Alan Dershowitz: Our Constitution has passed this difficult stress test
Our Constitution was subjected to a difficult stress test this week. For the first time in modern history, violent protesters breached the Capitol and entered the chambers and offices of members of Congress, threatening lives and destroying property. Deaths and injuries occurred.
The primary fault lies with the protesters themselves. However, there was more than enough blame to go around here. The police should have been better prepared for the rioters, who were urged by President Trump to go to the Capitol. It was inevitable that some may break the law, trespass on federal property, and perhaps engage with acts of violence.
But it was a mistake to cast blame on officials who exercised their right to object to an election at rallies and in Congress. The First Amendment and the speech and debate clause of the Constitution are crucial elements of our democracy. Their limits were tested by the remarks Trump made with his supporters and by those of Senator Ted Cruz and others.
While neither the First Amendment nor the speech and debate clause are limited to words and rhetoric with which we concur, they were designed to permit controversial speech, or even dangerous speech, that remains within the constraints of the law. The remarks this week, while disturbing and concerning, were well within those federal constraints.
To hold speakers accountable for violence that ensued would endanger our rights protected by the Constitution. Free speech is not free. Illegal actions, including violence, often follow incendiary words. When French publication Charlie Hebdo deliberately published cartoons that the staff knew would be offensive to Muslims, its editors should have anticipated the possibility of heated reactions. When the violence did in fact occur, some blamed the publication and tried to limit free speech.
The same holds true across history, as union leaders, civil rights activists, and so many others have made remarks they knew or should have known risked violence. I have defended such agitators over the last half century and will continue to do so. Efforts to constrain free speech based on this possibility of violence would do more enduring harm to our fundamental rights than those rioters themselves did with all their chaos.
Thomas Jefferson addressed this on the eve of the 25th anniversary of the Declaration of Independence. He tackled the notion that a minister whose sermon incited some violence should be punished. He argued against that action with prescient words and stated, “We have nothing to fear from the demoralizing reasons of some if others were left free to demonstrate their errors, and especially the law stands ready to punish the first criminal acts produced by false reasoning, as these are safer correctives.”
The framers of our First Amendment understood that free speech is not free. It carries with it significant risk. Those risks came to fruition in the terrible assault on the Capitol. But the Constitution has endured similar assaults, and it will endure this one as well. Some critics have called for the invocation of the 25th Amendment to replace Trump for his last two weeks in office. It was created to replace a president unable to perform duties due to medical incapacity. It was not intended as a substitute for impeachment or to stop a controversial president from finishing a term. This is unrelated, and efforts to use it imperil the rule of law.
The same is true of efforts for the second impeachment of Trump. Nothing that he did, regardless of the merits or demerits, comes within the criteria for impeachment and removal. Some believe that while there is no chance of removing him, he should face impeachment, since Democrats have the votes in the House for impeachment, but not the votes with the Senate for removal. That is an exercise in power rather than in legality.
The Constitution was subjected to a difficult stress test this week. But the Constitution, with its system of checks and balances, passed these stress tests. The debate resumed in Congress, and the resolutions doubting the election failed. Trump even wrote, “There will be an orderly transition on January 20.” Further, several of the rioters will be charged and convicted. No compromises were made, at least not yet, with our basic liberties. So the bad news is that violence occurred on the grounds of our Capitol for several hours. But the great news is that our nation survived.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is author of the recent book “Cancel Culture: The Latest Attack on Free Speech and Due Process” and his podcast “The Dershow” is also now available on Spotify and YouTube. You can find him on Twitter @AlanDersh.
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