Of Insurrections and Republics
Considering the plausible constitutional theory behind Sec. 3 of the 14th Amend., as well as wrestling with whether January 6th was an insurrection & if Donald Trump offered aid & comfort to the same.
Last year, when I first became aware of the discussion over whether Section 3 of the 14th Amendment could bar Donald Trump from running for office again, I read over the language in question and my initial gut reaction was 1) a fair reading of the text definitely could bar Trump from future office and 2) it’s too late in the game to use this mechanism and I’ll be surprised if this is anything more than an interesting but cursory academic debate.
On the second point, I was clearly wrong. This question has become a major constitutional question. Multiple states are experiencing serious efforts to remove Trump from the ballot. Two states, Colorado and Maine, have already made decisions to do so. The question is now before the Supreme Court, which will soon decide a monumental case on an original question (meaning that there is no direct precedent for the court to consider).
As for the first point, however, my instincts remain the same. This, despite a chorus of dissent to the contrary, much of it from scholars, attorneys, and political figures that I greatly admire and respect (chief among them being Yuval Levin). This has, admittedly, given me pause. I spent a lot of the Christmas and New Year’s holidays quietly pondering why I had reached such a different conclusion than so many respectable thinkers. Usually, when the chorus of interpretation from so many of those whose opinions I value reaches this kind of a crescendo in opposition to my own instincts, I would choose to sit one out. And that was nearly my decision, but it just didn’t sit right with me.
So, I seriously tried to consider why I feel the way I do. I made the easy confessions first: I’m a natural contrarian, I love being counter-narrative, and I enjoy paradigm shifts—I’m a gadfly. That might at least explain my natural disposition on the issue. But it doesn’t explain why the more and more I study this issue, the more I’ve been inclined to stick with my guns. There had to be more than simply my contrarian nature that places me in such stark opposition to people I consider as well-learned, well-read, and very knowledgeable.
And so, I embarked on a serious inquiry into this issue, initially simply to understand my own disposition on the question. But now, I feel it appropriate to present my thoughts as an extended treatment on the issue.
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Part 1 - Sovereignty and Constitutional Theory
Like most of the American founders, I strongly distrust pure democracy. As John Adams once wrote, “Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide. It is in vain to Say that Democracy is less vain, less proud, less selfish, less ambitious or less avaricious than Aristocracy or Monarchy.”
I view democracy from a very utilitarian perspective, in that democratic processes are indispensable to a functioning constitutional republic but no more indispensable, and arguably less indispensable, than other aspects of republicanism, such as meritocracy, the rule of law, liberty, etc. I’m, therefore, less inclined to herald democracy as a principle or ideal, one that holds value and virtue in and of itself. As the quote from Adams suggests, every majoritarian democracy in history has ended in tyranny. In such attempts, the unvarnished will of the people inevitably empowered demagogues who played off the anxieties of the people toward achieving unchecked power. That’s why the American founders crafted a republic, one with checks and balances upon every exercise of power, including the voice of the people.
We often think of constitutions as limits on governing power and protections for the rights of the people. And they are that. But in the broader context of constitutional theory, the function of a constitution extends to purposes conducive to wrestling with the realities of human nature. Consider that, in any form of representative government, a limit placed on governing authority is a limit placed on the majoritarian will of the people and that protections for rights and liberties are, once again, limits placed on what a political majority can do to a political minority. A constitution is nothing more and nothing less than a circumscription of power—all avenues and repositories of power, including the people themselves.
Clearly, the purpose of a constitution’s circumscription of power is not to enable the unvarnished voice of the people. The very idea of limited governance is counter to the idea of democracy as an unadulterated good. To the contrary, the basic theory of constitutional governance recognizes pure democracy as one of the great evils to be avoided and democratic processes as, to at least a certain extent, a necessary evil. Constitutional theory, then, is not dedicated to establishing democracy as its ultimate aim but utilizes democratic processes as an ingredient toward the ultimate aim of establishing and preserving the sovereignty of a people.
What is the sovereignty of a people? That can prove to be a complicated question to answer. But the easiest and most straightforward way to understand popular sovereignty is Abraham Lincoln’s conception of a government “of the people, by the people, for the people.” Under the concept of popular sovereignty, the people, as a whole and not simply a majority of the people, are the reservoir of ultimate and supreme power in society. The authority of any form of government under such a scheme derives from the consent of the governed (by the people), and its legitimacy is maintained through representation (of the people) whose responsibility is to provide for the common good (for the people).
