My
response:
Your proposed definition of “insurrection” is certainly one possibility. But I wonder if your proposed definition is overbroad?
Under
your proposed definition of “insurrection,” in relation to the events involving the American Civil War and Ex parte Merryman in 1861, would not President Lincoln, Generals Winfield Scott, William Keim, and George Cadwalader, Colonels R.M. Lee and Samuel Yohe, and Lieutenant William Abel—all be guilty of insurrection—for preventing
the federal courts from hearing habeas corpus applications? And from granting them? See Ex
parte Merryman,
17 F. Cas. 144 (1861) (No. 9487) (Taney, C.J., in chambers), <https://tinyurl.com/ms6x7fnd>.
Under
your proposed definition, if protesters in a U.S. Senate bathroom block,
frustrate, or impede a senator from attending a floor vote, is that an insurrection?
Under
your proposed definition, if protesters surround a federal courthouse and
impede judges, other courthouse functionaries, and employees, litigants, and other members
of the public from ingress and egress, is that an insurrection? Does it matter
if some launch pyrotechnics against the building?
Under your proposed definition, if state judges and other court officers
establish and put into effect a policy of secreting witnesses and aiding their leaving the state courthouse in order to frustrate their capture
by federal immigration officers’ seeking to enforce federal law … is that an
insurrection?
I
think under your proposed definition, all the defendants in each of my four “hypotheticals”
would be in real danger of conviction for insurrection. That’s why I think your definition may be overbroad.
If
all that stands in the way of liability in each of these four situations is
whether the expressive or political content of the defendants’ actions is
valued by the prosecutor, then your definition is problematic. Indeed, each of my “hypotheticals” is based on real-world events. But I do not think any actual prosecutors, state or federal, sought to try any of the real-world defendants for insurrection or anything like insurrection.
You
might be better off (using the yardstick of customary rule-of-law norms) with
more politically neutral theories of liability: trespass, trespass to chattel, conversion,
theft, etc.
On
the other hand, if the entire reason one is seeking a conviction for insurrection
is to bring about a political disability, then the downside is that the
prosecutor will put in motion a series of political and politicized
proscriptions and counter-proscriptions. Something like Rome during and after the Second
Triumvirate. See generally Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347 (2010); Seth
Barrett Tillman, Interpreting Precise Constitutional Text:
The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal
& Disqualification Clause, and the Religious Test Clause–A Response to Professor
Josh Chafetz’s Impeachment
& Assassination, 61 Clev. St. L. Rev. 285 (2013).
Now,
going back to your definition ... I understand the position that the January-6th defendants were “a large group of persons whose purpose [was] to prevent the
execution of the law.” But I don’t clearly understand what you mean by an “uprising
against the authority of the government.” What precisely do these words mean?
What does it mean to participate in an uprising against the “authority of the
government,” as opposed to an uprising against the “government” itself?
I
also have doubts that inchoate insurrection-related crimes (eg, attempt,
conspiracy, solicitation), as opposed to insurrection itself, fall under the
aegis of Section 3 of the Fourteenth Amendment. Is it sensible in regard to political disabilities to move
beyond what the plain text permits?
I am
so old I remember ... when progressives objected to temporary political
disabilities imposed for felonious conduct after conviction in due course of
law before a judge with life tenure and a unanimous jury based on evidence proving every element of a criminal offense beyond a reasonable doubt. Yet now,
some think it proper to impose permanent political disabilities based on
determinations by judges (including even administrative law judges lacking life tenure), absent juries, merely using the ‘more-likely-than-not’ civil standard.
Under these conditions, I think the proscriptions and counter-proscriptions of
the Second Triumvirate are about the best we can hope for.
Seth Barrett Tillman, ‘A Twitter Exchange on “Insurrection,”’ New Reform Club (Jan. 3, 2023, 6:07 AM), <https://reformclub.blogspot.com/2023/01/an-exchange-on-insurrection.html>;
Twitter: <https://twitter.com/SethBTillman/status/1610232869498281984>;