“Southern gentlemen who led in the late rebellion have not parted with their convictions at this point, any more than at any other…They believed in slavery and they believe in it still. They believe in an aristocratic class, and they believe in it still…”

-Frederick Douglass, Composite Nation, 1869

“Big protest in D.C. on January 6th. Be there, will be wild!”

As far as incitement of insurrections go, this was an inauspicious start. Due to its timing, just before the certification of the 2020 presidential election, and the social media post’s author—a sitting U.S. President–the post did not go unnoticed. Law enforcement and intelligence services across the capitol region reached out to each other in a measured panic. Surely this was not a call for resistance to a peaceful transfer of power by a sitting president? The potential for violence at this gathering was discussed and either dismissed or qualified. The agencies briefed and prepared relevant parties as best they could. The actions that were threatened by the group constituted a clear and present danger to the electoral processes of the United States. The leadership of the gathering had made their intentions and goals known, while the peaceful transition of power hung in the balance. No government actor seemed comfortable accusing a sitting president of inciting an insurrection against the Constitution of the United States; a violation of his oath of office and duties as a citizen. By the time members of Congress were being told to remove their American flag pins to make themselves less identifiable by the insurrectionists, those walking the Capitol building’s halls knew better.

The Congress of 2021 found itself in the same position as the Congress of 1865, emerging from the zenith of conflict that divided a nation, now faced with questions as to how the nation would continue to function. In the aftermath of the January 6th insurrection at the U.S. capitol, members of Congress turned their attention to how best to prevent such an act from occurring again. The House impeached the president. Congress passed the Electoral Count Reform Act of 2022 that clarified the role of the Vice President in certifying an election. There were still questions of how to bring the perpetrators to justice. As the FBI and other agencies began the task of rounding up those involved, some began to question why they were targeting the perpetrators and not the organizers of the gathering. Cases still under consideration in the court system seemed unlikely to prevent the ascendancy of the leader of this insurrection back into power. This eventuality had not only been predicted but planned for by the Congress of 1866, and they had left a tool for preventing it.

The Thirteenth, Fourteenth, and Fifteenth Amendments, along with the Freedmen’s Bureau, the Ku Klux Klan Acts of 1870 and 1871, and the Civil Rights Bill of 1875 act as an intentional bridging of the gap between the idealistic language of the nation’s founding and the text of the Constitution. It was a project of both the schools of Originalism and Textualism to have the words reflect the promised liberties and end the debate over the balance of power between state and federal governments. While rebuilding a nation devastated by war, these Amendments and acts of Congress also dealt with the immediate threats posed by the remaining Confederate sympathizers.

No better example of this can be found than in Section III of the Fourteenth Amendment:

“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.”

The Fourteenth Amendment provides something rarely seen in the study of the U.S. Constitution: foresight. The drafters sought not just to cure past ills but prevent the harms to come. This purpose of the Reconstructionist Framers has been seemingly ignored by contemporary courts. They have established a poor patchwork of precedent limiting power federally while expanding it for states; a direct contradiction of the legislative intent. In its recent decisions the United States Supreme Court has determined Section III of the Fourteenth Amendment enables legislation federally while also allowing a state action to stand against an insurrectionist. The definition of the word “insurrection” has become key to determining who is and who is not barred from office. While Section III also bars from office those who give “aid and comfort” to enemies, internally those enemies must also be insurrectionists or rebels. The ability to define “insurrection” with sufficient constitutional clarity is a key part of enabling legislation that could be passed by Congress. Any judicial review could deem the legislation’s definition of “insurrection” as unconstitutionally overbroad or over vague. The states should be allowed on their own to determine what is and is not “insurrection” as a prequalification; for weaponization of that term may likely follow. Either side of the political aisle could reach back through history for a definition suited to their current partisan needs.

Despite persistent arguments about what constitutes an officer under the Constitution, whether Section III remains legally enforceable, and who should enforce Section III, Section III of the Fourteenth Amendment’s power and meaning hinges on a much simpler point: what constitutes “insurrection?” This point will be examined and clarified. To do so, the historical background of Section III will be explored and its legislative history examined. The Section III disqualification cases dated from its ratification will be summarized and analyzed. The proposed definitions from this examination and academics will be compared and contrasted, along with the differing theoretical frameworks the definition could be reached under. A proposed model definition for use by State and Federal legislation will be synthesized. A matrix of potential historical and contemporary insurrectionists will be created and analyzed to better show the impacts of the proposed definitions.