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Tuesday, January 19, 2021

A Zone of Twilight

I did a podcast  with Daniel Hemel on Section Three for Lawfare. As we were recording, I was struck by the fact that we really are in Robert Jackson's metaphorical zone of twilight here. There are few, if any, helpful authorities and we have to reason in a more general way on a very important question.

Couple of highlights as you listen. First, Dan pointed out that there are insurance cases on the definition of insurrection (presumably with respect to coverage issues in foreign nations). Second, he made the excellent point that there is a deep connection between the Section Three enforcement power that was in the First Ku Klux Klan Act (since repealed) and a reassertion of that power in response to a mob that contained white supremacists and carried the Confederate Flag. Third, I played around with the idea that Section Two and Section Three of the Fourteenth Amendment are linked (as I explained in my paper) but "insurrection" does not appear in Section Two. Can we draw any conclusion from that? I'm not sure. (Dictionaries back then, by the way, tended to define an insurrection as a brief rebellion, which is not a bad fit with what occurred at the Capitol and suggests that the difference between an insurrection and a rebellion is just a matter of degree.)

UPDATE: Here is an essay I've written on Lawfare about Section Three.

Posted by Gerard Magliocca on January 19, 2021 at 12:29 PM | Permalink


I read Hemel's Lawfare article.

My favorite part was where he finally confronted the issue with his definition--specifically, that the specific intent of an insurrection must be the overthrow of a constituted government *and* the assumption of those powers.

Hemel tries to get around this with a mere assertion: "Trump and his supporters engaged in an effort to keep the constituted government in power. Arguably, the insurance definition of insurrection thus does not capture a “self-coup” like the one we witnessed on Jan. 6."

First, the protesters believed that the election was stolen and wanted there to be (what they felt was) an adequate investigation into the election. This is not a self-coup. In addition, at no point on Jan. 6 did Trump try to claim extra power, increased power, or power beyond Jan. 6. At no point did Trump insinuate that he would remain president past Jan. 20 regardless of what happened.

In short, nobody on Jan. 6 performed any "action specifically intended" to overthrow the government of the United States and keep Trump in power beyond Jan. 20. When they got into the capitol, no group claimed that Trump was president no matter what; no group tried to invite Trump to claim a second term; etc., etc.

So all we have is Hemel's assertion not backed by any *actual* evidence.

In all seriousness, it's time for you law professors to take the lead. It's time to say, "This wasn't an insurrection; however, it probably should have been. Likewise, CHAZ was probably a rebellion. We need to revise the laws on insurrection and rebellion to make these crimes clearly defined."

That's the way out of this. That's one way you law professors can have a massively stabilizing and beneficial effect on the country.

Posted by: thegreatdisappointment | Jan 19, 2021 6:52:47 PM

Zone of twilight, yes.

This is a new experience. Old rules only help so much.

Your discussions are helpful (and open to debate along edges at least) but that should be remembered.

Posted by: Joe | Jan 19, 2021 3:44:25 PM

I wonder why Hemel neglected to mention what his cited case said re: goals of insurrection having to match those of rebellion.

It's almost like he was . . . nah, I'm sure it was just an honest mistake that he forgot to discuss this rather important distinction about 'insurrection' when he was . . . asked about the distinction of 'insurrection' and . . . mentioned this case . . .

Nah, Hemel would never intentionally . . . nah I can't even type it even to say Hemel *didn't* do it.

Posted by: thegreatdisappointment | Jan 19, 2021 2:23:11 PM

@ I'm disappointed

I didn't realize we were back to considering dead bodies delegitimizing factors of a movement. Honestly, it's really difficult for me to keep track of the rules you're playing by day-to-day.


Posted by: thegreatdisappointment | Jan 19, 2021 2:12:48 PM

@thegreatdisappointment, when what you spuriously label "trespassing" involves the death of four or more people and injuries to dozens of law enforcement officers, maybe don't be a glib a*****e about it, hmm?

Posted by: I'm disappointed in you too | Jan 19, 2021 2:09:58 PM

Ouch. Hemel's own cited case just destroyed the argument on insurrection:

"Therefore, we think the district judge correctly told the jury that, to constitute an insurrection or rebellion within the meaning of these policies, there must have been a movement accompanied by action specifically intended to overthrow the constituted government and to take possession of the inherent powers thereof."

So even though, yes, the judge stated that insurrection was a milder form of rebellion, it appears that the aims must be the same: the *intended* goal of an insurrection must be specifically to overthrow a constituted government *and* take possession of the government's inherent power.

Neither of those elements are present in the action of Jan. 6. There were no direct actions to overthrow the government of the United States and no attempt to take possession of the government's power.

Posted by: thegreatdisappointment | Jan 19, 2021 2:07:31 PM

Listened to the podcast. According to the insurance case definition, CHAZ was an honest-to-goodness rebellion since it was of a sustained duration (6 weeks) and established de fact control over a territory that it seized by force.

And everybody's still quiet as a church mouse.

Posted by: thegreatdisappointment | Jan 19, 2021 1:54:54 PM

Fallout from the Great Trespassing of 2021 continues.

Posted by: thegreatdisappointment | Jan 19, 2021 1:47:21 PM

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