While democratic processes help provide a framework that assures government of the people and by the people to a reasonable degree, history has demonstrated that democracy is ill-suited to provide the common good for all people in a society. The unavoidable development of factions, the inevitable spirit of party, and the inescapable shortfalls of majority rule all guarantee that the effects of pure democracy cannot ever be conducive toward the common good. There must be auxiliary precautions enshrined in a political compact, a constitution, that checks and balances majoritarian power if the common good of the people can even become a possibility. Further, even government of the people and by the people is impossible through majoritarian democracy, because, once again, we’re talking about all of the people, not simply government by whichever faction or interest can cobble together a 50+1 majority.
Sovereignty, not democracy, is the ultimate aim of constitutional governance, and sovereignty, as I’ve demonstrated above, is aided by democratic processes but only secured through a strong and well-constituted form of limited government. The sovereignty of a people relies upon a constitution that is maintained as the supreme law of the land and effectively checks and balances the exercise of all power, especially the power of majorities. And this is my crucial point: the sovereignty of a people is assaulted, rather than preserved, if the provisions of a constitution are discarded or defenestrated in the name of democracy.
In America, specifically, the ultimate will of the people is reflected in the provisions of the US Constitution, not directly through the results of elections. As Alexander Hamilton explains in Federalist 78, “Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
The Constitution reflects more than simply a majority of the people; it reflects the ultimate will of the people as evidenced through the deliberation and agreement of a supermajority of the people’s representatives and the consent of a supermajority of the people in the states. Even more than this, the US Constitution reflects a clear accounting of human nature, natural rights, and natural law. The US Constitution is sacred, inasmuch as any political good or institution can be sacred, because it is not only a result of the will of the people but because it holds fidelity to self-evident truths.
I say all of this to lay the foundation of my opening perspective in considering the debate about Section 3 of the 14th Amendment. I am completely and wholly unmoved by the arguments against enforcing Constitutional provisions that say, “Well, shouldn’t the people decide?” Based on my understanding of constitutional theory, the people have already decided through a process that should carry much more weight than any given election. To allow reverence for democracy to thwart fidelity to the Constitution would be a far greater crime against the sovereignty of the people than removing one out of 340 million possible options for political office.
The reality of constitutional governance is that where the Constitution is silent, elections hold considerable consequence in the halls of government. But where the Constitution has spoken, elections hold no immediate consequence whatsoever. No mere election decides whether the freedoms of religion, speech, the press, or assembly can be abridged. No mere election decides whether the right to bear arms can be infringed. No mere election can eliminate due process or the equal protection of the laws. No mere election stands equal in stature to the Constitution, the ultimate will of the people.
But it’s easy to consider the primacy of rights over simple majoritarian decisions at the polls. It’s much harder to consider the limits placed directly upon majoritarian decisions. Because of Constitutional primacy, it doesn’t matter if a majority of the people want to elect a 30-year-old to be President. They don’t get to. It doesn’t matter if a majority of the people want to elect someone born in another country. They don’t get to. It doesn’t matter if a majority of the people are content to elect someone who has engaged in or given aid to insurrection and rebellion. They don’t get to. To assert otherwise would be to thwart the very foundation of constitutional governance: that the tyranny of demokratia is rejected in favor of the freedom of res publica, that free society is secured by erecting a government of laws and not men.
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Part 2 - Dismissing the Chaff
It should be noticed that thus far, I have not dealt at all with the real questions at hand: whether January 6th was an insurrection and whether Donald Trump supported or gave aid to what happened on January 6th. In Part 1, I only dealt with the most salient issue under consideration by the court of popular opinion. The reason I began this essay with a semi-lengthy discussion of constitutional theory was to establish the efficacy of the questions at hand.
Under the American constitutional order, the question is what the provisions of the US Constitution say, not whether such provisions “subvert democracy.” If we don’t like certain provisions as currently constituted, we should change them. We don’t get to question them or their applicability after the fact. The lack of the necessary supermajorities to amend the Constitution is a continuous ratification of its currently established provisions.
Section 3 of the 14th Amendment is part of America’s supreme law and is as immutable as all other provisions. We must interpret and apply it as we would any other portions of the document. When it comes to constitutional law, we don’t get to pick favorites, no matter how inconvenient or even “stupid” the consequence of the provision.
