The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
January 6, 2021 Was Not an Insurrection
Noscitur a sociis.
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?
Webster's 1828 Dictionary online defines "rebellion" as being "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 word "insurrection" draws its meaning in Section 3 of the Fourteenth Amendment from the word "rebellion", with which it is associated.
Far from it being a rebellion, the January 6th riot was a two and one-half hour event in the Capitol City of the third most populous country in the world. No one came to the riot with guns even though guns are widely available in this country. When former President Trump asked them to leave, they left. No-one from then on raised so much as a question over whether President would leave office peacefully, which he did by flying to Florida on the morning of January 20, 2021.
Like Ilya, I am appalled by Trump's behavior on January 6, 2021, and I will not vote for him under any circumstances because of it. But, setting the precedent of using the Supreme Court of the United States to settle political questions and presidential elections by keeping people off the ballot is very dangerous. Two wrongs do not make a right. The wrong that Trump committed on January 6, 2021 should not be used to perpetrate the additional wrong of keeping Trump off the ballot in 2024.
