Founding-Era Dictionaries v. Donald Trump

The fact is, to the generation who drafted and ratified the Constitution—a constitution that empowers Congress to “suppress insurrections”—January 6th could not have been perceived as anything but an insurrection against the federal government. The Founding generation was brought up in the tradition of English law in which the words “insurrection,” “rebellion,” “riot,” and “treason” all had commonly definable meanings and were interconnected.

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy, 1940, oil on canvas. (Photo: Wikimedia Commons)

The Supreme Court’s ruling in Trump v. Anderson, which held that states cannot self-execute Section 3 of the Fourteenth Amendment, along with the Court granting certiorari in Trump v. United States to decide whether the former president enjoys presidential immunity from prosecution relating to crimes committed in office leading up to and resulting in the January 6th attack on the United States Capitol, leaves the lingering question: Was January 6th truly an insurrection? There is an urgent need for voters to form a clear judgment on this, since former president Trump downplays and even pushes a competing history of January 6th by calling those arrested “hostages” and promising to unconditionally pardon them; calling January 6th “beautiful” despite the attempt to lynch his own vice president; playing an eerie and downright ghastly rendition of the national anthem sung by those imprisoned for their actions on January 6th; and finally, promising “retribution” against those who prosecuted and jailed January 6th participants. If January 6th was not an insurrection against the laws, government, and Constitution of the United States, then the former president’s comments might be defended or qualified as merely colorful, eccentric, or perhaps even merciful if one is open to the argument of individuals like Tucker Carlson that the prisoners were “patriots” who were set up, ambushed, and persecuted by an overreaching oppressive government. If, however, January 6th was an insurrection, then Trump’s comments are dangerous, inexcusable, and threaten the foundations of republican government—and he should be nowhere near power again.

In a series of articles, I intend to offer to the public historical guidance that, I hope, will aid some of my countrymen in coming to a definitive conclusion on the January 6th question and thereby better facilitate the exercise of their right—and solemn civic duty—to vote. I will take at their word those who dismiss January 6th as a mere riot and compare their objections to founding era dictionary definitions, practices, correspondence, newspaper accounts, and history of insurrections. The immediate objection to starting this series is that the original meaning from the drafting and ratification of the Constitution does not matter, but only the meaning from the Civil War and Reconstruction period should occupy our time. Yet, the historical record, as illustrated by constitutional historians such as Mark Graber,  Akhil Amar, and Eric Foner, shows there was a legal consensus of what constituted an insurrection under the Constitution from the Framing to Reconstruction. The Framers of the Fourteenth Amendment did not believe they were creating any new constitutional definition of insurrection. Instead they were repurposing the understandings of insurrection and federal power already present in the Constitution under Article I, Section 8, Clause 15 and Article IV, Section 4, and simply adding a new, stronger, near-permanent civil penalty, disqualification.

There is a common string of arguments used by those politicians and pundits who downplay the historic constitutional significance of January 6th. We will examine a select few, with others appearing and reappearing in subsequent posts. One argument is that the scale of January 6th inhibits any attempt to classify it as an insurrection. According to this view, an insurrection must be an event so large and dispersed over national territory as to require the armed forces to crush it. Most of those who use this line of argument invoke the Civil War or the Whiskey Rebellion, both of which required a federal occupation of hostile territory. Some argue that the relatively brief length of time between the storming of the Capitol and its securement by city and federal agents disqualify it as anything more than a riot.

Those who downplay the attack on the capitol attempt to instead portray it as a mere protest that got out of hand or a short-lived riot. These comments are usually qualified with a series of whataboutist statements decrying the media’s neglect to treat the Black Lives Matter riots and protests of 2020 with similar severity. The common argument here is that since the damage to property, persons, and police was so much worse in material terms, and those were not deemed insurrections, then January 6th should not be classified as one either.

The fact is, to the generation who drafted and ratified the Constitution—a constitution that empowers Congress to “suppress insurrections”—January 6th could not have been perceived as anything but an insurrection against the federal government. The Founding generation was brought up in the tradition of English law in which the words “insurrection,” “rebellion,” “riot,” and “treason” all had commonly definable meanings and were interconnected. Let’s start by examining the word “riot” to see whether the Founding generation’s verbiage would be compatible with how much of the modern American right apply it to January 6th. Samuel Johnson’s Dictionary (1773), perhaps the most popular grammatical English dictionary in the eighteenth century, defines it briefly as “a sedition; an uproar” and “to be tumultuous.” This would seem to apply to January 6th, but it is much too short a definition. The next most popular grammatical dictionary, Bailey’s An Universal Etymological Dictionary (1763) provides a more precise definition: “the forcible doing of an unlawful act, by three or more persons met together for that purpose.” This definition offers a clearer view of what constitutes a riot, albeit lacking depth; however, neither Johnson nor Bailey were attempting to give legal guidance. They had the immense task of single handedly producing accessible dictionaries for the common English speaker and thus had neither the time nor the need to provide a substantial legal definition, given the availability of law dictionaries.