The questions at hand are not whether Section 3 subverts democracy nor what the consequences of applying it might be. The questions are nothing more and nothing less than 1) Was the storming of the Capitol on January 6th an insurrection, and 2) Did Donald Trump engage in or give aid to what occurred?
But before I consider these questions, let me first dismiss some of the legal chaff on both sides of the inquiry.
I am not persuaded at all by the argument that the President is not an officer under the United States. It betrays all reason that the framers of the 14th Amendment would have barred insurrectionists and rebels from holding virtually every office at all levels of government but the Presidency. The arguments to the contrary come off as extreme stretches of legalese that would carve out a serious and unreasonable loophole to Section 3. The legal gymnastics utilized to carve out the argument that the President is not an officer under the United States seem highly unlikely to have been the view of those who wrote the 14th Amendment. It’s simply not a reasonable and fair reading of the text.
Similarly, I’m greatly unpersuaded by attempts, often included in the same argument addressed above, to claim a specific requirement of the phrase “support the Constitution” in an oath of office for Section 3 to apply. The US Constitution establishes no specific wording for most oaths under federal office, and states and local governments are free to establish the wording for oaths of office as they choose. This would, again, carve out an unreasonable and easily utilized loophole to Section 3.
On the other side of the argument, I’m disinclined to accept the argument that Trump incited what occurred on Jan. 6 as grounds to establish aid and comfort toward the political violence of that day. I concede that his words and actions leading up to January 6th and the speech delivered that day can help to establish the purpose of the gathering and aid us in considering whether what ensued was an insurrection. But a sole reliance upon those elements to argue that Trump purposefully launched an insurrection is unpersuasive and provides a weak argument for the dramatic use of Section 3 to remove a candidate from consideration of the people. It would be a terrible precedent to hold politicians accountable for political violence by wielding Section 3 against them because they used aggressively figurative rhetoric common to political and campaign speech that some of their followers took literally.
All three of the above arguments, which I categorize as very poor, seem to ignore the clear purpose behind Section 3 of the 14th Amendment: to ensure that those who take an oath to the Constitution actually hold fidelity to the Constitution.
Speaking to the first two arguments, the idea is that if a candidate for any given office under the Constitution has demonstrated contempt for the Constitution, for the rule of law, then they can never be trusted to hold to their oath once having assumed office again. It would be grossly unreasonable and contrary to the original intent of Section 3 if its enforcement depended upon fine print legalese interpretations rather than a clear-minded consideration of the proper questions of the provision: did insurrection or rebellion occur, and did the subject engage in or aid said insurrection and rebellion.
And speaking to the third argument, it would exceed the bounds of the purpose of Section 3 to wield its power toward addressing inflammatory and even irresponsible speech that falls short of the fighting words doctrine previously established by the courts as the line beyond which speech must extend to lose protection under the 1st Amendment.
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Part 3 - Validating the Constitution
The two most difficult considerations in applying Section 3 of the 14th Amendment are that no clear definitions are given in the text for the term insurrection nor for what constitutes aid and comfort. This plunges us into a difficult quandary, as Section 3 affords a dramatic exercise of power through the removal of a political candidate from electoral consideration predicated upon seemingly subjective definitional consideration and whether certain words and actions fall into those definitions.
Specifically on the question of Trump, if we adopt a definition of insurrection as an armed effort to overthrow the government, the entire question is moot. If we adopt as a definition of aid and comfort the direct planning, coordination, or participation in an insurrection, the question is also moot. The reality is that there are some definitions of insurrection as well as aid and comfort that preclude the use of Section 3 against Donald Trump. Based on this fact alone, it might seem reasonable to shelve the use of Section 3 in its present consideration predicated upon the notion that its use in any but the most clear circumstances is unduly disruptive of democratic processes. And I won’t pretend this is not a persuasive argument. However, alluding to Part 1, my main concern in any constitutional question is first to validate the Constitution.
With every constitutional question, a precedent is set. This is unavoidable. The quandary is not whether a precedent will be created but whether it will be a good or bad precedent. For me, the difference between a good and bad precedent predominantly rests upon whether the provisions of the Constitution under consideration were strengthened, according to their original intent and fair reading of the text, or whether they were gutted of future applicability, efficacy, and utility. Does a judgment validate or invalidate the Constitution?
