Socialists and Communists Are Constitutionally Ineligible to Hold Office

Jonathan Emord, If the Constitution were construed in accordance with its plain and intended meaning, there would be no question but that every member of Congress who is a self-described socialist would be ineligible to hold federal or state legislative, executive, and judicial office.

Among self-avowed socialists serving in Congress are Democratic Socialists of America members Alexandria Ocasio-Cortez; Rashida Tlaib; Cori Bush; and Jamaal Bowman.  Senator Bernie Sanders and Congresswoman Ilhan Omar likewise describe themselves as “democratic socialists.” None is eligible to be in office under Article VI, Clause 3 of the Constitution. Moreover, legislators, executives, and jurists on the state and local level who are self-avowed socialists are likewise constitutionally ineligible to hold their offices under Article VI, Clause 3 and under Article IV, Section 4 of the Constitution. In a just world, those provisions would be honored in consistent observance; the Republican Form of government would be protected, as the Founding Fathers expressly intended.

 The federal Constitution creates a limited federal republic. The vesting clauses of Articles I, II, and III place the legislative, executive, and judicial powers in separate, competing departments that check and balance each other’s operation. Critically, the repositories of these powers cannot be collocated and the powers vested may not, under the original understanding, be redelegated to legislatively created agencies or departments and thereby combined. Moreover, the Constitution is one of strictly enumerated powers and under the 9th and 10th Amendments, individual natural rights to life, liberty, and property in addition to those expressly protected from the federal government in the Bill of Rights are “retained by the people” and all powers not expressly delegated to the United States in the Constitution “are reserved to the States respectively, or to the people.” While socialist and communist regimes define governments as sovereign, the unique constitutional republic of the United States define individuals as sovereign.

 In Article VI, Clause 3, the Constitution requires that all representatives, senators, members of state legislatures, executive officers, and judicial officers “both of the United States and of the several States shall be bound by Oath or Affirmation to support the Constitution.” In addition, in Article IV, Section 4, the United States must “guarantee to every State in the Union a Republican Form of Government.”

 The plain import of those provisions is to ensure that the Republican Form of government created by the Constitution remains inviolate on the federal and state levels. Those provisions, and in addition Article V (the amending power, which I leave for another day), create mechanisms to guard against deviation from the Republican Form of government. The constitutional requirement that those who hold legislative, executive, or judicial office on the state or federal level affirm or swear an oath to support the Constitution is far from merely ceremonial and superficial; it is weighty, an oath carrying with it at least as much gravity as sworn testimony in a civil or criminal proceeding before an Article III Court. In an age when your word was your bond and honor was expected, those who so swore or affirmed meant it, and all others thereafter were expected to likewise mean it. As added protection, the Constitution imposes on the United States government not only the duty to uphold the Constitution on the federal level but also to guarantee the Constitution’s Republican Form in every state.

 When socialists or communists purport to swear or affirm their support for the Constitution they are committing perjury. They consciously support a system of government antithetical to, and one which cannot co-exist with, the Republican Form created by the Constitution; they cannot support socialism or communism and likewise support the Constitution. The swearing in ceremonies for self-avowed socialist members of Congress and state and local office holders are invalid acts of fraud, corrosive to a basic protection for that government to which the American people consented, the Republican Form.

 Socialism defines a government in which all means of production, distribution, and exchange are either owned or regulated by the state. Communism defines a government in which all property (even the body of the person) is owned by the state. Socialism and communism are antithetical to, and cannot co-exist with, the Republican Form of government that the Constitution creates and that the Constitution requires be guaranteed.  In the Socialist and Communist Forms, there are no individual rights but only state defined collective rights; moreover, rights do not pre-exist government, they are bestowed by government selectively to politically favored groups and are taken away by government selectively.  In the Republican Form, all rights are those of individuals; moreover, individual rights pre-exist the state and are a birthright from God, not from government.  Indeed, contrary to the Socialist and Communist Forms, in the Republican Form, governments are, to paraphrase the Declaration of Independence, instituted for the very purpose of protecting the individual rights of the governed, which rights include those to life, liberty, and property.  And the only just powers Republican Forms have are those derived from the consent of the governed.  Socialist and Communist Forms presume powers over all life and property without popular consent.

The constitutional requirement that we preserve the Republican Form and require individuals to pledge support of the Constitution as a condition precedent to service in government are precisely aimed at preventing what the Founding Fathers called tyranny (dictatorial governance that contravenes individual rights and the rule of law). That very tyranny is what socialism and communism, by definition, impose.

The self-avowed socialists in Congress–Ocasio-Cortez, Tlaib, Bush, Bowman, Omar, and Sanders–and their socialist allies in state and local government–like Seattle Socialist City Council Member Kshama Sawant–have admitted their ineligibility to serve. In a just world that upheld the Constitution, they would be removed from office to ensure compliance with the requirements of Article VI, Clause 3, and Article IV, Section 4. If in 2022 Republicans gain control of the House and Senate, they ought to invoke Article I, Section 5, Clauses 1 and 2, and expel the self-avowed socialists and communists from Congress for their ineligibility to serve under Article VI, Clause 3, and they ought to pass legislation to demand the removal from office of self-avowed socialists and communists who occupy state and local offices in compliance with Article IV, Section 4.

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