If a state legislature (or court) disqualifies a candidate in its state, while other state legislatures (or courts) don’t, the result could be chaotic.
This is part two of a two-part series listing the hurdles faced by lawsuits to disqualify former President Donald Trump from running for the presidency—hurdles so numerous and serious that they imply that the suits shouldn’t have been brought at all.
The first part explained hurdle No. 1—the cases aren’t legally “ripe,” and those suing likely have no legal “standing” to do so—and hurdle No. 2: The 14th Amendment’s disqualification clause may not apply to the president at all.
Hurdle No. 3: What History Tells Us About the Meaning of ‘Insurrection’
The word “insurrection” appears four times in the Constitution: once in the original Constitution (Article I, Section 8, Clause 15) and three times in the 14th Amendment.
Judges and lawyers interpret words in legal documents in accordance with the circumstances in which they were adopted. To those who adopted the original Constitution, an “Insurrection” was a sustained armed uprising like the American Revolution or Shays’s Rebellion. The 14th Amendment was proposed in 1866 and fully ratified in 1868. Its references to “insurrection” and “rebellion” were triggered by a Civil War in which more than 600,000 Americans had died.
By these standards, the Jan. 6, 2021, incident was very small potatoes. Although President Trump’s opponents try to obfuscate these facts, almost all the demonstrators were unarmed, and they killed no one; only a small percentage of them actually entered the Capitol—and many of those were effectively invited in by Capitol security people. And, once inside, most just milled around aimlessly.
I mention these facts not to excuse the rioters but to point out that the incident bears no serious relationship to “insurrection” as the Constitution employs the word. Indeed, it also bears no serious relation to “insurrection” as modern commentators usually employ the word: It hasn’t been applied, for example, to the recurrent big-city riots and assaults on government buildings associated with leftist causes since 1968, many of which caused far more damage than the Jan. 6, 2021, riot.
By Rob Natelson
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