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Steve Calabresi has posted an impressively swift response to my post explaining why the January 6, 2021 attack on the Capitol was an insurrection. But I remain unpersuaded. Steve's emphasis on the use of the word "rebellion"—in addition to "insurrection"—in Section 3 of the 14th Amendment only reinforces my point.

Steve relies on the legal rule of noscitur a sociis, which is the idea that words in a statute should be understood by reference to their "associates," in this case that "insurrection" should be understood as similar to "rebellion" because in Section 3 both occur in the same phrase ("insurrection or rebellion"). He then argues that "rebellion" is limited to uprisings on a scale comparable to the Civil War.

While it is reasonable to read the two words together, one can't be interpreted in such a way as to render the other redundant. That would violate another longstanding rule of legal interpretation: the canon against superfluity, which, as Justice Scalia and Bryan Garner explain in Reading Law, requires courts to give effect to "every word and every provision" in a law and to ensure that "none should be needlessly given an interpretation that duplicates another provision" (quoting US v. Butler (1936)). While "insurrection" and "rebellion" may overlap and be similar, it is perfectly plausible that one may include some uprisings too small to be included in the other. If they were completely identical, one term would be rendered superfluous. Thus, my explanation of how the January 6 attack fits any plausible definition of "insurrection" (including Steve's own preferred definition from the 1828 Webster's dictionary) remains unrefuted.

In addition, the events of January 6 fit any plausible definition of "rebellion," as well—including, once again, Steve's own preferred definition. There is no reason to believe that a "rebellion" must be on a scale comparable to the Civil War, or anything like it. There is nothing incoherent or implausible about the idea of a small-scale rebellion that is quickly suppressed. Such rebellions are actually far more common than large and prolonged ones!

Consider the two most famous pre-Civil War events in American history generally labeled rebellions: Shay's Rebellion (1786-87), and the Whiskey Rebellion (1793). Both were on a scale similar to the January 6 attack. Each involved no more than a few thousand rebels (only about 600 in the case of the Whiskey Rebellion; many fewer than January 6). Each occurred in one part of just one state (western Massachusetts and western Pennsylvania, respectively). The number of combat fatalities (9 for Shay's Rebellion, 3-4 for the Whiskey Rebellion, 5 on January 6) is also similar.

The two 18th century uprisings did take longer to suppress than January 6 did. But that was in large part because a comparable number of rebels were spread over a larger area. Plus, the military response to the two revolts was slow to develop and eighteenth century transportation technology made it harder to move troops quickly than is the case today.

I would add that the objectives of Shays Rebellion (debt relief) and the Whiskey Rebellion (repealing the federal whiskey tax) were more limited than those of the January 6 rebels (seizing control of the most powerful office in the land and denying it to the rightfully elected candidate). In that respect, January 6 was actually more clearly a rebellion than either of the other two.

Relying again on the 1828 Webster's Dictionary, Steve defines "rebellion" as "An open and avowed renunciation of the government to which one owes allegiance; or the taking of arms traitorously to resist the authority of lawful government; revolt." The January 6 attack easily falls within this definition. The people who attacked the Capitol clearly took "up arms" and "resist[ed] the authority of the lawful government." Indeed, their purpose was to enable Trump to illegally continue to wield that authority. The fact they believed it rightfully belonged to him does not change the nature of their actions, for reasons I outlined in a previous post. Notice also that Steve's preferred definition indicates no minimum scale that an uprising must reach before it can be considered a "rebellion." A small "revolt" qualifies no less than a big one.

Steve asks whether, under my approach, the 2020 "Black Lives Matter" riots also qualify as insurrections. In my view, the answer is probably not, because the rioters did not seek to take control of the powers of government. Unlike the participants in the Whiskey and Shays' rebellions, most didn't even seek the repeal of specific laws. But if some did seize government power (the case of the "CHOP" group, which took control of parts of the Seattle for several weeks may be an example), then their actions do qualify as "insurrection." I have no problem biting that bullet.

Of course, only those participants who previously held various types of public offices can be disqualified under Section 3. Some Seattle officials apparently helped CHOP. If Steve—or anyone else—wants to get these people disqualified from future office-holding under Section 3, I think they might have a good case.