Based upon this question of validation, I think there should be a great deal of caution in utilizing overly strict interpretations of the Constitution because there is a very real risk of loopholing a Constitutional provision into invalidation. Justice Scalia, for example, once warned that strict interpretations “limit one to the hyperliteral meaning of each word of the text” as opposed to a consideration of “the full body of a text [that often] contains implications that can alter the literal meaning of individual words.” Rather than strict or loose interpretations, Scalia advocated for “fair-reading textualism.” In other words, the text of a constitutional provision should not be limited to a strict definition unless the provision itself establishes such a requirement. Absent such specificity, a provision should be read neither strictly nor loosely but fairly.
The purpose of fair-reading textualism is, once again, to ensure the Constitution is validated rather than invalidated, to ensure the original intent of a provision is not impugned, subverted, or weathered down to nothing over time. Specific to Section 3, the question cannot be whether some definitions of insurrection have more definitional points than others or whether some understandings of aid and comfort have higher grounds than others. If it were, we would risk unreasonably precluding troubling actions and words that could fall within the realm of the purpose of the provision. We risk invalidating the strength and purpose of Section 3.
Part 4 - Insurrection and Demagoguery
So, what might be the purpose of Section 3 of the 14th Amendment? Its clearest purpose was to ensure participants in the Confederate rebellion were barred from holding office after having waged war upon the United States. So, does its purpose stop there? Is Section 3 a relic of history with no modern efficacy or force? Again, let us remember the importance of applying a fair reading of the text rather than a strict reading if a strict reading is uncalled for.
To conclude the phrase “insurrection or rebellion” in Section 3 refers only to the rise of the Confederacy would be to breathe specific interpretation into the provision that the text does not call for. It would unduly limit the efficacy and force of the provision to the extent of gutting it entirely based upon an arbitrary interpretation of the text. Such a conclusion does not validate the Constitution. It would invalidate one of its provisions entirely. This would be no different than concluding that the 1st Amendment protects only printing presses or that the 2nd Amendment protects only muskets. Section 3 of the 14th Amendment remains in force, as do all the provisions of the Constitution. The only legitimate way to relegate a provision of the Constitution to the dustbin of history is to amend the Constitution.
So, if the purpose of Section 3 cannot be limited to addressing the Confederacy, what purpose can we assume exists by establishing a preclusion from seeking political office for those who have engaged in or offered aid and comfort to an insurrection or a rebellion? For what cause, according to constitutional theory, might it be desirable for a constitution to take some political questions out of the hands of majoritarian elections?
One answer I would offer for specifically precluding insurrectionists and rebels from holding office is to further reinforce the provisions of the Constitution that seek to thwart the rise and influence of demagogues in the American Republic. George Washington once wrote to Lafayette of his fear that “anarchy and confusion” provided fertile ground for the rise of “some aspiring demagogue who will not consult the interest of his Country so much as his own ambitious views.” And again, from Alexander Hamilton, “that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”
What greater source of anarchy and confusion is there than insurrection and rebellion? What more ultimate demagogue is there than one who would foment insurrection and rebellion in disruption of a free society? If the founders feared a demagogue who might seek to rise to power upon the waves of fear and anxiety, how much more might they fear an insurrectionary demagogue who has become so drunk on the desire to gain and hold power that he challenges the rule of law when his power is checked, limited, or taken from him. Such a man threatens the lives and liberty of his countrymen in the name of counter-constitutional motives.
While the 14th Amendment was enacted nearly a century after the ratification of the Constitution, its Section 3 provision is clearly within the purview of constitution theory embraced by the original founders.
In light of a broad consideration of history, one of the utilities of Section 3 seems obvious: a constitutional system of government cannot be maintained if it can be helmed by those who have demonstrated absolute infidelity to the rule of law.
And even beyond this, there is the question of incentives. Constitutionalism is really nothing more and nothing less than the establishment of an incentive structure for imperfect men to behave according to a set of norms and values. As James Madison reminds us, “Enlightened statesmen will not always be at the helm.” And as he says elsewhere, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” We cannot rely upon virtue to always be present in the halls of government, and constitutionalism provides the incentives necessary to encourage unvirtuous men to govern in minimally virtuous ways in order to have access to power.
This understanding helps us to consider another utility of Section 3: a warning to those holding political office that the ultimate violation of their oaths is an ultimate surrender of future access to political power.
