, the Court would have to find that the President wasn’t an “officer” of the United States, or that the provision isn’t what lawyers call “self-executing”—that is, that it requires Congress to pass a bill to make it operative. Neither argument passes the smell test. The Court could also find that Trump didn’t engage in insurrection, a finding which would be equally unpersuasive. Given the Justices’ performances at the oral argument on this case, I think we can safely assume that they will find a way to duck the clear implications of the Constitutional language.
Finally, Sections 4 and 5 confirm the validity of the national debt and authorize Congress to enforce the provisions of the 14th Amendment by “appropriate legislation.”
The most important operation of the 14th Amendment—at least in my opinion—is that it constitutionalized the Declaration of Independence’s promise of freedom and equality. Scholars refer to the Reconstruction Amendments as America’s “Second Founding,” because passage of the 13th, 14th and 15th Amendments transformed the nation’s charter from what was really an aggressively pro-slavery document into one that prohibited chattel slavery; it changed it from a document that was silent on the Declaration’s call for equality to one that granted equal citizenship to everyone born on American soil; and it changed the Constitution from a charter that stood aside while state governments abused individual rights to one that protected these rights against state government abuses.
A constitutional insistence on “equal protection of the law” effected a fundamental change in American politics and society. As historian Eric Foner has explained, no state gave Black people full legal equality before the Reconstruction era and the 14th amendment. Supreme Court decisions over the last century – outlawing racial segregation, decreeing “one person, one vote”, and many others – have rested on the 14th amendment. Foner and many other historians think the 14th Amendment should be seen as a form of “regime change” — an attempt to change the United States from a pro-slavery regime, which is what we had before the Civil War, to one based on equality, regardless of race. That’s a pretty fundamental change. Historian Heather Cox Richardson has written that the 14th Amendment established the power of the federal government to defend civil rights, voting, and government finances from a minority that had entrenched itself in power in the states and from that power base tried to impose its ideology on the nation.
The Fourteenth Amendment prevents government from denying citizens the “equal protection of the laws.” What constitutes “Equal Protection” can be complicated, because governments need to classify citizens for all kinds of perfectly acceptable reasons. For example, the law draws distinctions between children and adults, between motorists and pedestrians, and between smokers and non-smokers, and those classifications don’t run afoul of the 14th Amendment.
The Equal Protection doctrine is intended to prevent government from imposing inappropriate classifications; those based on criteria that are irrelevant to the subject of the law, or that unfairly burden a particular group. The general rule is that a government classification must be rationally related to a legitimate government interest. A requirement that motorists observe a speed limit is clearly a classification related to government’s legitimate interest in public safety. A law that imposed different speed limits on African-American and Caucasian drivers just as clearly would be illegitimate.
Complicating it further, although laws can be discriminatory on their face (for example, a law saying only white males can vote); these days, laws meant to discriminate are usually crafted to achieve that result by design. That is, they are drawn to look impartial on their face, but to have a discriminatory effect. A rule that all firefighters must weigh over 180 pounds would prevent many more women from being firefighters than men, despite the fact that weight is not an indicator of the ability to handle a fire hose or climb a ladder.
There are also situations in which genuinely neutral laws are applied in a discriminatory fashion. The phrase “Driving While Black” grew out of statistics showing that some police officers were disproportionately stopping black motorists for speeding.
The courts will look more closely at classifications that burden constitutional rights, or disadvantage members of groups that have historically been subject to discrimination. Lawyers call that process of taking a closer look “heightened” or “strict” scrutiny.
The Equal Protection doctrine is intended to prevent government from disadvantaging individuals and minorities of whom majorities may disapprove. Equal Protection guarantees—like all the other provisions in the Bill of Rights— apply only to government actions. Civil Rights statutes address private-sector discrimination. Here in Indiana, for example, our civil rights statutes don’t forbid discrimination on the basis of sexual orientation or gender identity, so unless you live in a city or town with a civil rights ordinance, private companies in your town can fire people for being gay, and restaurants can refuse to sell pizza to someone perceived to be gay.
Essentially, the Equal Protection Clause requires government to treat citizens as individuals, not as members of a group. American laws are supposed to be based upon a person’s civic behavior, not her gender, race or other identity. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are entitled to full civic equality. That guarantee of equal civic rights has unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. As we are seeing, it has also motivated a considerable backlash from people who see equality for “those people” as an attack on their “rightful” social privilege.
Critics of Equal Protection often argue that equality and liberty are at odds: that an individual’s liberty includes the right to dislike or disapprove of others and that true liberty would include the right to act on those negative opinions. What the 14th Amendment says, in essence, is: fine. Dislike Black people, or Jews or Gays. Don’t invite them to dinner. Tell your daughter not to date them. But you may not ask government to pass rules that discriminate against them or that prevent them from participating as equals in the political system or civil society.
With that, I will conclude this admittedly very superficial description of the 14th Amendment. I’m happy to answer questions!
In the wake of the Court’s ruling in Dobbs, several pundits have approved of the decision as a “return to federalism.” Earlier this year, I posted about America’s experience with federalism, and obviously, that analysis bears repeating.
The issue, of course, is “Which rules should be nationally-imposed, and which should be left to more local “laboratories of democracy”? Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. But questions about who is entitled to fundamental human rights–and what those rights are–clearly isn’t one of them.
Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the extreme federalism of the Articles of Confederation; those problems were severe enough to prompt the replacement of the Articles with our current Constitution. In the (many) years since, however, we seem to have forgotten about the very negative consequences of national fragmentation.
The application of the Bill of Rights to state and local governments was meant to establish a national floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.
Furthermore, modern technology and communication–and the needs of businesses serving a mobile population–have made uniformity imperative even for matters that were properly left to state and local governments in the 1800s.
As I’ve noted previously, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission. The Commission drafts and promotes state enactment of uniform laws in areas of state law where uniformity has been recognized to be both desirable and practical. Probably the best-known uniform law is the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. (It has national application, but it isn’t a federal law–it was uniformly adopted by each state’s legislature. In that sense, it respected federalism.)
Obviously, commerce isn’t the only area where uniformity is “desirable and practical.” Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks. Numerous health officials have addressed the disastrous results of Trump’s decision to leave COVID response to the states. It is not hyperbole to suggest that a more co-ordinated, federalized response wouldn’t just have saved lives, but in all likelihood would have cut short the period of most vulnerability.
No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?”
What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms? It is incomprehensible to me that anyone would choose to leave basic civil liberties up to the states–that, after all, was precisely the “federalism” that led to the civil war.
Certainly, America’s division of jurisdiction among local, state and federal levels of government is still useful–state and federal governments really have no reason to assume responsibility for handing out zoning permits or policing domestic violence disputes, for example– but we need to recognize that many of our historic assignments of responsibility no longer make much sense. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, as we have seen, it’s an invitation to misconduct.
As a practical matter, federal programs have made a mockery of the increasingly awkward pretenses of state “sovereignty” where none really exists. Think of federal highway dollars that are conditioned on state compliance with federally mandated speed limits. Or the myriad other “strings” attached to federal funding that remind state-level agencies who’s really in charge.
If we ever get serious about actually governing again, we should take a hard look at these divisions of responsibility, and recognize that some matters are genuinely local, some require national action, and still others are planetary and must be addressed globally. Climate change is the most obvious.
I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights and global threats, a phony and facile “respect for federalism” is both dishonest and suicidal.
