Of Daniel Shays and Donald Trump

On August 29th, 1786, the words “HIGH TREASON” appeared in the news section of Fowle’s New Hampshire Gazette. What was to be known as Shays’ Rebellion had begun. This was all too predictable, thought soon-to-be delegate to the Federal Convention Rufus King. And he thought it started squarely in one domain before the first mob stormed the first courthouse: fraudulent county conventions. He now prepared to take this understanding of treason, sovereignty, and insurrection to Philadelphia.

Early twentieth-century artist rendering of Shays’s Rebellion. (Photo credit: Wikimedia Commons)

      Those who have been following this series since its first and second installments may be aware that in discussing the question of whether January 6th would have been seen as an insurrection by the generation that drafted and ratified the Constitution, the analysis has been a post-hoc view only. Attuned readers will also remember that Donald Trump has been quoted several times in the previous installments of this series, always as an outside interpreter who pleads the most favorable case for the January 6th participants. We have asked if, looking back at the events in and around the capitol that day and examining analogous Founding-era precedents, January 6th would have been perceived as an insurrection to the Founding generation. Yet we have not asked one question: at what point did the insurrection begin? I answer that the January 6th insurrection actually began almost a month prior, on December 9th, 2020, with the creation of the fake-electors scheme. Until now, we have not officially examined Trump’s role in it. Thus, the topic of this article will be when the insurrection began and what role the former president had in its creation. To answer this question, we must look back to Shays’ Rebellion in order to see the clearest picture of what insurrection and treason meant to the fathers of our Republic.

      We all learned about Shays’ Rebellion in our high school American history classes. Revolutionary War veteran Daniel Shays, leading a group of poor farmers, attempted to seize the federal arsenal at Springfield, Massachusetts; the rebels were met by a privately funded militia backed by the state, were fired upon with cannon, and quickly dispersed, ending the rebellion in a day and galvanizing the nation into supporting the soon-to-meet Federal Convention in Philadelphia. Yet that is not an entirely accurate story. Yes, Shays led an armed group of farmers to seize the federal arsenal and, yes, the farmers were defeated by the government forces, but that was only the climax of the insurrection. The witnesses were unanimous that the insurrection had started half a year earlier at the end of summer. A lively constitutional conversation had been raging in newspapers, magazines, and letters since that time, debating at what point mere disobedience became insurrection. This is the story of that constitutional conversation, never before told. In more than five months researching this event, I have not found one historian who has picked up or taken note of this constitutional debate: when did Shays’ Rebellion begin?

“This is the story of that constitutional conversation, never before told. In more than five months researching this event, I have not found one historian who has picked up or taken note of this constitutional debate: when did Shays’ Rebellion begin?”

      It was a hot, humid August 15, 1786. Delegates from various towns in Worcester County walked to the meeting place of Leicester. They were hot, angry, and thirsty; the town was unusually hilly and the roads most uneven, causing fatigue as the delegates assembled. The fiery preacher, Deacon Willis Hall, stood imposingly over most of the delegates. He was a tall man with broad shoulders who was universally respected. He had filled numerous civil roles during the constitutional crisis with Great Britain and then as a patriot leader during the war. The convention elected him as president and began considering resolutions. The convention voted that itself was “lawful and constitutional,” the salaries of civil officers were “unreasonable and unnecessary,” and that the government’s location in Boston was “a grievance.” Yet under the moderating figure of Deacon Hall, the convention added a caveat: they were against all “mobs, riots, and unconstitutional combinations”; they urged the discontented to acquiesce in “peaceable submission to constitutional authorities”; and they promised that “this convention” would obtain a redress of grievances only through constitutional means. But not all men were as conciliatory as Deacon Hall. Once word spread of the Worcester Convention, it was hard to stop. In the words of one writer of the time, the state was “intoxicated with conventions.” Mere days afterward, more conventions met in Bristol, Hampshire, and Middlesex counties. The Hampshire county convention took it upon themselves to declare that the state constitution was defective and to establish correspondence with the nearby Bristol county convention and to empower an executive chairman who could call the county convention back into session at any time, not unlike the county conventions and committees during the emergency of 1774. That Bristol county convention voted that the execution of civil law was “too rigorous” and resolved to prevent the sitting of the court of common pleas “even at the risk of our lives and fortunes until a redress of the present grievances can be legally obtained.” Mere days later, a mob of 1,500 men and boys with swords, clubs, and guns surrounded the Northampton county courthouse, forcing it to adjourn without hearing any cases.