In sum, January 6 was an insurrection—including under Steve's preferred definition of that term. And, to the extent it matters, it probably counts as a "rebellion" as well.

UPDATE: Steve Calabresi has posted an additional rejoinder responding to this post here. He argues that Section 3 applies only to "rebellions" or "insurrections" that are comparable in scale to the Civil War, which is the "paradigm" case the section was intended to address. But Section 3 speaks in general terms of insurrection and rebellion, and requires disqualifying all covered government officials who "engage" in them. That strongly suggests it was meant to apply to all insurrections and rebellions, not just some subset that may be seen as similar to the Civil War. Steve provides no textual or original meaning evidence to the contrary.

It would make little sense to exempt insurrectionists from the ban merely because their attempts to overthrow the government were ineffective and relatively easily crushed. The whole point of Section 3 is to prevent such people from getting a second chance to subvert the republic. People who try one insurrection that fails miserably may be more effective the next time around! They could even learn from their previous mistakes.

The Constitution has many provisions that were enacted in response to a "paradigm" case (or cases), but nonetheless apply more generally. The Fourteenth Amendment's restrictions on racial and ethnic discrimination was enacted in response to southern states' oppression of blacks, but nonetheless protects other groups, too, and ban state-sponsored racial discrimination that takes forms different from those of the Black Codes of the 1860s. The First Amendment was enacted in response to specific types of censorship and oppression of religious minorities practiced by eighteenth century Britain, but nonetheless protects freedom of speech and religion more broadly.

Finally, it is not true the mob attacking the Capitol "peacefully dispersed on Donald Trump's request." They fled because they were defeated after extensive fighting, and reinforcements arrived to assist the initially overwhelmed Capitol Police. Trump did not issue any request to disperse until after it was clear that the attack he inspired was on its way to defeat. Until that point, evidence indicates he was cheering on the mob (much of it summarized by the Colorado Supreme Court in its Section 3 decision), and trying to use the attack as leverage to pressure members of Congress into refusing to certify the election results.

At this point, we are probably in the realm of diminishing returns in this exchange. I will leave off, unless some significant new point is raised. Many thanks to Steve for his insights.

Justice Antonin Scalia, one of the leading originalists and textualists of the modern era ended his career by publishing with Bryan A. Garner a 2012 treatise Reading Law: The Interpretation of Legal Texts. In his treatise, Scalia urges lawyers to go back to using the canons of interpretation, which the legal realists sarcastically scorned. As it happens, there is a canon of interpretation, which is very relevant to what the word "insurrection" means in Section 3 of the Fourteenth Amendment, which Ilya Somin's post today conveniently overlooks: noscitur a sociis — The meaning of an unclear or ambiguous word in a legal text should be determine by considering the words with which it is associated in context.

The word "insurrection" in Section 3 appears as part of the phrase "insurrection or rebellion" in a text that had as a paradigmatic example the U.S. Civil War in which 620,000 Americans at a minimum died and possibly as many as 850,000 according to more modern estimates. This amounts to about 2.5% of the population, which today would be 7 million people.

In contrast 5 people died in the January 6, 2021 riot at the Capitol. This difference in scale is enormous! More people died in the 1960's race riots and no-one called them an insurrection. Thirty-four people, for example died in the Watts Los Angelos riot in 1965 and more than a thousand were injured.

If the January 6th riot was an insurrection are Black Lives Matters protests also insurrections with the result that those who participate in such protests cannot run for political office? Read More

The attack on the Capitol. January 6, 2021. (NA)

Today is the third anniversary of the January 6, 2021 attack on the Capitol, intended to keep Donald Trump in power after he lost the 2020 election. One of the points at issue in the Supreme Court case considering whether Trump should be disqualified under Section 3 of the Fourteenth Amendment is whether the events of that day qualify as an "insurrection." It should be an easy call. The January 6 attack was an insurrection under any plausible definition of that term.

