This essay first appeared in the February 19, 2022 Epoch Times.
When political opponents claim that pro-Trump members of Congress are “insurrectionists” and, therefore, disqualified from office, it is time to review what the Constitution means by “insurrection.”
When one such claim is based on a single vote in Congress, then it is high time to review the Constitution’s Speech and Debate Clause. When yet another claim is based on a public speech, it is time to examine the First Amendment.
Rep. Jim Banks (R.-Ind.) is the subject of one “disqualification” proceeding. Rep. Madison Cawthorn (R.-N.C.) is the subject of another.
The charge against Banks is that, during the count of presidential electors on Jan. 6, 2021, he voted not to count electors he believes were chosen illegally. The federal Electoral Count Act explicitly authorizes such a vote (pdf). Nevertheless, Banks’ accuser says it was “insurrection.”
The claim against Cawthorn is that he addressed the pro-Trump crowd in Washington, D.C., on the same day, and that this was likewise “insurrection.”
The accusers rely on Section 3 of the 14th Amendment. It reads in part as follows:
“No person shall be a Senator or Representative in Congress . . . who, having previously taken an oath, as a member of Congress . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same . . . .”
The 14th Amendment was proposed by Congress in 1866, and the states completed ratification in 1868. (Response to constitutional wonks: Yes, I know the ratification was controversial.)
What Does “Insurrection” Mean in the Constitution?
Today we think of “insurrection” as open rebellion against the government, usually by armed revolutionaries. If we apply that modern definition, then obviously, neither Congressman came close to insurrection. Neither was part of the Capitol riot, and there is little, if any, evidence that even those who did enter the Capitol intended to overthrow the government.
In applying the Constitution, however, we do not rely on modern definitions. We examine definitions as they existed when the original document, or the relevant amendment, was ratified. Moreover, we presume that when a word or phrase in an amendment also appears in the original Constitution, the word or phrase in the amendment means the same as in the original document.
The term “insurrection” appears in Article I, Section 8, Clause 15 of the original Constitution. When the Constitution was ratified, Samuel Johnson’s famous “A Dictionary of the English Language” was the leading work of its kind. Dr. Johnson defined “insurrection” as “a seditious rising, a rebellious commotion.” He described “seditious” as “Factious with tumult; turbulent.”
When interpreting a constitutional word, you should never rely on just one dictionary. Accordingly, I checked several other 18th century dictionaries, and they all had similar definitions.
As you can see, 18th century English speakers used “insurrection” more loosely than we do. Still, their definition required a crowd “rising” in “tumult” or “turbulence.” Mere protest wasn’t insurrection.
Obviously, by the original Constitution’s meaning, Banks’ congressional vote was not “insurrection.”
What of Rep. Cawthorn’s speech? Let’s get the very worst version of it we can. It is in a hostile opinion piece in a hostile publication–the New York Times:
“In advance of the riot at the Capitol, [Cawthorn] met with planners of the demonstrations and tweeted that ‘the future of this Republic hinges on the actions of a solitary few … It’s time to fight.’ He spoke at the pre-attack rally at the Ellipse, near the White House, where he helped work the crowd into frenzy, saying that the crowd had ‘some fight in it’ and that the Democrats were trying to silence them. And in the aftermath of the mob violence, he extolled the rioters as ‘political hostages’ and ‘political prisoners,’ and suggested that if he knew where they were incarcerated, he would like to ‘bust them out.'”
Was this insurrection?
First, Cawthorn “met with” those planning the demonstration. But there is no evidence that they were planning any violence or disorder. They were planning a peaceful demonstration, and the overwhelming majority of the participants did, in fact, remain peaceful—just as President Donald Trump asked them to be.
A few people outside the official planning group were plotting disorder, but there is no allegation that Cawthorn met with them, let alone encouraged them.
Second, we are told that Cawthorn tweeted “It’s time to fight.” But as was shown during the second Trump impeachment trial, this is standard political rhetoric.
Third, Cawthorn is charged with stirring up the crowd. But that’s the job of a speaker at a political rally! No one is placed on a political podium and told to be boring.
Fourth, there is no allegation that Cawthorn incited violence or illegal conduct of any kind.
Fifth: When the “tumult” arose, it did not arise among those who heard his speech at the Ellipse. It began at the Capitol, a mile and a half away.
Finally, Cawthorn later claimed that the rioters were political prisoners and that he’d like to release them. (He did not say that he planned to do so). Of course, his later statements cannot have incited an insurrection that had already ended. Anyway, according to a Rasmussen poll (pdf), half the country agrees with Cawthorn, that those rioters still detained are being held because they are political prisoners.
Thus, even the unrebutted charges outlined in the hostile New York Times fall well short of the loose 18th century definition of “insurrection.”
But should we apply an 18th century definition to a 19th century amendment? I mentioned that the amendment’s use of a term is presumed to be the same as in the original Constitution. However, that presumption can be rebutted, if there is good reason for doing so.
Let’s see if the 19th century meaning differed from the 18th century meaning. In the 19th century, the leading American dictionary was Noah Webster’s. It defined “insurrection” as follows:
“A rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens.”
It described “sedition” as:
“A factious commotion of the people, or a tumultuous assembly of men rising in opposition to law or the administration of justice, and in disturbance of the public peace.”
I’ve confirmed that other 19th century dictionaries had similar entries.
The 19th century definition would seem to require more direction than the 18th century meaning, and organized and violent resistance to law.
So should we apply the looser 18th century definition, or the tighter 19th century one? You can make a good argument for the latter. The 14th Amendment was not passed in response to a mere riot, but in response to the Civil War. If you asked the amendment’s ratifiers what they meant by “insurrection,” you’d probably learn that they were thinking of Antietam and Gettysburg, not a site-specific tumult by unarmed people.
Admittedly, that’s speculation. I’ll need to do more research before I can form an opinion as to whether the 14th Amendment’s word “insurrection” should be understood in its 18th or 19th century sense. In this case, though, it doesn’t matter: Neither Banks’ nor Cawthorn’s conduct fits either meaning of “insurrection.”
The Speech and Debate Clause and First Amendment
We should not leave matters there. We also should consider what kind of people would bring charges like this.
Banks’ activities in Congress are protected by the Constitution’s Speech and Debate Clause (Article I, Section 6, Clause 1). The Supreme Court has ruled that the Speech and Debate Clause protects anything “generally done in a session of the House by one of its members in relation to the business before it”—including voting (pdf).
The Speech and Debate Clause is a core part of our constitutional inheritance. It comes from the English Bill of Rights of 1689. The English version was adopted to prevent tyrannical kings and other officials from punishing members of Parliament for what they said or how they voted. The American Founders duplicated it in the Constitution to protect members of Congress from official reprisals and intimidation, including recrimination from unfriendly state election boards.
In other words, when Rep. Banks’ accusers seek to disqualify him for how he voted on the floor of Congress, they stand in the tradition of tyrannical English kings.
Cawthorn’s speech was within quite a different tradition: “the freedom of speech,” protected by the First Amendment. Even by the New York Times’ account, Cawthorn did nothing inconsistent with the First Amendment. He did not slander people. He did not cry “Fire” in a crowded theater. He did not incite to riot. His speech was precisely the kind of expression the First Amendment protects.
What This Says About the Accusers
What does that tell us about Banks’ and Cawthorn’s accusers? They are apparently ignorant of our constitutional traditions. They are also malicious: They seek to deny candidates who disagree with them the right to run for office. And they seek to deny the people the opportunity to vote for the candidates of their choice.