The explicit rebelliousness of the Bristol county convention aside, there was something particularly off about these conventions, even the ones that simply passed resolutions of judgment against the government. Despite claiming to speak for the people of the Commonwealth, they lacked delegates from some of the largest towns and commercial hubs within their counties, such as Concord, Cambridge, Worcester, Medford, and Bolton. These towns did not simply forget to appoint delegates; they seriously deliberated and thought out the nature and consequences of the county conventions. The conclusion they reached was that any attempt to claim legitimate authority—for example, by claiming to be electors of states not actually legally or judicially certified in an election—outside the defined constitutional procedures and branches of government, was seditious and subversive of free government itself. The people of Worcester township voted by a great majority that the Worcester county convention and all other pseudo-governing bodies and officials elected to them were “unnecessary and illegal, and of dangerous tendency to government at large.” Cambridge and Bolton sent a reply to the Middlesex conventioneers that they would use their “utmost endeavors to prevent the operations of government from being obstructed to gratify the restless disposition, or to promote the designing views of any party.” By the sound of the Bolton and Cambridge men, the mere meeting of delegates to debate grievances and draw up petitions and plans of action was sedition. To the people of Cambridge and Bolton it was the pseudo-government that meetings created that was the problem. As they explained in their reply, the towns were being asked to elect delegates just as they elected representatives to the Massachusetts legislature. Then, like official representatives, the delegates were to choose a presiding officer, sit on committees, and draw up, debate, and pass judgements on the state of the Commonwealth. This appeared too much like a parallel government, imperium in imperio, which would tear apart the fabric of society that government holds in order. Did they not already elect representatives who could be instructed and petitioned in individual town meetings? If someone was worthy of being sent to an unofficial convention to declare judgment on an official officer, perhaps that person should be chosen by the town at the next election instead of wasting time in a convention. Where did these conventions come from? Town representatives who legislated in Boston derived their power from the people, as expressed in a popular constitution providing rules of procedure. These county convention delegates had no such certification, nor was there any way to verify the legitimacy of their “elections.” How were these faux legislators to enforce the resolutions of their convention? If they could not give life to them, then the convention was illegal and merely trifling. If they attempted to use violence, like a government, to enforce them, then it was rebellion and treason. By the delegates claiming to be elected like official representatives, and meeting and sitting in mimicry of them, then a subtle usurpation was taking place. The town of Medford expressed “our disapprobation of such an unwarrantable attempt to take the public business out of the hands of those with whom the constitution has lodged it.” If the duly elected, legally confirmed authorities’ legitimacy could be doubted by intrigues of a party, then anarchy threatening the liberties and property of the people would take hold.