As legal scholar Mark Graber shows, contemporary definitions of "insurrection" prevalent at the time the Fourteenth Amendment was enacted were quite broad: possibly broad enough to encompass any violent resistance to the enforcement of a federal statute, when that resistance was motivated by a "public purpose." That surely includes the January 6 attack!

I'm not convinced courts should actually adopt such a broad definition. It could set a dangerous precedent. As Graber notes, on that theory people who violently resisted enforcement of the Fugitive Slave Act qualify as insurrectionists, too. But January 6 was an insurrection even under a narrow definition that covers only violent attempts to illegally seize control of the powers of government. After all, the attackers were using force to try to keep the loser of the 2020 election in power, blocking its transfer to the rightful winner. If that isn't a violent attempt to seize government power, it's hard to know what is.

It's true many of those who participated thought they were acting to support the rightful winner of the election, and thus believed they weren't doing anything illegal. But much the same could be said of the ex-Confederates who were the original target of Section 3. Most of them believed their states had a constitutional right to secede, and they had much better grounds for that belief than Trumpists ever had for the utterly indefensible claim that the election was stolen from him (one uniformly rejected in numerous court decisions, including by judges appointed by Trump himself).

It is sometimes claimed that the mob attacking the Capitol was unarmed or not violent enough to qualify as an insurrection. That would be news to the five people who were killed, and over 140 police officers injured. There could easily have been many more fatalities had the attackers been more successful in carrying out their plans to "hang Mike Pence" and kill members of Congress (Pence and the members managed to escape). And it just isn't true that the mob was unarmed. After extensive consideration of evidence, Colorado courts found otherwise:

[C]ontrary to President Trump's assertion that no evidence in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found—and millions of people saw on live television, recordings of which were introduced into evidence in this case—that the mob was armed with a wide array of weapons…. The court also found that many in the mob stole objects from the Capitol's premises or from law enforcement officers to use as weapons, including metal bars from the police barricades and officers' batons and riot shields and that throughout the day, the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol…. The fact that actual and threatened force was used that day cannot reasonably be denied.

Co-blogger and prominent conservative law professor Steve Calabresi is nonetheless unconvinced January 6 was an insurrection. He relies on a definition of "insurrection" from the 1828 edition of Webster's Dictionary:'

A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

The events of January 6 fit this definition to a T! The attack on the Capitol was obviously "A rising against civil or political authority" and even more clearly "the open and active opposition of a number of persons to the execution of a law in a city or state." The mob incited by Trump sought to prevent the "execution" of the laws requiring transfer of power to the winner of the election.

Calabresi suggests that the January 6 attack fits the definition of a "riot." Perhaps so. But "riot" and "insurrection" aren't mutually exclusive concepts. An event can be both at the same time. Indeed, that's a common occurrence in history.

Calabresi and others also argue that the attack wasn't large enough to qualify as an insurrection because, as he puts it, the attack "occurred for three-and-one-half hours in one city only in the United States, Washington D.C., and not as an overall insurgency in multiple cities across the United States." But the definition he himself cites indicates that an insurrection is "the open and active opposition of a number of persons to the execution of a law in a city or state" (emphasis added). That suggests one city is enough.

And there is no historical or modern evidence indicating that an insurrection has to last some minimum length of time. A revolt that is quickly put down can still be an insurrection. The same goes for one that is poorly planned and easily defeated.

If actions in multiple cities are required, a great many attempted coups and armed revolts would not count as "insurrections." It is common for attempts to seize power to focus on the capital city where the government is located. If the revolt is put down, it may not spread elsewhere. But that doesn't mean it was not an insurrection.

The Bolshevik seizure of power in Russia in 1917 initially involved just the capital city of St. Petersburg. If the Provisional Government had managed to swiftly crush it, thereby preventing it from spreading to other cities, would that mean it wasn't an insurrection?

Do Steve and others who advance similar reasoning believe Adolf Hitler's 1923 Beer Hall Putsch was as an insurrection? Like the January 6 attack, it lasted only about one day (evening of Nov. 8, 1923 to the evening of the following day), and was limited to a single city (Munich, the capital of the German state of Bavaria). The number of participants (several thousand; 1265 people have been charged with offenses related to the attack on January 6, and many other participants likely got away without being identified or charged) and the number of people injured was also similar to that of January 6.

