The Constitutional Case for Keeping DSA Members Out of Office

“No person shall be a Senator or Representative in Congress..."

After the New York and New Jersey Democratic primaries, it now seems likely that the next freshman class of the House will include Dariazila Avila Chevalier, a Muslim convert who co-founded an organization that tweeted “Death to America” and who bragged, “I forgot to get napkins so I just wiped my hand on the American flag” as well as Hisham ‘Adam’ Hamawy: an associate of the Blind Sheikh terrorist leader who testified on his behalf at his terror trial.

The success of DSA (Democratic Socialists of America) candidates with Marxist and Communist views (Dariazila appears to have also praised Stalin) has captured headlines even as most people, including those in Congress, have forgotten what happened the first time a socialist won a House seat.

In 1919, the House voted 309-1 not to seat Rep. Victor L. Berger (pictured above), the first socialist congressman, based on Section 3 of the 14th Amendment, “No person shall be a Senator or Representative in Congress” if they “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

It was WWI and Berger’s Marxist rag was anti-war. “The one and only issue in this case is that of Americanism,” the House Special Committee that excluded Berger found. “It is whether a man who in 1911 took an oath as a member of the House to support the Constitution of the United States and who, when this country declared war against the Imperial German Government, became the head and front of an organized conspiracy to hinder, obstruct, and embarrass the Government in its fight for existence, should be admitted to membership in this House simply because a constituency in one of our States has seen fit to give him a plurality of its vote.”

Berger’s Socialist Party of America splintered into two parties, one of them, the Democratic Socialist Organizing Committee, whose red rose symbol is carried on by its successor, the Democratic Socialists of America or the DSA that is currently taking over the Democrats.

Some might dismiss this as ancient history, a WWI proceeding based on a Civil War amendment, but it was the Democrats who decided to revive it in recent years, citing Berger’s case, among others, during their campaign to bar President Trump and pro-Trump members of Congress from running for reelection.

The Colorado Supreme Court even excluded Trump from the ballot election based on Section 3 (the Disqualification Clause) of the 14th Amendment only to be overridden by the Supreme Court of the United States. This was part of a sustained effort to revive post-war legislation aimed at ex-Confederates and the KKK against Trump and Republicans.

While these efforts failed to achieve their goal, the 14th Amendment and some of the acts passed after the Civil War remain ticking time bombs that can be used to ban the opposition. And if Democrats and leftists achieve legislative and judicial majorities, they will revive efforts to treat J6 as an ‘insurrection’, to bar anyone who expressed support for it from public office, to prosecute anyone who holds public office and supports Trump, and to extend that to the GOP.

It would be naively optimistic to imagine that the same two-tier legal machinery that was used to hand out tough prison sentences to abortion protesters or to label the J6 protests as an insurrection while cheering on BLM and anti-ICE riots as expressions of free speech could not and would not be used to outlaw the opposition and fundamentally transform the political system.

But unlike the attempts to weaponize the Disqualification Clause against Trump or the WW! overreach of anti-war prosecutions that ultimately kept Berger out of prison and eventually allowed him back into Congress, the case for not seating DSA and other radicals is fairly clear.

There is already ample evidence against Rep. Ilhan Omar, Rep Rashida Tlaib and others from their own statements. The main defect to a Disqualification Clause case against Avila or Hisham is that the 14th Amendment only applies to elected officials who had taken an oath before their acts of treason, but that can be easily remedied once they are already in office.

And Congressional leaders can simply choose to ask Dariazila Avila Chevalier if she regrets having created an organization that called for “Death to America” or the destruction of western civilization, and whether those are still part of her goals, and see if she lies or doesn’t. Thus far, she’s thrown out gibberish word salads, even when asked if she was a Communist (despite her past Communist social media activity) rather than specifically disavowing individual positions.

Before she’s seated, she and other DSA members should at least be asked about their past statements and their membership in a political organization run by Marxists and Communists.

In Berger’s case, the House Committee on Elections declined to seat him and passed the matter on to a Special Committee. The basis for Berger’s exclusion was, among other things, a Socialist Party program that called for “resistance” to the government’s war policies. This constituted giving “aid and comfort” to the nation’s enemies in a time of war. Citing the Constitution, that “Each House shall be the judge of the elections, returns, and qualifications of its own Members”, the Special Committee found that “under this provision of the Constitution, the House of Representatives has always maintained its absolute right to exclude

Members-elect and to prevent their taking the oath of office.”

Can this be applied to leftists and their ‘resistance’ activities on behalf of international and foreign domestic terrorists? Democrats themselves made the case after J6 that domestic political opposition and protests could constitute insurrection, which the Colorado Supreme Court defined as “(1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States”. This would handily cover anti-ICE and riots on behalf of Islamic terrorists aimed at preventing the execution of presidential powers as enumerated in the Constitution of the United States.

The legal pathway isn’t a simple one. The Democrat efforts to revive the Disqualification Clause ran into questions such as whether it even applies today or was limited in application to the Confederates, and whether it was neutered by an amnesty later handed out by Congress, but as the disqualification proceedings against Berger noted, Congress alone has the power to decide who can and can’t be seated, entirely apart from any outside legal proceedings.

If that power to decide who can and can’t be seated, can’t be utilized against a Communist whose organization called for “Death to America”, whom can it be used against?

“The one and only issue in this case is that of Americanism.” Do we allow open enemies to be seated in Congress or do we, at the most basic minimum, exclude those who want to destroy the United States of America?

Daniel Greenfield is a Shillman Journalism Fellow at the David Horowitz Freedom Center. This article previously appeared at the Center’s Front Page Magazine.

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Read my book ‘Domestic Enemies: The Founding Fathers’ Fight Against the Left’ to discover the true origins of the American Left.