So, if Section 3 remains in force, if a fair reading suggests its provisions extend beyond the Civil War, and if we can understand the theory behind why Section 3 might have utility in the keeping of a free republic, then we are, once again, forced to return to the chief questions at hand: how should we define insurrection, and how are we to construe aid and comfort?
Part 5 - Defining Insurrection
Given that we don’t have a clearly stated definition of insurrection within the text, we must ascertain how to interpret its meaning according to a fair reading. The first step, then, might be to establish what it clearly is not.
There are many forms of political violence and subversive activity. The most egregious forms involve either clear intent to overthrow a system of government or waging war against the same. We can put such things as treason and rebellion in this highest category. Insurrection seems less than these things.
Treason was already established as a punishable offense under the Constitution before the 14th Amendment was written, and its consequences are criminal, whereas the consequences established for insurrection by Section 3 are merely civil. Section 3 would serve no purpose or function if it is redundant in addressing an act already addressed with more teeth by the Constitution. It is reasonable to conclude that insurrection is not treason and constitutes a lesser act of subversion.
Rebellion is mentioned alongside insurrection, suggesting it is a distinct and different form of political violence or subversion. Some definitions of rebellion share similarities with some definitions of insurrection, suggesting the use of close synonyms in a turn of phrase rather than the establishment of two distinct activities. But, since the connective word is “or” rather than “and,” this suggestion is less persuasive.
A fair reading of Section 3 forces us to consider the two terms as separate terms with separate meanings. So, which is worse? Both terms suggest some form of violent uprising, but we tend to use the term rebellion for massive uprisings that seek to overthrow a system of government, whereas the term insurrection is often applied to smaller, more localized uprisings of smaller scope and more limited goals. For example, history speaks of Shay’s Rebellion and the Whiskey Rebellion, whereas John Brown is spoken of as the leader of a slave insurrection. It is reasonable, then, to conclude that insurrection is not rebellion and constitutes a somewhat lesser act of subversion.
Less egregious forms of political violence and subversive activity involve unlawful demonstration and spontaneous violence. We can put such things as riots and mobs in this lower category. Insurrection seems like more than these things.
A riot suggests something that’s gotten out of hand, a period of violence and unlawful activity engaged in by a crowd of people who’ve been worked up into a frenzy of frustration. A riot has no clear purpose or direction beyond demonstrating an agitation over any given issue that’s led to violence and lashing out against authority. A fair consideration of the meaning of insurrection suggests that it is a far different thing than a riot, involving more direction, clearer aims, and further consequences than random violence.
A mob suggests something of more direction than a riot, but still constituting mostly random acts of violence in the name of demonstrating toward some lesser political goal. A mob can be thought of as a riot with more focus but still far less focus than a rebellion or an insurrection.
So, if we can conclude that insurrection is less than the most egregious forms of political violence and subversive activity in that it does not rise to the level of treason and rebellion, and if we can conclude that insurrection is far more than the lesser forms of political violence such as riots and mobs constituting unlawful demonstration and spontaneous violence, then we must consider a middle form in which insurrection properly belongs and consider what might constitute the principle aspects of such a form.
If we cast about for forms of political violence and subversive activity that constitute more than unlawful and spontaneous violence but fall short of an intent to overthrow a system of government, the closest terms we can add along with insurrection are terrorism and insurgency.
Terrorism, as the name suggests, is composed of violent activities meant to terrorize a community, a nation, or the international order into adopting certain cultural behaviors or enacting certain political policies. Terrorism is usually organized and has clear motives, but those motives fall short of overthrowing systems of government and instead seek to influence established systems. There is also a wide scope of terrorist activities. Acts of terrorism can be as big as the World Trade Center attacks or the Madrid train bombings or as small as individual torture in Afghanistan for violating religious dictates or organized crime roughing up local businesses for refusing to pay protection money.
An insurgency is, in some senses, a limited rebellion, sharing many similarities to terrorism but whose violence is directed toward harrying the forces and governance of an established system rather than terrorizing the civilian population. While insurgencies can grow to full rebellions, they usually begin with smaller aims and goals such as gaining more autonomy for a region within a political system or demanding the end or enactment of certain political policies.