There were somewhat more fatalities (21) in the Beer Hall Putsch. But 16 of them were participants in the coup (the others were four police officers and a civilian bystander). The Bavarian police and troops who put down the revolt were less restrained in their use of force than US law enforcement officers on January 6 (who only killed one of the attackers). That surely isn't a decisive difference between the two cases. More aggressive law enforcement action cannot by itself transform a mere "riot" into an insurrection.

It seems obvious that both the Beer Hall Putsch and the January 6 attack were insurrections, for the simple reason that both involved the use of force to illegally seize control of government power. It matters not how long they lasted, or that they were poorly planned and quickly put down. And it certainly doesn't matter that they both occurred in just one city.

There is an admittedly more difficult issue over the question of whether Trump "engaged" in the insurrection that occurred. I think the Colorado Supreme Court decision that the US Supreme Court will review dealt with that question persuasively. But Trump has a better argument on that point than on any other. His involvement, while substantial, was less clear and direct than, say, Hitler's in the Beer Hall Putsch or Lenin's in the Bolshevik revolt in Russia. But whatever might be said of Trump's level of involvement, there can be no serious doubt that an insurrection did occur.

UPDATE: I have made minor additions to this post.

UPDATE #2: Steve Calabresi responded to this post here. I have posted a rejoinder here.

The Supreme Court of Israel recently invalidated a controversial law limiting judicial "reasonableness" review of government policies. I previously wrote about the law here. To analyze the decision, we are pleased to publish a guest post by prominent Israeli legal scholar Professor Ronit Levine-Schnur. She is a faculty member at the Law Faculty, and co-head of the Center for Applied Research of Risks to Democracy, at Tel Aviv University. We are grateful to Prof. Levine-Schnur for taking the time to share her insights on this important ruling, especially during this difficult period in Israel's history.

The remainder of this post is by Prof. Levine-Schnur, not me (Ilya Somin):

In the course of one year, Israel—an intense country on a regular basis—has been pushed to its foundational limits. As a Jewish and democratic state, Israel's internal and external conflicts have always been extensive. But 2023 was a year beyond the worst expectations. The October 7 sudden and repulsive attack, massacre, and kidnapping of civilians by Hamas, were horrific which targeted Israel as a Jewish state, and Israelis as Jewish (although not all the victims were). It brought back living memories of the Holocaust. One of many stories to mention is of that Dr. Hayim Katsman, who was shot dead while hiding in a closet at his home in Kibbutz Holit, exactly 80 years after his ancestors in Poland were deported and killed at the Treblinka extermination camp. Unfortunately, the horrendous events of October 7 (and its aftermath) came after 9 demanding months of a wholly different kind of attack on Israel's democracy.

On January 4, 2023, Israel's newly sworn-in government, presented its plan for a "governmentality reform." This plan, for both its supporters and opposers, targeted the democratic nature of the Israeli state. The supporters, primarily represented by the Justice Minister, Yariv Levin, and the Head of the Parliamentary Constitution Committee, MK Simcha Rothman, argued that Israel's democratic character is undermined by the Supreme Court, the Attorney General, and other gatekeepers, who prevent the government from executing the "people's will" by putting restraints on its power. To fix this, and to strengthen Israel's democracy, so they claimed, they advanced 5 central amendments, all of which aim to weaken the grip and independence of the judiciary and the gatekeepers as a means that balance the power of executive.

In the eyes of many, the proposed changes were not democracy-enhancing at all. If approved, they argued, Israel would no longer be considered a democracy, as their adaptation would lead to an unrestrained government. Even before all these changes were to be enacted, the executive branch in Israel already possessed extraordinarily powers compared to most democracies. It effectively controls the parliament and its lawmaking agenda (including the enactment of basic laws, as will be explained below), and it lacks all the constraints and checks and balances that exist in the U.S. and many other constitutional democracies (such as an entrenched constitution, bicameralism, presidential veto, federalism, etc.).

