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Friday, October 15, 2021

Defining an Insurrection

One question that will arise in any Section Three litigation is whether what occurred at the Capitol in January was an insurrection in a constitutional sense. One argument against that conclusion is that an insurrection for Section 3 purposes must be comparable to the Civil War. The riot at the Capitol, the argument goes, was not significant enough to qualify. 

While I'm sure there'll be more research on this point, my initial review of sources prior to the Civil War indicates that "insurrection" was used to refer to all sorts of smaller scale events that involved a group of people who used violence in part to obstruct a legal process. For instance, the Whiskey Rebellion of the 1790s was described as the "Whisky Insurrection." Shays Rebellion in the 1780s was described as an insurrection. Nat Turner's Rebellion in the 1830s was described as the "Southampton Insurrection." And so on.

Here's another interesting piece of evidence. When Federalist #10 appeared in the newspapers in New York, the subtitle of Madison's Essay was "The Union As a Safeguard Against Domestic Faction and Insurrection." Madison was not talking about a civil war or some large-scale calamity. He was instead explaining why a larger union would tend to prevent factions powerful enough to obstruct the law.

Did Section Three of the Fourteenth Amendment change the definition of insurrection in 1868? I don't think so. Nobody at the time said that they were applying a stricter or more limited meaning. And the post-bellum use of the term does not seem different.

BTW, I didn't know the subtitle (or headline) of Federalist #10 until yesterday. Makes me wonder how the other essays were subtitled. 

Posted by Gerard Magliocca on October 15, 2021 at 09:21 AM | Permalink

Comments

Not necessary a double post, because it is relevant to both posts, although I do not know if this is the first time a virus was used to justify an obstruction of Justice.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6743070/

Posted by: Nancy | Oct 26, 2021 2:27:55 PM

“I thought you should know there is another insurrection afoot (pun intended.”
No doubt, replacing any form of government with anarchy, will result in a violent form of insurrection.

It is important to note the Federal Government does not have the authority to mandate a Covid 19 Mandate.

Even if the local government were to mandate a vaccine, the Covid 19 Vaccine in particular, does not provide full immunity from Covid 19, nor does it prevent transmission of Covid 19, due to the fact that it only targets the spike protein of the virus, not the virus itself.

In some susceptible persons, Covid 19 causes iron deregulation, while in others the Covid 19 Vaccine causes iron deregulation.

One cannot make an informed consent wi(thout knowing whether the vaccine, by targeting the spike protein will restore the proper balance of iron for an individual or end up causing toxicity, due to the fact that iron levels can differ amongst different groups of people.

One needs to know whether hepcidin levels, and ferritin levels were measured during the vaccine trials.What did they measure to determine whether the vaccine could counteract Covid 19?
What exactly was measured, compared and contrasted during the study to determine the efficacy of the vaccine, and for what period of time? All vital information if one wants to determine efficacy.

Next, one has to show how for a certain individual, the vaccine has a greater efficacy rate for that particular individual, and will provide a greater degree of immunity than using a particular treatment while building natural immunity.

Finally, you will have to demonstrate how the ends justify the means while not violating fr any particular individual, The First or The Eighth Amendment to our Constitution and The Principle Of Proportionality.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Posted by: N.D. | Oct 25, 2021 12:29:56 AM

Gerard,

I, too, appreciate you letting us comment on this thread.

I thought you should know there is another insurrection afoot (pun intended)

https://www.realclearpolitics.com/video/2021/10/18/chicago_mayor_lightfoot_fop_president_is_attempting_to_induce_an_insurrection_by_opposing_vaccine_mandate.html

Posted by: thegreatdisappointment | Oct 18, 2021 4:26:32 PM

Thank you for allowing me to post on your Blog Posts, Professor Magliocca.

Perhaps The University Of Notre Dame And Indiana University would be willing to work together to come up with a solution to The Covid 19 Vaccine Mandate, based on the universal principle, that first and foremost, “do no harm”.

