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Wednesday, January 19, 2022

The Definition of An Insurrection

I thought I would reproduce the following helpful definition from Webster's Dictionary in 1828:

INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.]

1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

What does this tell us? First, an insurrection is different from a rebellion, though some people used the terms interchangeably. An insurrection does not require "an attempt to overthrow the government." That is instead the definition of a rebellion. An insurrection is something less than that and involves open opposition to the execution of a law by a significant number of people. Take "Shays Rebellion," for example. I'm not sure when that nomenclature became established. Joseph Story instead described that event as an "insurrection" in his Constitutional Commentaries. This makes sense, as the folks who participated in Shays Rebellion were not trying to overthrow the government of Massachusetts in 1787. They were, though, openly defying the lawful authorities there. (Just an aside, slave uprisings in the South were also commonly described as insurrections. Again, these did not involve attempts to overthrow the government.)

It's also interesting to note that the word "insurrection" does not appear in Section Two of the Fourteenth Amendment. In describing whom the states could disenfranchise, the text refers to "rebellion, or other crime." One implication of that language is that "insurrection" was not understood as a crime for purposes of the Fourteenth Amendment, which is consistent with Congress's decision to use a civil remedy to enforce Section Three when the First Ku Klux Klan Act was enacted in 1870. Likewise, the exclusion of insurrection from Section Two made sense because the Framers of the Fourteenth Amendment thought disenfranchisement was a more serious sanction than a prohibition on serving in office. As a result, this stiffer sanction was reserved for the greater wrong--rebellion. 

UPDATE: One additional note. Texas law in the 1850s defined an "insurrection of slaves" as "an assembly of five or more, with arms, with intent to obtain their liberty by force."

Posted by Gerard Magliocca on January 19, 2022 at 09:43 PM | Permalink

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