Both terrorism and insurgency share the predominant feature of challenging the rule of law in order to obtain political and cultural outcomes through violence, a subversion of the political process but not necessarily a subversion of a political system. This, then, is the key aspect of this middle form of political violence and subversive activity: challenging the rule of law and subverting political processes.
We can thus conclude in our thought experiment that an insurrection is political violence of a middle form involving a challenge to the rule of law and a subversion of the political process distinct from terrorism and insurgency. It is more organized and has more directed aims than a riot or a mob. It falls short of treason and rebellion in that it does not seek the subversion of the political system. Therefore, a fair reading of Section 3 should define insurrection as a small or localized uprising of citizens engaging in political violence for the purpose of challenging the rule of law and subverting the political process. Such a definition falls well within the majority of most historical and contemporary definitions and understandings of insurrection.
But before we can compare this definition with what happened on Jan. 6, there is one more thing to consider. There are many definitions of insurrection that include the aspect of the perpetrators being armed. Because of this, there are many observers who assert this is an essential characteristic of insurrection and that this places Jan. 6 beyond consideration of being classified as an insurrection. Thus, we are faced with two more possibly important questions: is the aspect of some definitions of insurrection that it is an armed uprising an essential characteristic, and if it is, what constitutes being armed?
To the first question, I would assert that being armed is a secondary characteristic of insurrection rather than an essential characteristic. Most of the forms of political violence and subversive activity we have considered are chiefly defined by characteristics relative to premeditation, organization, and motive. To allow an occurrence of political violence to escape certain definitions that match the characteristics of premeditation, organization, and motive because they defy typical means would be to “strain at a gnat, and swallow a camel.”
Take rebellion and terrorism, for example. The essential aspect of a rebellion is the subversion or attempted subversion of a system of government. The essential aspect of terrorism is the utilization of political violence toward terrorizing society into acquiescing to cultural or political demands. Does the essence of either rebellion or terrorism change depending on the means utilized to accomplish this goal? Further, did the concept of rebellion and terrorism not come into existence until the first human picked up a stick to wield as a weapon? If an ancient tribe’s chief is overthrown by a rival choking him to death as he sleeps, is that not a rebellion? If the new chief maintains his authority by constantly beating and kicking the members of his tribe, is that not terrorism?
It pays to remember that words represent concepts, and definitions are attempted explanations of that concept. If we strain at gnats and focus on the fine points of any given definition, we risk swallowing a camel and losing sight of the very concept we are considering.
So, is the concept of insurrection found in the fine points of some definitions, or is it found in the essential aspects present in all definitions? The reasonable answer is clearly the latter. The essential aspects of an insurrection are, as we’ve discussed, a 1) small or localized uprising of citizens engaging in 2) political violence for the purpose of 3) challenging the rule of law and subverting the political process.
But, for argument’s sake, let’s say we’re going to assume the narrow definition of insurrection predicated upon it being armed. Armed with what? What constitutes arms? Must it be firearms? Do we not speak of arming one’s self with a sword, a knife, a club? Is a required aspect of an insurrection being armed really that difficult of a bar to meet? As soon as someone takes up and utilizes any object that can be wielded as a weapon, they have armed themselves. An armament is “any implement or device that is used to deter, threaten, inflict physical damage, harm, or kill.”
An armed insurrection, then, is not only one in which the perpetrators have armed themselves with firearms but one in which they have armed themselves with any form of weapon. We in America often forget that most forms of political violence across the world cannot begin with firearms because few people in the world have the free access to firearms we have. Across history, most rebellions and insurrections have begun with improvised weapons until formal weaponry, swords, spears, firearms, etc., can be seized from the government and utilized to further the uprising.
Part 6 - Defining Aid and Comfort
When it comes to political violence, there are three kinds of people: organizers, facilitators, and direct participants. It is the first two that are more likely to run for political office, which is likely why the framers of the 14th Amendment made sure to include “aid and comfort” to insurrection or rebellion in the wording of the provision. The provision thus written covers far more than the direct participants of an insurrection.
But like our previous discussion of insurrection, we are again faced with a definitional quandary. Absent clear direction from the provisions of Section 3, how are we to define aid and comfort? Broadly speaking, it is anything that aids the preparation, commencement, or perpetuation of an instance of insurrection or rebellion.
