Insurrection-less America
Troubling as it might appear, America has cancelled “insurrection.”
A ‘first’ in Congress surfaced last week: a resolution before Congress claims that former President Trump was not responsible for the January 6 insurrection. This marks the first time a former President was exonerated by Congressional fiat to have anything to do with a violent uprising and attempt to overthrow the peaceful transfer of power vested in the Office of the President.
Time to crack open my dog-eared American history book:
Has there been an insurrection in the US since the Civil War? What is an insurrection and why are we talking about it so much?
Perhaps the logic behind the Gaetz-Stefanik resolution holds some answers. After all this resolution and the accompanying cable and photo ops in front of the US House of Representatives official seal, raise at least a smidgeon of textual analysis of ‘insurrection,’ the term occupying the resolution’s predicate.
The resolution, which is nonbinding, would declare that it is “the sense of the House of Representatives” that Trump “did not engage in insurrection or rebellion against the United States, or give aid or comfort to the enemies thereof.” (1)
In light of the evidence supporting a clear line from Trump’s remarks on the Ellipse and his iconic tweets, the Gaetz-Stefanik qualifier, ‘the sense of the House of Representatives,’ is revelatory, or revolting — your choice.
After wrapping my head around the impetus behind the resolution — sanitize history, revanchist skulduggery? — I, like others, was left with the expectation that the Supreme Court might resolve the confusion and near obsession about ‘insurrection,’ once and for all. Consider that an amicus brief signed by America’s elite constitutional historians, supporting Colorado’s decision to keep former President Trump off the ballot in that state had been filed and advocated for a reading of “insurrection,” as afforded by section 3 of the 14th Amendment.
Not surprisingly for some, the Supreme Court on Thursday, February 8, disappointed. (2) Not only did the Supreme Court skirt discussing the meaning of “insurrection,” the Court asked whether Colorado had any right, under the Tenth Amendment, to do so.
Section 3 is textually clear, but politically vague, as is most of the Fourteenth Amendment. So, Trump Attorney Mitchell could claim unequivocally that evidence of January 6 led him to conclude,
“This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things, but it did not qualify as insurrection.” (3)
In other words, ‘insurrection,’ by Mitchell’s reasoning, is in the eyes of the beholder.
America was ably prepared that upholding the Colorado decision as a template for other states would be a reach for the Supreme Court to endorse: the Justices are clamoring to get out of the gutter of public mistrust, not to mention the history-making moment of the Colorado appeal.
The discussion of February 8, however, did not resolve whether Colorado voters will know if and when their vote counts. For SCOTUS, if it should dismiss the Colorado plea and avoid making a distinction between what is meant by qualification and commitment shared by others to shred democracy, doesn’t prevent forces committed to shredding democracy from doing so.
Call me silly, but I don’t take my democracy like tea with milk.
Consider: rule by mob discretion rather than by the book is not to say avoiding the rule’s interpretation condones mob rule — it presumes mob rule as the alternative, hence validates it.
Only by judicial examination of the evidence did the fallacy that Biden’s votes couldn’t count because Trump lost, state by state, hold. Presumably, with respect to Alito, Roberts and yes, KBJ, the same could apply to state courts in reckoning insurrection.
“Shannon Stevenson, Colorado’s solicitor general, attempted to assure the Justices that it was not terribly anomalous for different states to adopt opposite conclusions about a candidate’s constitutional qualifications for office, pointing out that, in this election cycle, Colorado has disqualified a Presidential candidate from the primary ballot for not being a natural-born citizen, as the Constitution requires a President to be, though the candidate remains on the ballot in other states. The “huge amount of disparity in the candidates that end up on the ballot” in different states was, Stevenson said, a feature rather than a bug of the electoral process under our federal constitutional system. But the embrace of the “messiness of federalism,” as she put it, didn’t seem likely to appeal to Justices in the context of ballots in a national Presidential election.” (4)
The US Supreme Court could indeed determine that insurrection is cancelled. America now knows where 60 Congress members’ determination resides — in an insurrection-cancel resolution — crafted to “send a message.”
And hold democracy, not a former President, accountable.
February 12
Notes
1- Mychael Schnell, “Gaetz, Stefanik offer resolution declaring Trump ‘did not engage in insurrection,’” February 6, The Hill
2- On “Morning Joe,” February 9, MSNBC, former Watergate prosecutor, Jill Wine-Bank made the point that Texas could offer an interpretive template for extracting medical abortions (a dig at Trump Attorney Mitchell who argued the case), but for some obscure reason, Colorado could not.
See “Texas top court rules against woman who sought abortion for medical emergency,” Reuters, December 12, 2023.
3- Jeannie Suk Gersen, “The Supreme Court and the Risks of January 6, 2025,” February 8, The New Yorker
4- Gersen, ibid.
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