The Volokh Conspiracy
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The January 6th Riot Was Not Like the Civil War
A Response to Ilya Somin
Ilya Somin has responded to my post yesterday by denying that Section Three of the Fourteenth Amendment only applies to Insurrections and Rebellions that are akin to the Civil War. He suggests it would have applied to Shay's Rebellion or the Whiskey Rebellion had Section Three been in the Constitution when those rebellions occurred.
Yale Law Professor Jed Rubenfeld has written wisely that all constitutional clauses are written with a paradigmatic wrong that is meant to be righted. The Fourth Amendment "right" to be from unreasonable searches and seizures was meant to right the "wrong" of the British colonial general warrants authorizing sweeping searches of colonial warehouses to look for smuggled goods. The Free Exercise Clause was written to prevent the "wrongs" done to Quakers who were executed for heresy by the Massachusetts Bay Colony, and the exclusion from the franchise of Catholics and Jews by the British government.
The paradigmatic "wrong" underlying Section Three of the Fourteenth Amendment was an insurrection and rebellion during the U.S. Civil War that led to the deaths of between 620,000 and 850,000 Americans. That was 2.5 percent of the population or the equivalent of 7 million people today. Section Three does apply to future "insurrections or rebellions", but they have to be analogous in some way to the Civil War. This is the sense in which the words "insurrection or rebellion" are used in the Fourteenth Amendment.
The January 6th riot let to the death of 5 people, two of whom died of heart attacks. No rioter brought guns to the riot in a country, which is awash in privately owned guns. I am sure many members of the Proud Boys and the Oath Keepers owned guns, but they did not bring them to the ellipse on January 6th. The alleged "insurrection or rebellion" lasted two and one half hours, peacefully dispersed on Donald Trump's request, and occurred in one city in the third most populous country on earth after India and China. The casualties were much smaller than in the many mad gun shooting episodes, which have occurred in schools and other public places like Sandy Hook where 26 people died.
Neither the so-called Shays Rebellion nor the Whiskey Rebellion would have triggered Section Three of the Fourteenth Amendment had it been the Supreme Law of the Land when those popularly labeled rebellions occurred. The "insurrections or rebellions" contemplated by Section Three must be threats to the government akin to that posed by the U.S. Civil War. The January 6, 2001 riot does not even remotely come close to reaching that level.
