Insurrections in the Nineteenth Century: Real and Imagined

Mark Graber

Charging a grand jury in Rhode Island after the Dorr Rebellion, Supreme Court Justice Joseph Story elaborated on the well-established common/constitutional law of treason and insurrection.  The Massachusetts jurist declared.

it is not necessary, that it should be a direct and positive intention entirely to subvert or overthrow the government. It will be equally treason, if the intention is by force to prevent the execution of any one or more general and public laws of the government, or to resist the exercise of any legitimate authority of the government in its sovereign capacity. Thus, if there is an assembly of persons with force, with an intent to prevent the collection of the lawful taxes or duties, levied by the government,—or to destroy all customhouses,—or to resist the administration of justice in the courts of the United States, and they proceed to execute their purpose by force,—there can be no doubt, that it would be treason against the United States.

Story’s analysis was commonplace from the ratification of the Constitution until the end of Reconstruction.  Five Supreme Court opinions, Twelve Supreme Court judicial opinions on circuit, ten other federal judicial opinions, more than ten legal treatises, and more than ten state court opinions offered similar analyses of the common/constitutional law of treason and insurrection.  John Marshall, Benjamin Curtis, Stephen Field, Francis Lieber, Nathan Dane, William Alexander Duer and Simon Greenleaf were among the legal luminaries who championed the understand of treason and insurrection that Republicans during Reconstruction constitutionalized when framing and ratifying Section Three of the Fourteenth Amendment.  I have discovered only one relative minor legal treatise published before 1866 that dissents from this consensus.

Constitutional lawyers when Section Three of the Fourteenth Amendment was framed recognized that an insurrection involved a) an assemblage, b) resisting any federal law or interfering with the course of a federal proceeding, c) by force or intimidation, d) for a public purpose.  Not every writing laid out all four of these elements, but with the exception of one criminal law treatise, none offered a rival account of the common/constitutional law of treason and insurrection.  Variations exists, but none are germane to whether an insurrection took place on January 6, 2021.

The events of January 6 satisfy the nineteenth century conditions for an insurrection.  An assemblage formed.  The crowd was far greater in numbers than the mobs that assaulted federal officials during the Whiskey and Fries Insurrections.  The assemblage was resisting both federal law and the legitimate authority of the government in its sovereign capacity.  The mob that stormed the Capital was attempting to prevent the lawful transition of power from Donald Trump to Joseph Biden.  The resistance was by force, violence, and intimidation.  The mob injured police officers and threatened to murder government officials. The assemblage had a public purpose.  Members believed the election had been stolen.  They were not there to take congressional furniture to sell on Ebay.

Chief Justice John Marshall in the wake of the Burr Rebellion explained who was an insurrectionist.  His opinion in Ex parte Bollman (1807) asserted, “if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all of those who perform any part, however minute or remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”  One member of Congress noted during the Civil War that if a person knowingly sold a pair of shoes to a confederate soldier knowing those shoes would be used in battle, then the shoe salesperson was an insurrectionist for constitutional purposes.  The Blackstonian principle that in treason all are principles was repeated in numerous judicial opinions and legal commentaries from the ratification of the Constitution to the end of Reconstruction.  A person who merely aids and abets or solicits a murder is not a murderer, but the common/constitutional law of insurrection and treason during the Civil War declared a person who aided and abetted or solicited an insurrection to be an insurrectionist.  I have discovered only one dissent from that consensus and that person appears to have changed his mind during the Civil War.

Speakers had no automatic constitutional immunity from treason and insurrection prosecutions. Supreme Court Justice Benjamin Curtis on circuit informed a grand jury that treason or insurrection was committed by “every one who counsels, commands, or procures others to commit an overt act of treason, which is accordingly committed.”  Judge John Kane declared that “successfully to instigate treason is to commit it.”  Judges and legal commentators disputed the relationship between speech and treason, with general agreement that “mere words” were not sufficient.  With only one clear exception, however, all legal commentators before the Civil War agreed that incitement to insurrection was insurrectionary behavior if the incitement was acted upon.  Much speech we consider constitutionally protected they thought treasonous.  The Brandenburg v. Ohio (1969) rule that the speech must be incitement to immediate violence was for the distant future.

Donald Trump is the paradigmatic person the persons responsible for Section Three of the Fourteenth Amendment would have disqualified for engaging in an insurrection.  Trump, the evidence indicates, instigated the attack on Congress.  At a minimum, he inflamed an angry mob and then refused to use his powers to protect Representatives and Senators.  A case might be made that Trump’s behavior is protected by contemporary First Amendment doctrine, although most free speech experts think otherwise.  No reasonable case can be made that prominent Republicans in 1866 would have thought Trump’s words and actions constitutionally protected.

