Mark Graber, University of Maryland Francis King Carey School of Law, has posted Section Three of the Fourteenth Amendment: Insurrection, which is forthcoming in the William & Mary Bill of Rights Journal:
The public and scholarly debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. One consequence of this omission in the popular press is the impression that what constituted an insurrection or engaging in an insurrection were not well defined in 1866, that the Reconstruction Republican framers largely jerry-rigged a vague understanding of insurrection into the Constitution.--Dan Ernst
This paper demonstrates that the constitutional/common law of insurrection was well established and well-understood in 1866. “Insurrection” at the time Section Three of the Fourteenth Amendment was framed and ratified “had a precise and well-understood meaning.” This understanding was articulated from the American Revolution to the Reconstruction by the Supreme Court, by Supreme Court justices riding circuit, by other federal justices, by state court justices, and by the leading legal treatise writers during the period between the ratification of the Constitution and Reconstruction. Clear standards exist from 1866 that enable state and federal officials to determine whether the persons responsible for Section Three of the Fourteenth Amendment would have thought the events of January 6. 2021 were an insurrection and whether Trump engaged in that insurrection.
The Congressional Globe, case survey, and constitutional commentaries clearly support the following conclusions. First, an insurrection at the time Section Three was framed consisted of an assemblage resisting the implementation of any law by force, violence and intimidation for a public purpose and was not limited to rebellious attempts to overthrow the government. Second, the events of January 6, 2021 are consistent with the legal understanding of insurrection in 1866. Third, constitutional authorities before, during and immediately after the Civil War maintained that any person who knowingly contributed to an insurrection was engaged in that insurrection, even if that person did not personally commit an act of violence or was far from the scene of the violence, force, and intimidation. Fourth, if the allegations made by the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol and state decisions disqualifying Trump are true, the former president participated in the insurrection that took place on January 6, 2021.
Congress relied on this consensual understanding of insurrection when framing the Second Confiscation Act of 1862. The Senators who insisted that Section Two of that measure punish persons who “shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States” stated that they were not altering the law of treason and insurrection by describing separate offenses. Section Two was rooted in part by a misinterpretation of judicial decisions that some Senators believed required they spell out what they believed constituted insurrectionary behavior and in part because no one wanted all participants in the Civil War to be executed for treason. If members of the Thirty-Seven Congress would have thought that an insurrection took place on January 6, 2021 and Trump participated in that insurrection, then those members of the Thirty-Ninth Congress who framed Section would have though disqualified from holding public office in the United States.