           It was in this same Shaysite tradition that Donald Trump and his cronies began the January 6th insurrection on December 9th, 2020. According to the January 6th Report the idea of alternate electors first appeared on November 18th, 2020. The idea was that if so-called alternate presidential electors met in the battleground state of Wisconsin on December 14th, the day electors must cast their votes, then they could provide standing for continuing litigation over the unfounded claims of election fraud. They were to be a tool for gaining redress by a federal court for supposed electoral grievances. Fair enough. But on December 9th, the plan had changed. Instead a new memo was written by Kenneth Chesebro outlining a conspiracy to use the fake electors as a means for former president Trump to retain power. The fake electors were to meet on the appointed day, December 14th, and copy the rules and regulations of their respective states’ procedures for presidential electors as closely as possible in order to fraudulently claim legitimacy. On December 13th Chesebro wrote an email detailing how the Trump electors were to be used to call into question the legitimacy of the election, to destroy public confidence in who legitimately was delegated the power of the people, and to create chaos on January 6th resulting in the fake Trump electors being chosen by the Vice President, thereby retaining Trump in power despite losing the election. Here is where the insurrection started: on December 9th, once the elector strategy transformed from judicial redress to deliberate subversion of lawful certification. The county conventions were likewise transformed! An anonymous writer in the Hampshire Gazette, styling himself “An Old Republican,” stated that because the county conventions did not just assemble the people but began to mimic the legislature and issue binding plans of political action, they then “usurp the lawful powers of the legislature.” To this writer the delegates to county conventions who presented themselves as elected officials were “wicked and designing men” who intended to “misrepresent public matters and thus to excite a false alarm in the minds of the people.” Just as a former president and his allies used the idea of alternate electors to cast doubt on the legitimacy of the election and foment sedition and anger among his supporters. “[F]rom such bodies in free states spring tyrants and oppressors,” he warned. The indictment served by the Arizona Attorney General to the fake electors in that state reveals that from the beginning fake electors were to be used as a symbol to disturb the minds of those who voted for Trump, giving them a reason to pressure, threaten, and delegitimize the certification process in Arizona and in Congress. If official office and constitutional, procedural government could be made “sport” or “fraud” whenever political fortunes did not go the way of those who had previously made a solemn oath to protect and defend said government, then “we shall have no security of property, liberty, or life itself,” as “Aristides” warned in an article. 

At his “Save America Rally” former president Trump again used the fraudulent fake electors to foment sedition among the rally-goes. In his speech he referenced how those listening had to “demand Congress [...] only count the electors who have been lawfully slated, lawfully slated.” By which he meant the fraudulent electors. He castigated the Supreme Court for not taking up his election cases. They were “going out of their way to hurt all of us and to hurt our country.” The former president was building up his speech toward its seditious climax. He was delegitimizing the institutions of government—institutions to which the people themselves elected representatives in order to ready them to attack said government. This was the same strategy of Shaysite leaders in delegitimizing proper democratic authorities, like the legislature, by setting up fraudulent county conventions. “A Citizen”  writing in the August 1786 edition of The Worcester Magazine warned against “desperate and unprincipled” men dragging unsuspecting people into doing “acts treasonable to the state” by “sowing sedition” through county conventions. “Publicus” agreed. It was the strategy of domestic and foreign tyrants to destroy the people’s confidence in their legitimate rulers by contesting sovereign institutions. “These are the motives, I doubt not, of many who have fomented these conventions, and led honest but unsuspecting men astray, and from the path of public duty.” If the people could be so deceived as to be totally disaffected by the legitimacy of their leaders, then “we must resign ourselves to the government of some foreign master; and they hope yet to triumph in the destruction of American liberty.” A free republic required the good-faith trust of citizens toward each other’s participation in the public weal, and the humility to entertain the idea that one’s biases may be underinformed.

      At the end of his speech the president laid out his signal of revolt. The participants had to “fight like hell.” They had to fight like hell because if they did not, they would no longer have a free nation. The free nation, according to the former president, was virtually gone already, because all institutions had been hijacked: the state governments, the judiciary, and finally the congress. His seditious tweets and speech had already delegitimized the institutions and prepared his audience for the final subversion. “When you catch somebody in a fraud, you’re allowed to go by very different rules.” This was, in effect, the open abandonment of the constitutional process. It no longer worked. A new one governed by “very different rules” had to be supplanted. It would be supplanted by the fraudulent electors, by arbitrary rulings of the president enforced by a mob. On August 29th, 1786, the words “HIGH TREASON” appeared in the news section of Fowle’s New Hampshire Gazette. Participants in the Hampshire County Convention had marched on the Northampton court and forcibly adjourned it only a week following the convention. What was to be known as Shays’ Rebellion had begun. This was all too predictable, thought soon-to-be delegate to the Federal Convention Rufus King. And he thought it started squarely in one domain before the first mob stormed the first courthouse: fraudulent county conventions. He now prepared to take this understanding of treason, sovereignty, and insurrection to Philadelphia, where it would shape our constitution.