Ban Trump with Jewish law?
A Jewish answer to the 14th Amendment
“You can’t have nine unelected judges in robes deciding the presidential election!”
“The Constitution was designed to stop someone like Trump, and the judges should have acted on that!”
Such are the opposing assessments from my friends recently, as the United States Supreme Court considered whether Colorado could bar Donald Trump from the ballot under the 14th Amendment.
But there might be a third choice between the judges and the voters: appealing to an idea from Jewish law.
The 14th Amendment, ratified in 1868, includes a clause preventing anyone from taking office who has “engaged in insurrection or rebellion against [the Constitution], or given aid or comfort to the enemies thereof.” Colorado state judges determined that Trump’s actions during the January 6, 2021, attack on the United States Capitol fit the description of involvement in an insurrection, and thus tossed him from the ballot. Last week the Supreme Court unanimously ruled that states do not have the power to bar Trump from the ballot. While they didn’t draw any conclusions about whether Trump engaged in insurrection, the Court suggested that Congress needs to pass legislation laying out how enforcement of the 14th Amendment in this area should work.
I agree that we don’t want the Supreme Court deciding elections best left to the voters. I also agree that the framers had exactly someone like Trump in mind when they designed our system of government. Trump’s actions, declarations, and stated intentions represent an exceptional threat to our democracy on a level we’ve never seen before.
Thus I turn to Jewish tradition.
Jewish law, called halacha, offers exacting behaviors to regulate every aspect of life. You probably know some of the big ones: Jews are forbidden from eating pork, forbidden from working on Shabbat (such as using electricity and driving a car), and forbidden to steal, murder, and look at a moose out the window of an airplane (just kidding. That last one is on the books in Alaska, but of course applies to Jews there as well).
But halacha also has an escape clause for extraordinary circumstances. Pikuach nefesh, which means “saving a soul,” requires the breaking of Jewish law in order to save a human life. On Shabbat, ambulances must drive, police must use their walkie-talkies, and the ultra-Orthodox must use their cell phones to call 911.
Pikuach nefesh (peh-ku-ah neh-fesh) is a narrow exception that is simultaneously broad. It can only be applied in the circumstance of saving a life, yet there is wide latitude over what can be defined as “saving”. An Israeli hospital will treat you on Shabbat even if your life is not in imminent danger. During World War One, the Zion Mule Corps, a British detachment of Jewish soldiers from Palestine, refused to unload bacon from a cargo ship. Their rabbi gave them permission to do so. Even though their lives weren’t in danger, other soldiers would be without the food (he also gave them advance permission to consume bacon if they found themselves on the front line without kosher food). Pikuach nefesh recognizes that the strict observance of the law cannot come at the price of not being able to observe the law. After all, you can’t keep Shabbat if you’re dead.
Our democracy needs a pikuach nefesh clause.
The preservation of democracy is so essential to our society that it cannot be placed at the risk of destruction, even if the cost is an extraordinary measure to save it that seems to fly in the face of democratic rule. The trick is to precisely design such a clause to effect the outcome we want (preserving democracy against a dire threat) while avoiding the abuse it could engender (as a partisan weapon).
A place to start is the recognition that the offenses Trump has inflicted on our democratic polity are beyond what we should tolerate. Lawyers can quibble about whether his actions on January 6 amount to the technical definition of “insurrection” under the 14th Amendment. But let’s be honest: Trump, his friends, and his foes alike all understood exactly that his intentions were to overthrow the democratic process to install himself as president, peace be damned. A reasonable judge (or slate of judges) can draw the conclusion that such actions should bar someone from office.
Nor should his repeated and insistent pretensions towards dictatorship be dismissed as simply the usual Trump-bluster. Have we not yet learned to believe would-be autocrats when they declare themselves? Again, a reasonable conclusion is that he’s serious.
If the 14th Amendment is not the right mechanism to bar him — or future autocrats — from office, then a new instrument is needed to permit the enactment of the pikuach nefesh clause. Perhaps it rests on a combination of abuses that add up to a reasonable expectation that a person threatens the independence of the critical institutions of our democracy; or the preponderance of evidence that this person will commit acts of treason (such as encouraging Vladimir Putin to attack our own democratic allies); or the overwhelming evidence of depraved behavior (liability for sexual abuse, repeated admission of sexual assault). The country needs to be able to invoke an emergency escape hatch to prevent such a person from obtaining political power.
This raises all sorts of questions about who decides and in what circumstances and subjective vs objective judgements. Yes, there is the danger that such a mechanism is antithetical to democracy itself. That’s why it must be exceptionally rare and applied in only dire circumstances. But the rules of democracy cannot be allowed to dismantle democracy, nor support those who would. To preserve the voters’ future right to vote, it may be necessary to limit their right to vote for someone who promises to undermine the electoral system.
Pikuach nefesh can’t be invoked because I’m super hungry and the pork shop is just across the street. A higher bar is required. Likewise, our democracy-saving pikuach nefesh shouldn’t be invoked because a politician lied about an affair or exaggerated their foreign policy experience. This is about preventing would-be dictators from uprooting our national principles and laying waste to our independent institutions.
In his response to the Supreme Court’s ruling, Trump said, “[T]his is for future presidents. This is not for me. This is for future presidents, all presidents.” He’s right. Imagine a future candidate looking to push beyond even Trump’s boundaries. We’ll wish then we had an escape clause to reach for, a pikuach nefesh for our democratic life.
Picture of the Day
A Nubian ibex keeps a close eye out in the Negev Desert. Native to the Middle East, there are several thousand still in the region. About 1,200 are in Israel, where they are a protected species. Ibex are mentioned in the Hebrew Bible and other ancient texts, and their horn has been used to make the shofar. Normally skittish around people, they will approach someone sitting calmly and quietly (I speak from personal experience). Strangely, such interactions often occur at lunch time.
Photo: Jason Harris
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