Those who oppose disqualification champion an alternative means for determining what engaging in an insurrection meant in the nineteenth century.  Rather than engaging with John Marshall, Joseph Story, Benjamin Curtis, other judges of the time, and the legal literature, they prefer the method of deep contemplation.  On the assumption that the framers thought long and hard about insurrections, Ross Douthat, Steven Calabresi and others, have apparently concluded that if they think long and hard about insurrections, their thoughts will mirror those of Reconstruction Republicans.

That mirror is cracked.  Several contemporary commentators, for example, deduce from the frequent tendency of nineteenth century legal commentators to speak of “insurrections or rebellions,” that “insurrection” and “rebellion” must have had the same or similar meaning.  A review of such queries as “soup or salad” or “plastic or paper” might have disabused them of this notion, but maybe they prefer to eat in or have others do their shopping.  To be fair, “insurrection” and “rebellion” were treated as synonymous by an Alabama opinion in 1837.  Nevertheless, the far more common view distinguished a “rebellion” from “a mere insurrection.” Cases and commentators described vital gradations between rebellions and insurrections or between insurrections.  The Supreme Court of the United States in The Amy Warwick (1863) described the Civil War as “no loose, unorganized insurrection, having no defined boundary or possession.” Numerous state cases quoted or paraphrased this passage when distinguished full scale rebellions from more local insurrections. Senator Willard Saulsbury of Delaware maintained that an “insurrection is . . . the act of unorganized individuals” as opposed to rebellions which required “States or organized political communities.”

Close your eyes, think deep thoughts, delete any reference to nineteenth century matters on your computer and you might imagine, as some commentators have, that an insurrection has to be of a certain duration, a certain scope, have a certain probability of success, and more generally resemble the Civil War.  All this is reasonable.  The only problem is history.  The common/constitutional law of insurrection and treason, as noted above, had no duration, scope, or probability of success requirements.  Judge Kane in Hanway v. United States stated, “the quantum of the force employed neither lessens nor increases the crime, whether by one hundred or one thousand persons is wholly immaterial.”  “[I]t is altogether immaterial,” he continued, “whether the force used is sufficient to effectuate the object; any force connected with the intention, will constitute the crime of ‘levying war.’  Nineteenth century jurists did not measure an insurrection by the probability of victory.  Justice Stephen Field’s charge in Greathouse v. United States asserted, “[i]t is not essential to constitute the giving of aid and comfort that the enterprise commenced should be successful and actually render assistance.”

Another ahistorical move is the claim that the Constitution distinguishes between inciting an insurrection and engaging in an insurrection.  The basis of this claim is Section Two of the Second Confiscation Act, which punishes those who “incite, set on foot, assist, or engage” in an insurrection.  Close your eyes, burn all copies of the Congressional Globe, and you might imagine this section states four separate offenses, all of which differ from treason, which is punished in Section One of the Second Confiscation Act.  Substitute history for imagination and a different interpretation emerges.  Republicans during the debate over Section Two explicitly stated that the provision does not set out four separate offenses, each of which is different from the treason punished in Section One.  Senators verbally agreed with Jacob Howard of Michigan when he declared that there is "no distinction between inciting a rebellion or insurrection, setting on foot a rebellion or insurrection, assisting in a rebellion or insurrection, or engaging in a rebellion or insurrection."  The sponsors of Section Two agreed that each of these offenses was treason, which was also punished by Section One.  The point of Section Two and related provisions in the Second Confiscation Act was to enable juries to convict persons of insurrection without mandating the death penalty and forestall any judicial attempt to narrow the accepted definition of insurrection.  This is why Republicans provided the same punishments for persons who incite, set on foot, assist, or engage in insurrections and disqualified all such persons from holding office. (Has anyone noted that if "engaged in insurrection" in Section Two of the Second Confiscation Act differs from "treason" in Section One, then Robert E. Lee could claim that he was not disqualified under Section Three of the Fourteenth Amendment because he was a traitor and not an insurrectionist.)

Constitutional analysis that begins with how Reconstruction Republicans thought about insurrection need not end with nineteenth century thinking.  That the persons responsible for Section Three of the Fourteenth Amendment thought persons who violently resisted for principled reasons the parking laws in Washington, D.C., sold shoes to Confederate soldiers, and wished Jefferson Davis a happy birthday (I’m not making this up) were traitors does not compel contemporary citizens of the United States to reach the same conclusion.  We might limit insurrections to more consequential laws, insist on more consequential participation, and demand far greater protection for free speech.  When we do so, however, we should acknowledge that we are interpreting the words of Section Three in light of contemporary values and make no pretense that we are channeling the original meaning of the Fourteenth Amendment.  And we should take very seriously the possibility that even on a revised understanding of insurrection rooted in contemporary values a powerful case is being made that persons who incite a mob to prevent by violence the peaceful transition of presidential power ought not be eligible to exercise official power in the United States.