Notice I did not say incitement. While in many countries, incitement might be reasonable to include in the definition of offering aid and comfort, in America, we have broad free speech protections that make charges of incitement difficult to assert. As I mentioned back in Part 2, aggressively figurative rhetoric is quite common in political rhetoric, and construing such rhetoric literally, even when political violence follows their utterance, would be a dangerous precedent to establish.
We are left, then, with the aspects of preparation, commencement, or perpetuation. And these aspects can be quite reasonably laid out: anyone who helps prepare for an insurrection, anyone who helps to begin an insurrection, and anyone who helps an insurrection to perpetuate has engaged in aiding and abetting the insurrection.
The idea of preparation and commencement seems clear enough, but what about perpetuation? In the context of Section 3, I would assert that perpetuation constitutes a wanton failure to exercise powers pursuant to an oath of office that, if exercised, would have avoided or ended the insurrection or rebellion.
A plausible hypothetical that can aid in understanding this perpetuation aspect would be to consider a likely scenario in the early days of the Civil War. Imagine that a southern regiment of the United States Army is defecting to the Confederate Army and, without direct orders from their superior officer, begins attacking a local Union weapons depot to obtain arms and powder before joining the bulk of Confederate forces. The commander of the regiment is made aware of the attack but fails to make any effort to halt it, as he himself is also considering a commission in the Confederate army. That man, having taken an oath as an officer in the United States Army, would have offered aid and comfort to an insurrection by refusing to exercise his authority in an attempt to stop the instance of insurrection.
Part 7 - Donald Trump and January 6th
So, how do we put all of this together in order to ascertain what happened on January 6th and what Donald Trump’s level of culpability is in what went down at the Capitol?
Based on what we’ve considered in this essay, we’ve determined the following things:
In a constitutional republic, we should not hold democratic processes as more sacred than constitutional provisions. The sovereignty of the people is paramount and reflected far more in the established provisions of the Constitution than in the singular outcome of any given election.
We should read and interpret constitutional provisions neither strictly nor loosely but fairly.
We should read and interpret constitutional provisions in a manner that validates their original purpose and maintains their efficacy and force.
Section 3 cannot be limited to only applying to the Confederate rebellion by a fair reading of its text.
The constitutional utility of Section 3 is that it a) assures the American Republic is not helmed by demagogues who’ve demonstrated absolute infidelity to the rule of law and b) serves as a warning to those holding political office that the ultimate violation of their oaths is an ultimate surrender of future access to political power.
The Presidency falls under the authority of Section 3.
The President’s oath is an oath to support the Constitution.
The charge of incitement must be clear and indisputable to be considered having given aid and comfort to an insurrection.
A fair reading of Section 3 forces us to consider insurrection and rebellion as separate terms with distinct meanings.
A fair and reasonable definition of an insurrection is a small or localized uprising of citizens engaging in political violence for the purpose of challenging the rule of law and subverting the political process.
To be an insurrection, an instance of political violence must only meet the essential aspects of the concept of insurrection. An insurrection is defined by its aspects of premeditation, organization, and motive, and its means (i.e., armed or unarmed) cannot reasonably establish a separate concept.
Even if we confess a requirement of armed political violence for the occurrence of insurrection, the concept of being armed is not a high hurdle to clear, as it is not limited specifically to firearms or even formal weaponry. The wielding of any object as a weapon makes an individual an armed individual.
Giving aid and comfort to an insurrection can be reasonably defined as aiding in its preparation, commencement, or perpetuation.
Failing to exercise power granted under oath to the Constitution toward ending an instance of insurrection helps perpetuate it and is a case of giving aid and comfort to the same.
With all these points in mind, let us now consider what happened on January 6th, 2021.
The political violence on January 6th was planned and commenced by right-wing militia groups, including the Proud Boys and the Oathkeepers, many of whom have been convicted of seditious conspiracy in light of their premeditated actions on January 6th. Their motives were clear in that they intended to disrupt the official proceedings of Congress and halt the Constitutional process of counting electors with the overall goal of reversing the results of a free and fair election.
These circumstances alone demonstrate an instance of political violence that clearly falls into a reasonable definition of insurrection as a small or localized uprising of citizens engaging in political violence for the purpose of challenging the rule of law and subverting the political process. Yet, these circumstances fall short of a rebellion in that the action taken was not broadly engaged nor directed toward actually overthrowing the United States Government.