I can only imagine the Good that can come from that:

https://research.nd.edu/our-research/key-research-areas/cancer/

https://jeccr.biomedcentral.com/articles/10.1186/s13046-019-1397-3

Godspeed to all who travel here🙏💕

Posted by: Nancy | Oct 17, 2021 3:42:20 PM

Glad you found this helpful Monica. And interesting comments. Thanks everyone for reading.

Posted by: Gerard | Oct 17, 2021 10:56:34 AM

Thanks for the post, Gerard. You've given me some good food for thought as I'm reflecting and retooling spring syllabi.

Posted by: Monica Eppinger | Oct 17, 2021 8:57:31 AM

LOL @ Joe.

Nobody said anything about conspiracy charges.

The point was that no *seditious* conspiracy charges have been brought, nor any charges on insurrection.

LOL even harder at various acts of "treason" occurring.

Super cool, though, that now language used in a failed impeachment document defines crimes.

Posted by: thegreatdisappointment | Oct 17, 2021 3:09:38 AM

>And yet, no charges of seditious conspiracy or insurrection.

Charges of conspiracy have been brought. This and other charges involve things, even at this date with more to come, include what "insurrection" as a historical and textual matter entails. Of course, what this entails is the very dispute at issue, so we are back basically at the beginning.

https://www.justice.gov/usao-dc/capitol-breach-cases

>we can safely conclude that there was no insurrection

Not really.

A basic point here is that "insurrection" is here being used as a constitutional term, including the reach of 14A, sec. 3. Congress has an important role here as the professor has noted.

Its statement in an impeachment (passed by the House and accepted by a 57 senator majority; many more not challenging it) is very notable there. A pending bill also can be used to add additional clarity.

Prosecution discretion does not answer the question of it being an insurrection. Various acts of "treason," especially as originally understood, occurred even if treason as a crime prosecuted is much more rare over our history.

Posted by: Joe | Oct 16, 2021 8:45:10 PM

And yet, no charges of seditious conspiracy or insurrection.

And since so many cases have already been decided by courts, and there aren't even any charges of seditious conspiracy or insurrection, nor are there likely to be any, we can safely conclude that there was no insurrection.

Posted by: thegreatdisappointment | Oct 16, 2021 3:17:26 PM

>While questions may have been examined and answered”, they have not been examined and answered in a Court of Law.

My reply was general and should be treated as such.

Anyway, there has already been many 1/6 cases tried in the court of law, including a finding weapons were present and other things I cited.

So, if legal findings in court is key, well, that already happened to some extent.

Posted by: Joe | Oct 16, 2021 3:12:52 PM

Joe, I simply stated how the case should be laid out. You provided evidence that may be brought before the Court.
The Court will, after hearing the evidence, determine what is factual and what is not, and proceed with the case accordingly.
While questions may have been examined and answered”, they have not been examined and answered in a Court of Law.
That difference makes all the difference.

Posted by: Nancy | Oct 16, 2021 1:34:01 PM

You seem to focus on size rather than intent. Prior to Shays' Rebellion, people in western Massachusetts had already declared a state of war existed and they were going to overthrow the government.

First, "Shays" Rebellion has always been a misnomer because the protests rocked all through Massachusetts, with Shays assuming a leadership role only in the latter part. Second, Massachusetts leaders actually considered themselves "bordering on Civil War" (James Warren to John Adams).

What followed among the political leadership of Massachusetts were acts that I would have said Americans today would recoil from like they do the Alien and Sedition Acts; however, I've now seen the glitterati of the American bar support indefinite detention of and withholding medical treatment from Jan. 6 suspects.

Second, Shays' Rebellion *attacked* a federal army. So, they literally levied war against the United States. And when I say attacked, I don't mean some people were found with plastic handcuffs or there were two or three weapons in some location, I mean 3,000 fully armed persons arrayed for battle marched on the federal armory with the intention to take the government property.

Interesting, this is the same action taken by the traitor John Brown who only a few years after his death became a hero to the very Republic he attacked.

Ergo, simply comparing the size of Shays Rebellion and the American Civil War as some sort of equivalent for Jan 6 is a no-go. I would encourage you to at least read the Wikipedia pages on these episodes.

