Debate

Mark A. Graber has spent over a decade researching the framing of Sections Two, Three and Four of the Fourteenth Amendment.

1v2 Debate

1. The Constitution is the Supreme Law of the Land. Historical argument to understand when the Amendment was drafted is essential. When Section Three was drafted, an insurrection involved:
   1. An assemblage
      1. “A combination, or conspiracy by which different individuals are united in one common purpose.” by Justice Benjamin Curtis, 1861 - Charge to Grand Jury—Neutrality Laws and Treason (Curtis), 30 F. Cas. at 1025, taken from the prior paper.
      2. “If a body of people conspire and meditate an insurrection to resist or oppose the execution of any statute of the United States by force, they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, they are guilty of the treason of levying war, and the quantum of force employed neither lessens nor increases the crime; whether by 100 or 1,000 persons is wholly immaterial.” - Justice Samuel Chase, 1800, Case of Fries, 9 F. Cas. at 931.
      3. “On what sound principle, then, can we say judicially that the levying of war ceases to be treason when the war becomes formidable? that war, levied by ten men or ten hundred, is certainly treason, but is no longer such when levied by ten thousand or ten hundred thousand? that the armed attempts of a few, attended by no serious danger to the Union, and suppressed by slight exertions of the public force, come, unquestionably, within the constitutional definition, but attempts by a vast combination, controlling several States, putting great armies in the field, menacing with imminent peril the very life of the Republic, and demanding immense efforts and immense expenditures of treasure and blood for their defeat and suppression, swell beyond the boundaries of the definition and become innocent in proportion to their enormity?” - North Carolina Supreme Court, 1867, Shortridge v. Macon
   2. Resisting any law or interfering with the course of a government proceeding
      1. “An insurrection against the United States required resistance to “any statute” or “some public law of the United States.” Curtis reminded a grand jury: “The law does not distinguish between a purpose to prevent the execution of one, or several, or all laws.” An insurrection could be directed at a legislature as well as at executive officials. William Rawle declared an effort to “coerce repeal of a general law” to be “an overt act of levying war.” Justice Field’s opinion in Greathouse held that any effort to “coerce [the] conduct” of government constituted an insurrection.” Page 27
   3. By force or intimidating
      1. “the most comprehensive definition of levying war against the king, or against the United States, which I have seen, requires an assemblage of men, ready to act, and with an intent to do some treasonable act, and armed in warlike manner, or else assembled in such numbers, as to supersede the necessity of arms.” - Justice Marshall, 1807.
   4. For a public purpose
      1. “Judge John Kane’s charge to the jury spoke of “insurrections to redress by force national grievances; or to reform real or imaginary evils of a public nature.”” Judge John Kane, 1800, *Case of Fries
2. January 6th, 2021
   • There was an assemblage.
     • Hundreds of people breached the Capitol Building and thousands trespassed on federal land.
   • There was clear resistance to federal law.
     • The trespassers intended to disrupt the proceedings mandated by the Electoral Count Act.
     • Anderson v. Griswold states, “substantial evidence in the record showed that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment and from certifying the 2020 presidential election.”
   • The resistance made extensive use of force.
     • Many in the mob engaged in crimes of violence or threatened crimes of violence. The Colorado Supreme Court stated, “[T]he mob repeatedly and violently assaulted police officers who were trying to defend the Capitol.” Calls to “Hang Mike Pence” did not suggest an attempt to achieve goals by rational persuasion.
   • For a public purpose
     • The public purpose was resisting a stolen election.
3. Possible Counters
   1. Defining insurrection in a personal way.
      1. His definition is irrelevant, what matters is the historical and legal definition used at the time.
   2. Claiming BLM/protests/whatever the fuck must have also been an insurrection.
      1. Need to ignore/not engage on a single other event unless he fully concedes the argument on J6.
   3. “It wasn’t going to work, so it wasn’t an insurrection.”
      1. Insurrections are not defined by their success or fail rate.
   4. “Why was no one charged with insurrection?”
      1. Individuals are charged with or not charged with crimes for a variety of reasons, that has no bearing on whether the event itself would be characterized as an insurrection.
4. “The Colorado Court found that Donald Trump acted as part of an assemblage that he helped bring into being; that Trump was resisting the enforcement of federal and constitutional rules, that Trump took numerous illegal actions to prevent the peaceful transition of presidential power; that Trump engaged in an ongoing course of conduct aimed at producing violent resistance to the peaceful transfer of presidential power; that Trump was attempting to incite his supporters to attack Congress; and that Trump’s speech occurred sufficiently close in time and place to when and where the insurrection took place to be considered an incitement.”