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Saturday, September 04, 2021

Insurrection and the Excited Utterance Exception

I'm teaching a Fourteenth Amendment seminar this semester, and we will talk about Section Three. One question my students are raising is the definition of an insurrection. The answer is that there is no clear constitutional standard for an insurrection, although I'm sure that over the next few years there will be more research on that point.

In defense of the argument that what occurred on January 6th was an insurrection, you can say at least two things. First, the article of impeachment adopted by the House of Representatives uses that term. Second, there was widespread use of "insurrection" in the media to describe what happened. 

Here is a third possibility. We recognize an excited utterance exception to the hearsay rule. Why? Because we tend to think that people blurt out the truth in these moments. Now what did the members of Congress (including Mitch McConnell) say right after the riot? They generally described what happened as an "insurrection," in part because they were still reeling from the violence. Is that like an excited utterance that reveals the truth? I would say yes. Later when people realized that insurrection was a loaded term some reconsidered their language. But that's not the right vantage point for their true views

Posted by Gerard Magliocca on September 4, 2021 at 01:49 PM | Permalink


The Insurrection Act In no way justifies the taking of the life of Ashli Babbit, who, like George Floyd, was “equal before the law”.

Posted by: Nancy | Sep 14, 2021 10:15:08 AM

Thank God, what was missing from this “insurrection” was burning and looting, but there was some destruction of property, with the breaking of glass, and those persons should be held accountable for that crime, which would include trespassing, for those who were not permitted to enter the Capital Building that day.
For those peaceful protesters, who were invited in, but did not engage in any crime, certainly all persons being equal before the Law, which would include The Eighth Amendment and the Principle Of Proportionality, no doubt, cannot be held to a different standard, when considering any Act, including The Insurrection Act.

Posted by: Nancy | Sep 14, 2021 10:04:58 AM


Dude, stop flattering yourself; it's embarrassing. You are an exceedingly average and mundane disappointment.

Posted by: Troll Critic 2.0 | Sep 7, 2021 10:59:49 AM

More present-sense impression, no?

Posted by: Orin Kerr | Sep 5, 2021 11:10:46 PM

Since we're hanging out in the mid-nineteenth century, we couldn't go on without a word about the great insurrectionist John Brown who actually committed real treason, literally levying war on the United States by attacking a US Army installation, killing one soldier and wounding another.

Ironically, that traitor became a hero to the very union he attacked and today is the namesake of a renowned left-wing armed militia.

Not a peep from anyone.

I chuckle when I think of if the Proud Boys changed their name to the Benedict Arnold Gun Club.h

Posted by: thegreatdisappointment | Sep 5, 2021 9:29:46 PM

"If some armed mob tried to stop Congress from officially making Lincoln POTUS, it also would have been insurrection."

That means Baltimore led an insurrection before the CSA.

I presume actively trying to murder the president-elect so he couldn't become president would rank beside trying to stop Congress from certifying an election.

Posted by: thegreatdisappointment | Sep 5, 2021 9:25:32 PM

The three criteria cited to narrow on that are not equally useful.

Citation in the media provides limited value though helps somewhat to determine what is the current general understanding. Common understanding is repeatedly cited as a criteria to apply constitutional terms.

The "excited utterance" is useful to some extent. What someone says in a moment of stress might in another case not be useful here. Reasoned consideration can be both strategic and just that -- a reasoned view.

The citation in the House impeachment as well as a strong vote in the Senate is probably the strongest thing. Again, the 14A specifically gives Congress special power to enforce the amendment. A majority of both houses by their votes supported the idea it was an insurrection.

Even the minority against it focused largely on (fake) technical arguments that the Senate didn't have the power to convict even if Trump sold nuclear codes to North Korea or something. They did so large since the facts, including his support of the insurrection, was so glaring.

Posted by: Joe | Sep 5, 2021 5:54:56 PM

"politicians were inclined to use the word insurrection immediately afterwards because they aren't lawyers"

Many of them are lawyers or even taught law. They also have a job to write the law. They know a bit about what law is.

And, the 14A in particular is not just something "lawyers" define. The 14A specifically has a section that provides congressional power to enforce it.

I'm not an originalist, but the current understanding also very well can follow the original understanding. And, there was even more understanding then that Congress would have a lot of discretion here.

The mob very well included a component (included people who brought materials to do so) that wanted to take over the U.S. Capitol, the seat of government of this country, and stop the electoral count. Trump and others egged them on. Many had a specific intent to the stop the transfer of power. Others aided and abetted the attempt.

It is wordplay not to say this reasonably should cover 'insurrection.' Some strictness might be warranted if criminal punishment was at stake here. But, for purposes of the 14A section at issue, which covers a political remedy, it is very well insurrection.

Some protest can be criminal. It can even include trespass on governmental property. But, this specific action had the function as well as the overall effect of threatening the transfer of power.

If insurrection does not entail that, the term is being used in dubious ways. If some armed mob tried to stop Congress from officially making Lincoln POTUS, it also would have been insurrection.