Posted by: thegreatdisappointment | Oct 16, 2021 1:32:47 PM

Since these are frames that are promoted by many people, including members of the government, this is worth answering.

>Thank God, there was no looting or burning.

There were thefts, vandalism, physical attacks, loss of life.

>Certainly, it is not a crime to challenge the result of an election if the proper procedure is used.

Yes. Invading the Capitol is not a 'proper procedure.'

>How does one have an insurrection without the use of weapons?

There were weapons. Police were physically attacked. What an "insurrection" was noted. A 100 people even without a single weapon could physically "obstruct a legal process," including a judicial hearing.

>And if protesters were able to get weapons into the Capital Building, is that not a cause for alarm?

Sure. It has been reported that stricter D.C. gun laws probably prevented more harm from happening.

To safeguard the safety of the Capitol, weapons checks were started though some Republicans in Congress railed against them. A few simply refused to follow them.

>What is the difference between a peaceful protest, a riot, and an insurrection, and how does one determine if one is involved in a peaceful protest, a riot, or an insurrection?

The OP touched upon this -- a "peaceful protest" is not one that stops a legal process, particularly illegally entering the U.S. Capitol to stop the legal transfer of power.

It cited specific examples of an insurrection to provide context.

>How can a peaceful protest, a riot, or an insurrection prevent the transfer of power in an election?

A "peaceful protest" is probably not going to do so unless it is to the degree of some mass movement the shuts down the government for an extended period of time.

But, there are various ways a riot or insurrection can prevent or try to prevent the transfer of power.

Again, examples cited and further writing by the author helps provide details.

>All questions that are necessary to ask in order to determine which laws were broken.and who is guilty of breaking the Law.

Fine enough. They have been examined and answered.

>Whenever Law and Order are broken, the risk of losing one’s life becomes that much greater.

That's exaggerated since breaking the law happens in lots of forms w/o life being at risk. But, it's true on some level, as seen in the insurrection here which led to loss of life and serious harm to multiple police personnel.

Posted by: Joe | Oct 16, 2021 12:25:55 PM

Always with your lists, Patrick. Maybe you should take the time to stop and reflect on what those authors actually say, rather than focusing on compiling. If you only knew that you write and think like a first-year doctoral student. Perhaps then you'd hold off on all of the bald assertions...

Aside from Edmundson's interpretation of Rawls having been well and truly demolished in the reviews (and as if anyone other than a handful of people outside of the USA who matter even give a damn about Rawls anyway), do you reckon that the residual analytic Marxists will be the first ones up against the wall when the revolution comes? (Wanna bet that the firing squads would be composed of Antifa totalitarians?)

Posted by: Anonymous Bosch | Oct 16, 2021 12:18:34 PM

Thank God, there was no looting or burning.

Certainly, it is not a crime to challenge the result of an election if the proper procedure is used.

How does one have an insurrection without the use of weapons? And if protesters were able to get weapons into the Capital Building, is that not a cause for alarm?

What is the difference between a peaceful protest, a riot, and an insurrection, and how does one determine if one is involved in a peaceful protest, a riot, or an insurrection?

How can a peaceful protest, a riot, or an insurrection prevent the transfer of power in an election?

All questions that are necessary to ask in order to determine which laws were broken.and who is guilty of breaking the Law.

Whenever Law and Order are broken, the risk of losing one’s life becomes that much greater.

Posted by: Nancy | Oct 16, 2021 11:28:16 AM

Perhaps the best collection of all the relevant material having to do with the insurrection https://www.justsecurity.org/77022/january-6-clearinghouse/

What is "my lot"? Just as there all kinds of Christians, Muslims, Buddhists, Anarchists, what have you, etc., there all all kinds of Marxists, and the more thoughtful and democratic among us do not talk of "seizing" anything. You should take the trouble to be more informed before making extravagant and sloppy inferences sans any evidence whatsoever. Take the trouble to read Michael Luntley, Erik Olin Wright, G.A. Cohen, Eric Hobswbawm, Jon Elster, John Rawls (the 'reticent socialist' in the words of William A. Edmundson), John Roemer, Norman Geras, among others. You can consult my bibliography on Marxism for the specific references. Like the Dalai Lama and the Army veteran running for city council in Long Beach, CA, Steven Estrada, my worldview is predominantly Marxist (or 'communist') and Buddhist (should you not understand how that is possible, you might read the special issue of the journal Rethinking Marxism, Vol. 18, Nos. 3-4 [July-October 2016], on 'Marxism and Spirituality').

