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Reading "House Passes Resolution Declaring Anti-Zionism A Form Of Antisemitism—Some Democrats Are Critical"

The House on Tuesday approved a GOP-led resolution that condemns antisemitism and formally declares anti-Zionism—or opposition to the movement for a Jewish state of Israel—as a form of antisemitism

And from this:

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.

Does this mean that what the US Congress did is unconstitutional?

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    With the caveat that only SCOTUS can judge with final authority what is constitutional, it seems unlikely that this contravenes the first amendment for the simple reason that this resolution makes no new law. It isn't a bill.
    – James K
    Commented Dec 31, 2023 at 10:35
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    @RogerV. No, that's not what the question is doing. That's what the US House of Representatives has just done, and OP is merely questioning it.
    – F1Krazy
    Commented Dec 31, 2023 at 10:58
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    A resolution does not have the effect of law.
    – Wastrel
    Commented Dec 31, 2023 at 15:49
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    @RogerV. If someone wishes to criticize Israel and/or Zionism, holds no negative feelings towards Jews, genuinely believes that anti-Semitism is wrong, because of this resolution they would be concerned that expressing their views on Israel/Zionism might be misinterpreted as anti-Semitism, they will hesitate to voice their opinions.
    – Mocas
    Commented Dec 31, 2023 at 16:37
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    one cannot meaningfully criticize something that one believes should not exist. I don't see why this would be true in any sense, at all.
    – TKoL
    Commented Jan 8 at 9:34

3 Answers 3

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While the constitutionality of an action often is ultimately decided in the courts, the pretty clear answer would seem to be no. Independently of whether one agrees with the resolution or not, the First Amendment to the US Constitution plausibly would be violated only under one of two conditions: if the resolution legally prevented people from saying something, broadly conceived (the freedom of speech, press, assembly, petition portion) or if it represented an establishment of religion.

Declaring anti-Semitism to be equivalent to anti-Zionism is not a restriction on freedom of expression because anti-Semitism itself is not illegal. It is not even illegal to say anti-Semitic things, even to Jews, and in fact, an attempt to make a law against anti-Semitic expression almost certainly would be ruled to violate the US Constitution. This contrasts with the rather more restrictive situation in many countries, particularly in Europe, where such a resolution might have more than symbolic force. It also contrasts with certain state laws that some people have argued to be violations of freedom of expression due to withholding government funds and contracts from companies that have expressed support for sanctions on Israel, for instance.

The resolution also does not represent an establishment of religion, because, again, it does not afford any legal protections or privileges to Judaism that other religions do not enjoy. One could possibly argue that making official pronouncements about bigotry toward any religion should represent an impermissible mixing of church and state, but considering that far more controversial elements like prayer breakfasts, "in God we trust" on the U.S. dollar, and Christmas displays generally have not been ruled to be violations, this seems unlikely to be considered such.

Perhaps most important of all, the resolution makes no new law, which would have required the Senate and the President to participate as well, not to mention a different process in the House. A few hundred people who happened to be politicians got together and expressed their solemn opinion that one idea was equivalent to another, which is in fact protected by the First Amendment. And that's it. How it affects anyone depends on how much they value those politicians' opinions.

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A fairly common way to characterize antisemitic behavior is to say that antisemites accuse Jews of being

too wealthy and too poor, too insular and too cosmopolitan, too traditional and too progressive, too weak and too powerful, too secretive and too prominent, too religious and too secular

Historically, whatever reason has been given, has been the reason de jour. And the contradictory reasons all but show it. Antisemitism, because it is a pathology, starts with the hate and comes up with the reasons afterwards.

Antisemitism is not an exclusively theological position. It can be, for some narrow theological perspectives, but those theological perspective are too narrow to evoke the kind of animus that antisemitism exhibits. So it has very little to do with religion. Again, it's a pathology.

Every attempt to narrow Jews to being just an ethnic group, or just a religion, or even just a culture, fails.
There are at least 4 major ethnic groups among Jews. A significant percentage of Jews are atheists. And after having been spread around the globe, the range of Jewish cultures mirrors varied regional histories.

Antisemitism is the only constant.

As far as trying to claim that "anti-zionism" is somehow a political opinion, which stands apart from antisemitism, I'll let one of the greatest living lawyers Alan Dershowitz, do the talking.

"Though Israel may often be deserving of criticism, what is missing is the comparable criticism of equal or greater violations by other countries and other groups. This constant, often legitimate criticism of Israel for every one of its deviations, when coupled with the absence of legitimate criticism of others, creates the impression currently prevalent on university campuses and in the press that Israel is among the worst human rights violators in the world....it is not true, but if it is repeated often enough, it takes on a reality of its own.” -- Chutzpah. MA: Little, Brown and Company, 1991. p. 119.


That was the backdrop. So was the US Congress carving out a special place for a particular religion? Clearly, not. Most Congress members don't even subscribe to that religion. Congress simply recognized that

  • Jews are an identifiable group;
  • Jews, as a group, are subject to bigoted attacks;
  • anti-zionism, in the way it is practiced, is too difficult to distinguish from antisemitism;
  • given that historically antisemitism always started with pathology and then worked its way back to finding a "reason," the fact that there is a new "reason" (that's being used to excuse anti-semitism) simply fits the pattern of the history of bigoted attacks.

And now for the question itself. Is it unconstitutional? No, because it doesn't create anything actionable. If it doesn't impose additional restrictions on legal behavior, then it's not, and cannot be, a violation of rights.

Can it be used to apply "hate speech enhancements" to criminal acts? Not more than was already the case. A criminal who was convicted of victimizing a person because the victim was an Israeli would already be subject to hate speech enhancements because "Israeli," as such, is a person's nation of origin (a protected category).

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It isn't unconstitutional because a resolution is not legislation. It is merely a declaration by the House.

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    Please remember that Politics Stack Exchange is not a soapbox. I removed the parts of this answer which were personal opinion instead of answering the question.
    – Philipp
    Commented Jan 8 at 13:32

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