The government's plan for reform was supposed to be implemented as statutory amendments to Israel's Basic Laws. The term "Basic Law" has no formal meaning under Israeli legislation. Israel has no written constitution, and in particular, there is currently no law that sets the rules for legislating and amending constitutional norms. There is no formal norm that differentiate the legislative procedure of ordinary laws and constitutional ones. This lack of formality is the result of a 75 year-long tradition of legislating portions of the emerging constitution as basic law, without this tradition itself being properly legislated. While for many years basic laws were enacted on broad consensus and were rarely amended, in the past decade there has been an ongoing deterioration of this practice, where the pace of amendments lost control and the custom of broad consensus was abandoned. Basic laws were now often used to solve concrete political issues.

As an illustration, the average rate of amendments between 2014 and 2022 stood at 4.75 changes a year, compare with less than 0.15 changes a year on average in the USA (since 1789). Moreover, basic laws were now enacted or amended based solely on the vote of ruling coalition members, hence, without a consensus which crosses the coalition-opposition lines. As Justice Amit commented: "the Israeli constitution is extremely flexible, almost spineless, in a way that allows it to win the floor gymnastics world championship for constitutions." Thus, if a presiding government utilizes its legislative powers it can, almost overnight, enact any basic law it aims, ostensibly, even if it leads to a severe harm to Israel's nature as a Jewish and Democratic state.

The five components of the government's plan included: 1. Granting the government an absolute control over the appointment of judges and justices to all courts. 2. Preventing judicial review of basic laws. 3. Preventing or severely limiting judicial review of regular Knesset legislation, and allowing the ruling coalition to "override" the effect of judicial review with its guaranteed majority in the Knesset. 4. Significantly diminishing the role of the Attorney General and government legal advisors as gatekeepers. 5. Preventing judicial review of the executive power of the government and its ministers based on unreasonableness grounds.

During the first 9 months of 2023, the government—who under the Israeli system controls the unicameral legislature (the Knesset)—pushed as hard as it could to legislate its reform. It faced, however, an unprecedented resistance, were for over 39 weeks, Israelis protested and disrupted as much as they could to the government's plan.

On July 24, despite the mass public protests, the objection of many legal, economic, military and other experts and former senior officials, and the decision of reservists in the air force and other units not to continue their voluntary military service if the law is amended, the "Unreasonableness Amendment" passed the second and third readings in the Knesset and became law. The law takes the form of an amendment to Section 15 of the Basic Law: The Judiciary. This section defines the jurisdiction of the Supreme Court sitting as a High Court of Justice to review governmental acts and decisions. According to the Amendment, no court of law, including the High Court of Justice, may consider and/or pass judgment on the reasonableness of any "decision" of the Cabinet, the prime minister, or any other minister; nor may a court give an order on the said matter based on its purported unreasonableness. The Amendment defines a "decision" as "any decision – including in matters relating to appointments, or a decision to avoid exercising any authority."

As the Israeli Law Professors' Forum for Democracy analyzed, the immediate danger of the Amendment is in the field of corruption, both in the use (or rather misuse) of public funds and in the field of government appointments and removal of officials from office. The principal immediate threat could be a government decision to dismiss the Attorney General who heads the state public prosecution, and to replace her with a lawyer who will be favourable to halting the prosecution of PM Netanyahu on charges of corruption. Another fear is that the Court will not be able to intervene in the refusal of the Minister of Justice to convene the Committee for the Selection of Judges. The more general danger, moreover, is that obliterating reasonableness as a legal standard would be seen by the government and its ministers as a general license to act unreasonably. The Amendment will weaken the power of legal advisers at all government levels to curb illegal, corrupt, and politically-motivated decisions. A principal tool for curbing such decisions and acts at the departmental level are legal advisors' warnings that such acts would likely be struck down by administrative courts on grounds of manifest unreasonableness. This crucial process of nipping institutional (as well as personal) corruption at the bud has now been eliminated, with no alternative mitigating measure instated in its place.

Indeed, the constitutionality of the Amendment was immediately put to test, and as the new year begun, the Supreme Court delivered its monumental decision, a first of its kind en banc case decided by all its 15 justices.