I appreciate the law professor here with some knowledge seems to agree (though he was wrong about impeachment & Congress seems in no way in a rush to actually focus on this provision) on a basic level. It's somewhat a minor victory & I disagree with him on various things. But, his discussion on this topic has been useful.

Posted by: Joe | Sep 5, 2021 5:47:03 PM

1/6 wasn't an insurrection.

But CHAZ violently seizing US sovereign soil, creating an armed force to police it, claiming autonomy, and setting up a government to rival the US government...

That gets much closer to real insurrection.

Can't get Magliocca to talk about that one, though.

Posted by: thegreatdisappointment | Sep 5, 2021 2:07:57 PM

Concerning the second possibility, if we in the rest of the world relied on the American corporate media for understandings of legal conceptions, or the definitions of legal terms, we would all be doomed. You might as well render Orwell's 1984 into an official, legal canon of construction.

Regarding the third, a given person's honest, sincere flash answer doesn't mean that it's an accurate one. Given all of the empirical research on this sort of stuff, it's somewhat insane for it to be lent credence in this context.

Posted by: a non | Sep 5, 2021 9:07:56 AM

I think as a matter of common meaning (and dictionary definition) an 'insurrection' must have either the intent or the plausible effect of illegally overthrowing the government via violence/force.

Yes, the mob used violence/force and they wished to overturn the will of the voters (morally outrageous imo) but they obviously didn't intend to do so by holding the capital against the US military or even holding congresspeople hostage. I mean who knows what might have happened had they caught some but, like most angry protests/riots, they didn't have any coherent plan in mind when they broke into the capital (beyond maybe 'get those bad guys') much less the intention to seize power by force.

And politicians were inclined to use the word insurrection immediately afterwards because they aren't lawyers and weren't trying to convey some legal judgement about the act but rather indicate that it was something like *morally* equivalent to an insurrection. And that seems fair in that they did intend to overturn what we've come to see as granting democratic legitimacy: the votes of the people. But as morally bad as it might be getting congress to vote to overturn the election (the only coherent plan they had) just isn't an insurrection (it's plausibly constitutional...at least procedurally and certainly isn't a violent seizure of power).

Posted by: Peter Gerdes | Sep 5, 2021 4:29:30 AM

Generally speaking, one constitution, doesn't define terms. This is because, terms, have typically, specific scope or function, within the framework of an act or law. Then one term would bear, specific and narrow meaning. While the constitution, bears, more abstract and general meaning, must be related or introduced or incorporated by nature, to every aspect or legal field. For this is the nature of every constitution.

But, there is definition for insurrection in the Insurrection act ( and beyond). Anyway, it is correct, that people may exaggerate while agitated during such events as those riots in January 6 around the Capitol. Yet, that term bears legal meaning, and in this case, it is hard even to exaggerate too much. For, it meant surly for such situations, when disturbing political process, for transition of governance and execution of law and constitutional duties, and not merely for protesting. They were (the rioters) violently penetrating the buildings of the houses, while in the middle of counting votes etc.... in clear relation or nexus to transition of power.

The Congressional Research Service, states so by the way:

" The Constitution does not define “insurrection” or “rebellion.” The Constitution, however, does empower Congress to call forth the militia “to suppress Insurrection.” It seems to follow that Congress has the authority to define “insurrection” for that purpose, which it has arguably done through enactment of the Insurrection Act. Part of that Act authorizes the President to call up the militia and Armed Forces in the event of “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States [that] make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings. . . .” That language might provide a point of reference for interpreting the Fourteenth Amendment. Another part of the Insurrection Act, enacted approximately three years after the Fourteenth Amendment and thus arguably particularly relevant, authorizes the use of armed forces in cases where insurrectionists “oppose[] or obstruct[] the execution of the laws of the United States or impede[] the course of justice under those laws.” Congressional activities, including fulfilling the constitutional duty of certifying electoral votes, would arguably qualify as an execution of the laws of the United States. The availability of judicial proceedings to enforce the law, however, may provide a countervailing consideration.

As the Supreme Court has observed in the context of the Insurrection Act, it is generally up to the President to determine whether a civil disturbance rises to the level of an insurrection or obstruction of the laws serious enough to overcome the ability of civil authorities to suppress it. Consequently, a presidential invocation of the Insurrection Act would likely suffice to establish the existence of an insurrection for Fourteenth Amendment disqualification purposes. However, presidential invocation of the act might not be necessary.

Two constitutional powers also arguably authorize Congress to determine the occurrence of an insurrection by legislation: the militia clause and Section 5 of the Fourteenth Amendment. The Militia Clause, Art. I, § 8, cl. 15, grants Congress the authority to call forth the militia to “suppress Insurrections.” Section 5 of the Fourteenth Amendment provides Congress “the power to enforce [the Amendment] by appropriate legislation.” A legislative determination that an insurrection occurred pursuant to one of these constitutional authorities would likely at least be accorded judicial weight in the event of a prosecution for insurrection or any procedure Congress might put in place to determine disqualification under Section 3."

Here again, very recommended:



Posted by: El roam | Sep 4, 2021 3:25:34 PM

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