When these premeditated insurrectionists were joined by a mob set loose by Donald Trump’s incendiary rhetoric, the scope of the insurrection broadened and aided the militia groups in overwhelming law enforcement at the Capitol, leading to a breach of the building. This helped to accomplish, at least for a time, one of the goals of the insurrection in that the process of counting electors was disrupted and Congress was forced to hide or flee until the rule of law could be restored.
As these circumstances ensued, Donald Trump did nothing in his role as President of the United States to call off the people he himself had gathered to the Capitol, nor exercised any of the powers entrusted to him in defense of the Capitol or of Congress. He essentially abdicated his responsibilities as commander-in-chief in the face of an insurrection enacted by his own supporters.
Beleagured law enforcement received no reinforcement from federal forces nor federalized National Guard units until Vice President Mike Pence, not President Trump, gave the order. The rule of law was re-established, and the process of counting electors reconvened under Mike Pence’s direction and leadership while Donald Trump watched the political violence ensue on live television, putting out tweets that further inflamed the passions of the insurrection.
Despite Trump’s responsibility as the President of the United States to protect the constitutional process and to protect Congress, it took hours for Trump to even send a message on Twitter asking his supporters to end the violence and go home. The totality of Trump’s actions, or lack of action, on January 6th, combines toward a clear dereliction of duty and a violation of his oath of office.
Based upon the reasonable conclusions of this essay and upon the totality of the circumstances relevant to the political violence on January 6th, I contend that an insurrection did, in fact, occur and that Donald Trump offered aid and comfort to that insurrection. Therefore, a fair reading of Section 3 of the 14th Amendment clearly bars Donald Trump from future political office.
Part 8 - Final Thoughts
In this extended treatment of the constitutional question at hand, I have attempted to present a more theoretical approach built upon tradition, reason, and logic than is typically utilized for arguing questions under consideration by the Supreme Court. I did this for two reasons.
First, as I stated at the beginning of this essay, the question presented by Section 3 of the 14th Amendment is an original question, meaning there is no prior precedent addressing this provision of the Constitution. While the Supreme Court faced many original questions in the early years of the American Republic, it has been some time since such a question involving such serious consequences for the health of the political system has been considered by the Supreme Court. Since the early original questions before the courts were forced to take into consideration original intent, original purpose, and fair reading of sometimes vague phrasing and ill-defined terms by consulting various writings and understandings such as English common law and the Federalist Papers, I chose to rely upon my expertise as a political and constitutional theorist to offer such a treatment.
Second, given the tremendous civic impact of the possibility of applying Section 3 of the 14th Amendment toward barring a popular political candidate from office, I wanted to offer a compelling but somewhat more accessible treatment of the question compared to the extremely legalistic arguments engaged in elsewhere. Presently, much of the public outside of legal and scholarly circles, on both sides of the issue, is relying on poor and simple arguments to justify their positions rather than engaging in a reasonable and rational discussion of the issue. Regardless of whether my work here succeeds in persuading anyone, it’s my hope that it may trigger more substantive debates on the issue outside of the intellectual and legal realm.
As a final observation, I feel compelled to confess that my perspective on this issue is only one of many reasonable and compelling arguments being put forth in this time of constitutional quandary. There can be very little credible prognostication of how the nine justices who are soon to consider this most interesting original question will rule. And there are other aspects of this issue beyond the questions I have addressed in this essay that can limit or alter the ruling the Supreme Court offers.
It is quite possible that even if the Supreme Court agrees with me that January 6th was an insurrection and that Donald Trump offered aid and comfort to the same, they may find justification to stop short of barring him from running for political office. They could leave the question to each individual state to ultimately determine the question, through whatever process each state’s government dictates. They could determine that Section 3 only bars someone from assuming office and cannot remove someone from the ballot. Or, the most likely scenario I actually envision, they could rule on the questions at hand in the affirmative but dispense execution of Section 3 on the grounds that votes have already been cast and the Courts are reasonably hesitant to offer a ruling that can alter the outcome of an active political contest.
Only time will tell how this unusual and intriguing constitutional dilemma will be concluded.
Justin Stapley received his Bachelor’s Degree in Political Science from Utah Valley University, with emphases in political philosophy, public law, American history, and constitutional studies. He is the Founding and Executive Director of The Freemen Foundation, the Editor in Chief of the Freemen News-Letter, and is also a Federalism Policy Fellow at UVU’s Center for Constitutional Studies. @JustinWStapley