Why Jan. 6 Wasn’t an Insurrection

I’ve written several times about the case for disqualifying Donald Trump via the 14th Amendment, arguing that it fails tests of political prudence and constitutional plausibility alike. But the debate keeps going, and the proponents of disqualification have dug into the position that whatever the prudential concerns about the amendment’s application, the events of Jan. 6, 2021, obviously amounted to an insurrection in the sense intended by the Constitution, and saying otherwise is just evasion or denial.

From their vantage point, any definition of “insurrection” that limits the amendment’s application to the kind of broad political-military rebellion that occasioned its original passage — to the hypothetical raising of a Trumpist Army of Northern Virginia, say, or the seizure of the U.S. Capitol by a Confederate States of Trumpist America — is an abuse of the natural meaning of the word. Such a limitation, they say, ignores all the obvious ways that lesser, less comprehensive forms of resistance to lawful authority clearly qualify as insurrectionary.

Here are a couple of examples of this argument: The Atlantic’s Adam Serwer, arguing with me and New York magazine’s Jonathan Chait; and the constitutional law professor Ilya Somin, going back and forth with his fellow legal scholar Steven Calabresi in Reason magazine.

I have a basic sympathy with Calabresi’s suggestion that the “paradigmatic example” that the drafters of the 14th Amendment had in mind should guide our understanding of its ambiguities, and since the paradigmatic example is the Civil War, in which hundreds of thousands of people were killed, a five-hour riot probably doesn’t clear the bar. (For related arguments about the perils of applying precedents from specific crises to radically different situations, see this essay from Samuel Issacharoff as well.)