The Supreme Court faced the following questions:

Is the Knesset, as a constituent authority, limited in its powers to enact basic laws.
Assuming that the answer to the above question is affirmative, the following question is whether the court is authorized to conduct judicial review on basic laws, and whether it can determine that the Knesset exceeded its authority in enacting a basic law.
Assuming that the answer to the previous question is positive, the third question arises—did the Knesset deviate from its authority as a constituent authority in amending the "Unreasonableness Amendment," in a way that requires a declaration of the invalidity of the amendment. This question requires first to determine the correct interpretation of the amendment.

Of 15 justices, a majority of 13 ruled in the affirmative on the first two questions. Two other justices denied both the existence of limitations on the constituent power and the court's authority to review basic laws. Among the majority, there is some variation between the justices concerning the kind of limitations imposed on the constituent power, but they all agree that they are essentially concerned with Israel's nature as a Jewish and Democratic state. There is also some variation concerning the source of legitimacy for the court's power to conduct judicial review, but it essentially rests on either the "constitutional existentialist facts" or the Declaration of Independence, or on existing basic laws. Of the 13 justices, a few were more cautious than others in crafting the scope of review.

This caution is reflected in that of the 13 justices mentioned, eight found the Amendment unconstitutional and void, in that it cannot be reconciled with the principles of separation of powers and the rule of law, "which are two of the most important characteristics of our democratic system. Such an infringement to the very heart of our founding narrative cannot stand" (Ret. Chief Justice Hayut). Justice Amit clarified that the Amendment should be assessed given "the democratic deficit in which the country is, which lacks 'engines of democracy' that exist in many countries in the world and which contribute to the strengthening of the democratic foundation." Thus, the Amendment "steps in the opposite direction and further strengthens the power of the executive authority… such a blanket denial of unreasonableness as a ground for judicial review has a much higher specific gravity than in other countries."

Three other justices found that the Amendment could be interpreted in such a way that makes its effect on Israel's democratic character below the unconstitutionality threshold. Here the interpretation adopted by the justices—which limits the unreasonableness doctrine denied by the Amendment to a strictly limited component of it (the balancing test)— is tricky. Both during the legislative process and in oral testimony before the Court, MK Rothman clearly explained that the subjective intention of the legislator is to deny the doctrine all together. For the three justices, who are usually considered as conservative ones, it was extremely important to avoid the more drastic step of annulling a basic law. Adopting the narrow interpretation, contra to the explicit intention of the legislator, seems to contradict their (especially one of them – Justice Alex Stein) commitment to a more originalist mode of interpretation.

To conclude, in its decision, the Israeli Supreme Court declared the first component of the judicial reform as an unconstitutional constitutional amendment. More importantly, in this landslide decision, the Supreme Court not only announced the limits of the Knesset as a constituent assembly, but also effectuated these limits by clearly positing it can announce basic laws as unconstitutional and void. The decision raises, of course, many questions and dilemmas. It will inspire endless accounts and analyses. The only hope is that instead of leading to a further divide among Israelis it would do the opposite. After this annus horribilis, many conceptions should be rethought. A good starting point in strengthening Israel's democracy, is in creating a joint mechanism involving members of both coalition and opposition, that would prepare a basic law which determines how constitutional norms are to be enacted. This would allow us to put the current Court's decision in proper perspective: it was the unavoidable outcome of a longstanding failure to properly establish the institutions that hold Israel's democracy intact.

1/6/1964: New York Times Co. v. Sullivan argued.

The Volokh Conspiracy

Insurrection, Rebellion, and January 6: Rejoinder to Steve Calabresi [updated with brief further rejoinder]

"Insurrection" and "rebellion" should not be conflated. But the events of January 6 readily meet the criteria for both.

January 6, 2021 Was Not an Insurrection

Noscitur a sociis.

The January 6 Attack was an Insurrection

And it isn't a close case.

Guest Post on Israeli Supreme Court Decision Striking Down Law Restricting Judicial "Reasonableness" Review of Government Policies

The post is by prominent Israeli legal scholar Ronit Levine-Schnur (University of Tel Aviv).

Today in Supreme Court History: January 6, 1964

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