Challenging Steve Calabresi: Examining Insurrection, Rebellion, and the Events of January 6

Shay’s Rebellion (1786).

(Bettman Archive)

(Bettman Archive)

Steve Calabresi has posted an impressively swift response to my post explaining why the January 6, 2021 attack on the Capitol was an insurrection. But I remain unpersuaded. Steve’s emphasis on the use of the word “rebellion”—in addition to “insurrection”—in Section 3 of the 14th Amendment only reinforces my point.

Steve relies on the legal rule of noscitur a sociis, which is the idea that words in a statute should be understood by reference to their “associates,” in this case that “insurrection” should be understood as similar to “rebellion” because in Section 3 both occur in the same phrase (“insurrection or rebellion”). He then argues that “rebellion” is limited to uprisings on a scale comparable to the Civil War.

While it is reasonable to read the two words together, one can’t be interpreted in such a way as to render the other redundant. That would violate another longstanding rule of legal interpretation: the canon against superfluity, which, as Justice Scalia and Bryan Garner explain in Reading Law, requires courts to give effect to “every word and every
redential group discounts End of Article limit reached.