January 6, 2021 attack on the Capitol. (Probal Rashid/ZUMAPRESS/Newscom)

In an article published today, New York Times columnist Ross Douthat responds to my and others’ arguments that the January 6, 2021 attack on the Capitol qualifies as an “insurrection” under Section 3 of the Fourteenth Amendment. To his credit Douthat recognizes that uprisings much smaller than the Civil War—including the Whiskey Rebellion and Adolf Hitler’s 1923 Beer Hall Putsch “—meet a reasonable definition of insurrection.” As I have pointed out previously, these cases featured violence on roughly the same scale as the January 6 attack.

But Douthat nonetheless claims such cases “are obviously different from Jan. 6”:

The problem with Douthat’s reasoning is that it implies the Confederates who were the original targets of Section 3 weren’t insurrectionists either! Far from rejecting the Constitution and “denying the authority of the existing political order,” they argued the Constitution gave their states a legal right to secede, and that Abraham Lincoln and the federal government were the ones acting illegally. Moreover, they had a much better legal rationale for their position than Trump supporters for the utterly indefensible claim that their man was the true winner of the 2020 election. Violently attempting to block the constitutionally required transition of power to the winner of a presidential election is pretty obviously an insurrection against the Constitution—even if the perpetrators don’t explicitly say so. I go into these points in greater detail in a post published in September.

Douthat’s theory also has the absurd implication that people trying to seize power by force can escape disqualification under Section 3 so long as they claim—however absurdly—that they are actually following the Constitution and their opponents are the true lawbreakers. You don’t have to be a constitutional lawyer to see why that’s an implausible conclusion—one that would set a dangerous precedent.

By admin