Examining the three most popular legal dictionaries of the Founding generation provides much needed clarity in distinguishing riots from any other unlawful act of persons. Giles Jacob’s New Law Dictionary was the most published of these by the time of American Independence. Giles defines riot as “when three or more Persons, assembled together, do some unlawful Act of a Private nature, with force and violence […] And this force must relate to some private Quarrel only; for if the Intention of such Assemblies is to redress Grievances of a publick Nature […] it is levying war […] and treason.” Thomas Blount’s A Law Dictionary and Glossary (1712) similarly defines riots as groups of individuals jointly committing unlawful acts and crimes of purely private disputes and disagreements. Finally, Timothy Cunningham’s General Abridgement of the Law (1764) defined riot as “a tumultuous disturbance of the peace, by three persons, or more, assembling together of their own authority […] in the execution of some enterprise of a private nature.”

According to these understandings of the word riot, January 6th cannot be considered a mere protest that got out of hand or a short-lived riot, because the insurgents at the Capitol were not quarreling over a private matter. They were violently attempting to force Congress and the Vice President to redress their grievances. In Mike Pence’s situation, it was under pain of death.

Greg Jacob and Judge Michael Luttig provide testimony at the January 6th Select Committee hearing. (Photo: Final Report of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol)

If January 6th was not a riot, does that necessarily mean it was an insurrection? To answer this question we must again turn to popular eighteenth-century grammatical and legal dictionaries. Samuel Johnson’s Dictionary defines “insurrection” as “a seditious rising; a rebellious commotion.” Thomas Sheridan’s A Complete Dictionary of the English Language (1789) provides the same definition. The key word is “seditious.” What does it mean to be seditious, to engage in sedition? According to Johnson and Sheridan, it means to be “factious with tumult,” while Bailey’s An Universal Etymological Dictionary adds that it is also to be “mutinous” and “factious.” When we compare the facts of January 6th with these Founding-era definitions, there is no question January 6th would have been seen as an insurrection by the Founding generation. Those who attacked the Capitol did so to force political policy through violence, instead of through the peaceful medium of the ballot box. They were openly part of a political faction. Despite disinformation to the contrary, Antifa was not present at the Capitol. Conversely, supporters of former president Trump’s faction were open about who they were and what their intentions were on that disgraceful day (for more see here, here, and here). January 6th was therefore an insurrection.

The aforementioned legal dictionaries of the era—Blount’s, Cunningham’s, and Giles Jacob’s—provide firmer ground for the charge that January 6th was an insurrection than do the grammatical dictionaries. Insurrection was not something defined in and of itself in these legal dictionaries but instead was used interchangeably with the word “rebellion,” and rebellion, of course, was treason. Therefore we must look at both words together. Giles Jacob’s New Law Dictionary, Thomas Blount’s A Law Dictionary and Glossary, and Timothy Cunningham’s General Abridgement all defined rebellion as “[t]aking up Arms traitorously against the King.” These dictionaries agree that a “rebellious assembly” or an assembly of which a rebellion against government begins, constituted “a Gathering of twelve persons, or more, intending or going about to practice or put in Use unlawfully, of their own Authority, any Thing to change the Laws or Statutes of the Realm.” The insurrectionists of January 6th were more than twelve persons and attempted to threaten and force Vice President Pence and Congress to overturn the election results and declare Trump duly elected as president for a second time, or at the very least to cause so much chaos that January 20th passed with a congressionally certified president, allowing Trump stay in office past the constitutional deadline, thereby executing  a coup. One may object by zeroing in on the requirement that a violent uprising to force a change of law had to be against the king. But as Thomas Paine aptly noted, “In America the Law is King,” and the Constitution is acknowledged to be the supreme Law of the Land.

But what of treason? All legal dictionaries of the Founding era listed levying war against the government or offenses committed against the “security of the kingdom” as constituting treason, but Giles Jacob’s New Law Dictionary provided the most comprehensive exposition of what that meant in practice within the English tradition. “It hath been adjudged, that he who intendeth by Force to prescribe Laws to the King, and to restrain him of his Power,” wrote Giles, “doth intend to deprive him of his Crown and Life.” Even if there is no open intent on the life of the rulers of the government (in this case the king) it is still treason because “a Rebel would not suffer that king to reign and live” who would refuse the traitor’s demands. Had Congress and the Vice President somehow gotten into the mob’s hands on January 6th, would that mob have allowed them to live if they refused to certify Trump as winner? The answer is shocking to a loyal citizen’s mind and reveals what ought to be acknowledged by all: that January 6th was an insurrection. Giles writes that to oppose “Constables or Guards,” such as the Capitol Police, with a force of individuals for “any Publick end or Purpose,” such as to keep a president in power, and “putting themselves in a posture of war,” such as the wearing of tactical gear, vests, and helmets, “is high Treason.” Indeed, anyone, according to Giles, who attempts to “redress a publick Grievance, whether real or pretended” or to “reform the Law” by “private Authority,” which ought to only be done by “publick Justice,” does “make an Insurrection.”

In subsequent posts I intend to further illustrate the Founding generation’s understanding of insurrection and riot by examples from pre-ratification history shortly before the Constitution. But for now I hope this unveiling of dictionaries that were well-known to and owned by the Founders will provide some clarity to how one ought to interpret January 6th.