Finally, anyone who is anti-fascist is antifa, including yours truly, and I never wear black clothing or a uniform of any sort, although I cannot speak for my many friends and allies on the Left who are also antifa.

Posted by: Patrick S. O'Donnell | Oct 16, 2021 11:01:36 AM

"...the slogans on their clothing, the words they screamed and shouted, the military garb, their Confederate flags, their acts of violence, the construction of a gallows outside the Capitol, the discovery of two pipe bombs and a cooler full of Molotov cocktails, and the fact that five people died during this insurrection."


Military garb? Is that how we're characterizing the guy without the shirt and horns, now? (What about the black uniforms of antifa?) Your own catalogue actually shows why this couldn't be a credible effort at insurrection, and why the preponderance of the participants couldn't possibly have understood their actions to be in furtherance of that either.

And just because you baldly assert that their actions couldn't have been in defense of the constitution or democracy (or the rule of law) doesn't make it so.

Speaking of inherently suspect motives and beliefs, when do you reckon your lot will try to seize the means of production and exchange? Could you try to avoid Tuesdays? They're quite busy for me.

Posted by: Anonymous Bosch | Oct 16, 2021 5:44:47 AM

A few comments here in the past provided a narrower view of "insurrection."

The professor's analysis is appreciated. Using a historical approach, the word has a broad reading. Even a somewhat more limited meaning, as suggested by Patrick S. O'Donnell's comment etc., would apply here.

The event in purpose and effect (investigation pending for more details) interfered with the basic transfer of power. I think the 14A gives Congress some special discretion to make judgment calls here given the repeated reference to congressional action. More so than let's say the 1A does.

Applying the term here is surely reasonable. Let's pass that pending enforcement bill referenced in the past by the author of this blog post to make things that much more clear.

Posted by: Joe | Oct 15, 2021 5:01:44 PM

While I am not constitutional or legal expert, my amateur reading of some of the aforementioned material concludes, by way of confirming my moral and political disgust, intuitions, and beliefs about the authoritarian predispositions and ideologies of many on the Right these days (and not just in this country), that this was indeed an insurrection, constitutionally speaking and otherwise. Hence I was disappointed to discover an account by one of my favorite writers on the Left, Mike Davis, that portrayed the events in a way that effectively downplayed or trivialized acts of sedition and the Trump-incited insurrectionary mob that attacked the U.S. Capitol building on January 6, 2021:

“Yesterday’s ‘sacrileges’ in our temple of democracy – oh, poor defiled city on the hill, etc. – constituted an ‘insurrection’ only in the sense of dark comedy. What was essentially a big biker gang dressed as circus performers and war-surplus barbarians – including the guy with a painted face posing as horned bison in a fur coat – stormed the ultimate country club, squatted on Pence’s throne, chased Senators into the sewers, casually picked their noses and rifled files and, above all, shot endless selfies to send to the dudes back home. Otherwise they didn’t have a clue. (The aesthetic was pure Buñuel and Dali: ‘Our only rule was very simple: no idea or image that might lend itself to a rational explanation of any kind would be accepted.’).”— Mike Davis, in the first paragraph from his post for Sidecar, a blog of the New Left Review.

In the words of one of my FB friends, Ben Manski,

“Too many people who should know better are downplaying what happened on Wednesday [that is, the insurrectionary assault on the nation’s Capitol building on January 6 during a joint session of Congress]. In the hundreds of mass protests and dozens of occupations and other direct actions I've been a part of we none of us ever killed anyone. These people did. Many of those at the Capitol had murderous intent, many had military training and paramilitary experience, and had they gained access to members of Congress, it would have been much, much worse. Among those who they were targeting were members of the Progressive Caucus. Get a clue.”

