On the third anniversary of January 6, the rumblings of “insurrection” loom large. But what exactly is insurrection?
It is often said that he who defines the terms wins the argument. In terms of legal construction, it is imminently important to use definitions that either precede or are contemporaneous with the date of passage of the laws being interpreted.
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Section 3 of the 14th Amendment says:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Therefore, when hoping to understand this clause (passed June 8, 1866, and ratified July 9, 1868), it makes sense to look to Noah Webster’s 1828 American Dictionary of the English Language:
INSURREC’TION, noun [Latin insurgo; in and surgo, to rise.]
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A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. E.g. It is found that this city of old time hath made insurrectionagainst kings, and that rebellion and sedition have been made therein. Ezra 4:19.
Insurrection requires opposition to the execution of a law.
While there is tremendous debate as to what even transpired on January 6 — such as who was instigating entrance into the Capitol — one thing is clear: President Trump and those who were supporting him were vehemently advocating for the full execution of the law. They wanted to ensure that the Electoral Count Act was adhered to for the proper vetting and certification of electors. Consequently, it would have been those who did not want the Electoral Count Act to be followed who would have definitionally been the ones guilty of insurrection. Unfortunately, it was this latter group that won out in the end, as the prescribed legal protocol was dispensed with. Nobody will ever know what the result would have ultimately been had the proper process been followed. So, while the media cries “insurrection,” its true definition and proper application is ignored.
The Founders warned about the misuse of sedition charges against political opponents.
The Founders were intimately familiar with sedition charges, which Webster likens to insurrection. The Crown misused and abused charges of sedition to criminalize and silence political dissidents. In fact, the founders so earnestly desired to prevent this abuse of power, they passed the First Amendment rights of freedom of speech and freedom of press. They strongly desired that all citizens would be free to exercise the unalienable right to believe according to the dictates of their conscience, and to be undisturbed in their freedom to express those thoughts and beliefs both orally and in writing. These freedoms were to be unrestrained without fear of reprisal, even when those beliefs did in fact express opposing positions to the Crown or those in authority.
The historic case of John Peter Zenger in Colonial America illuminates the position of our founding fathers regarding the preservation of these freedoms. It also demonstrates the gradual shift from this preservation by our modern-day legal system. In short, our right to a trial by a jury of our peers anticipated the ability of jurors to not only render a verdict as to the facts but also as to the legitimacy and appropriateness of the law.
John Peter Zenger was tried for the crime of seditious libel because of statements he had published opposing the positions of the Crown. Despite the court instructing the jury to only decide whether Mr. Zenger had in fact written the statements, the jury instead, in rendering its verdict of not guilty, elected to decide issues of law as well as fact. Accordingly, they determined the law criminalizing sedition to be a deprivation of an unalienable right, and therefore, unenforceable. The jury was undoubtedly influenced by the impassioned speech of Zenger’s defense attorney, Alexander Hamilton, who unequivocally stated to the judge his view of the authority of the jurors: “I know they have the right beyond all dispute to determine both the law and the fact.”
Because of this case and others like it, King George deprived the colonists of their right to trial by jury. This deprival was even cited within the Declaration of Independence as one of the grievances legitimizing the severing from Great Britain and establishment of a new nation.
The Founders considered these two things egregious deprivations of liberty:
- the denial of the ability to speak in opposition to the ruling authority;
- the refusal to allow a jury to determine the legitimacy of such laws.
We should take a moment to let this sink in. What tyranny did our Founding Fathers consider so oppressive as to merit separation from Great Britain and war? The criminalization of sedition and the deprival of the full right to trial by jury.
We do not advocate for war or even any type of physical uprising, but rather we pray against it. Still, we must not be oblivious to the fact that we once again find ourselves confronting these same grievances. We must be informed and equipped so that we may peacefully express our views as to how these may be best addressed for the preservation of true liberty and the securing of inalienable rights.
The fact that silently and without much fanfare the full right to trial by jury was gutted and made all but meaningless over 100 years ago should cause us to sit up and take note. The Supreme Court in Sparf v. United States in 1895 put the final nail in the coffin denying the ability of jury review of the law. That our modern legal system has taken from the people our ability through a jury of our peers to decide not only facts but also law (coupled with the recriminalization of sedition) creates the perfect storm for serious abridgments of liberty.
While it may be tempting to be discouraged and focus on the chaos we see around us in our nation, we must keep our eyes focused on the source of all liberty: the Spirit of the Lord. We are assured that all things work together for good for those who love the Lord and are called according to His purposes. Therefore, we can confidently pray for beauty to arise from ashes.
May all the departures of our government from its proper role of securing unalienable rights be exposed and fully brought to light! May the unalienable rights of free speech and free press be protected from criminalization as sedition. May the right to trial by jury affording jury review of facts and law be reestablished and secured. And may liberty once again reign supreme across our land.
Pray that God would expose truth and exact justice in our land as concerns January 6 and everything else.
Cynthia Dunbar is an attorney, an author, a constitutional scholar, a Regent University professor of government, a former law professor at Liberty University, an ordained minister through the Federation of Ministers & Churches International, and an IFA board member. She and IFA President and CEO Dave Kubal co-host Constitutional Corner. Follow Cynthia on X or Instagram; view her videos on Freedom Focus; or schedule her here to speak at your next event. (Photo by Samuel Corum/Getty Images)