Ilya Somin responded to my post yesterday by denying that Section Three of the Fourteenth Amendment only applies to insurrections and rebellions akin to civil war. He suggests that this would have applied to Shay’s Rebellion or the Whiskey Rebellion if Section Three had been written into the Constitution at the time those rebellions occurred.
Yale law professor Jed Rubenfeld wisely wrote that all constitutional clauses are written with a paradigmatic wrong that is meant to be corrected. The Fourth Amendment “right” to prohibit unreasonable searches and seizures was intended to remedy the “badness” of British colonial general warrants authorizing extensive searches of colonial warehouses for contraband goods. The Free Exercise Clause was written to prevent the “harms” done to Quakers who were executed for heresy by the Massachusetts Bay Colony, and the disenfranchisement of Catholics and Jews by the British government.
The paradigmatic “bad” underlying Section Three of the Fourteenth Amendment was an insurrection and rebellion during the American Civil War that resulted in the deaths of 620,000 to 850,000 Americans. This represented 2.5 percent of the population, the equivalent of 7 million people today. The third section applies to future “insurrections or rebellions,” but they must be analogous in some way to civil war. It is in this sense that the words “insurrection or rebellion” are used in the Fourteenth Amendment.
The riot of January 6 left 5 dead, including two victims of heart attacks. No rioters brought weapons to the riot in a country overflowing with private weapons. I’m sure many members of the Proud Boys and Oath Keepers owned guns, but they didn’t bring them to the timeskip on January 6th. The so-called “insurrection or rebellion” lasted two and a half hours, dispersed peacefully at the request of Donald Trump, and occurred in a city in the world’s third most populous country after India and China. The casualties were far fewer than in the many episodes of crazy shootings, which took place in schools and other public places like at 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 if it had been the supreme law of the land at the time these commonly referred to rebellions occurred. The “insurrections or rebellions” contemplated by Section Three must be threats to the government similar to those posed by the American Civil War. The riots of January 6, 2001 are far from reaching this level.