I count Mike Davis among those on the Left bright enough to “know better.” His comments downplayed if not trivialized the insurrectionary actions and attempted coup by this motley mob of right-wing fanatics belonging to the anti-democratic and perfervid cult of Trump. Something bordering on a consensus has emerged among political pundits, cable news network journalists, politicians, public office holders, psychologists and psychiatrists, and intellectuals that finds President Trump manifestly unfit for office, and although the reasons may vary, I would argue they stem in large measure from the fact that he is a megalomaniacal narcissist, afflicted with “extreme and unbridled present hedonism,” and dispositionally prone to both psychopathy and sociopathy. In layman’s terms, he is completely “unhinged.” Both Trump and his followers subscribe to rather incoherent (or at least inconsistent) ideologies that are suffused with phantasies and delusory conspiracy scenarios of one kind or another and evidence no abiding concern for the democratic rule of law, the Constitution, human rights, or participatory, deliberative, and representative democracy.

I do not want to focus on Trump, or those who, on behalf of Trump, including Rudy Giuliani, Donald Trump, Jr., and Republican members from both Houses of Congress who inspired and incited the mob that day. Their behavior, denials, and self-deception and ideological illusions speak for themselves. And as someone whose worldview/lifeworld is in large part (in economics and to some extent politics) Marxist, it is troubling that Davis, or anyone on the Left who might share his views, would downplay the insurrectionary and violent behavior of white supremacists, fascists, Christian nationalists, Proud Boys, anti-Semites, Q-Anon nut-jobs, and so forth and so on. The point being that these people were (and are) not acting on behalf of the Constitution, democracy, human rights or human dignity, justice (be it racial, economic, what have you), or a more benevolent and humane world. Their motives, values, and beliefs, and thus their aims, are inherently suspect, and they should be held accountable for their illegal behavior (which is far from what we think of as civil disobedience).

While we do not have yet a complete catalog of their intentions and aims, we can certainly make inferences from the slogans on their clothing, the words they screamed and shouted, the military garb, their Confederate flags, their acts of violence, the construction of a gallows outside the Capitol, the discovery of two pipe bombs and a cooler full of Molotov cocktails, and the fact that five people died during this insurrection. What Davis describes as “essentially a big biker gang dressed as circus performers and war-surplus barbarians,” while aestheticizing the actions of this mob, fails to come close to accurately depicting what occurred on that day. To repeat, Davis—and not alone, according to Manski—definitely downplayed if not trivialized the insurrectionary assault and coup attempt at the Capitol building. Members of this mob did not hesitate to use violence, being motivated by ideologies dependent on a pletheora of phantasies and delusions. The fact that some of them looked clownish or buffoonish in no way diminishes their ongoing threat to participatory, deliberative and representative democratic principles, values, procedures, and institutions, including a democratically suffused rule of law, part of which is captured in the Constitution.

Posted by: Patrick S. O'Donnell | Oct 15, 2021 4:41:27 PM

I have a Signet Classic version of the Federalist Papers (intro by Charles Kesler / Edited by Clinton Rossitor).

No. 9 is given the title "The Union As a Safeguard Against Domestic Faction and Insurrection" while No. 10 is "The Same Subject Continued."

I was under the impression that this is a common thing; for instance the Avalon Project online provides the titles too ...

https://avalon.law.yale.edu/18th_century/fed09.asp

(Avalon for No. 10 does add a subtitle to remind what the "subject" being continued is, which is not found in the volume I referenced above.)

Posted by: Joe | Oct 15, 2021 11:29:30 AM

By:

" ...obstruct a legal process" it is getting closer, but not enough of course. For threatening a witness may also amount to obstruction of legal process, yet, not insurrection.

The missing part is simply:

For obstructing or challenging central sovereign power. shaking central and legitimate and legal government.

That is why, some argue that those capitol riots, constitute insurrection. Clear nexus to transition of power (counting votes in the Senate etc...). While it was clear, that they wanted to challenge the results of the election, and preventing transition of power.

Thanks

Posted by: El roam | Oct 15, 2021 10:40:11 AM

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