Monday, August 14, 2023

The Definition of an Insurrection

Gerard N. Magliocca

One comment that people make about Section Three is that an insurrection only involves an attempt to overthrow the government or widespread resistance to government authority. But that's not true, If you look at what people in the ante-bellum era described as insurrections, events that fell well short of that standard (and well short of what happened on January 6th) were called insurrections.

Let me give a simple example. The federal criminal insurrection statute does not define that term. But there are state criminal insurrection statues that do. Here is Iowa's.

An insurrection is three or more persons acting in concert and using physical violence against persons or property, with the purpose of interfering with, disrupting, or destroying the government of the state or any subdivision thereof, or to prevent any executive, legislative, or judicial officer or body from performing its lawful function.  

Does January 6th meet this standard? Of course it does. Now that doesn't mean that Iowa's law is the constitutional standard. But Iowa's more modest standard fits well within ante-bellum discourse.

More to come . . .


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