Treason, Insurrection, and Disqualification: From the Fugitive Slave Act of 1850 to Jan. 6, 2021

Mark A. Graber
Monday, September 26, 2022, 8:01 AM

An expert witness on the first Jan. 6 disqualification case of Couy Griffin walks through the history of insurrection.

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On Sept. 6, Judge Francis Mathew, a state district court judge in New Mexico, disqualified Couy Griffin, an Otero County commissioner who enthusiastically participated in the events of Jan. 6, 2021, from holding office under Section 3 of the 14th Amendment. That clause provides: “No person ... shall hold any [state or federal] office, who, having previously taken an oath, as [a state or federal officer] 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.” If someone has taken the oath of office—whether or not that person is currently in office—and later “engage[s] in insurrection or rebellion,” that person is constitutionally prohibited from holding any state or federal office in the present or future. 

State v. Griffin is an important test case for efforts to disqualify elected or formerly elected officials who supported the Jan. 6 insurgents from holding or seeking public office—including any efforts to block Donald Trump from appearing on ballots in the 2024 presidential election. Although the Griffin decision is not binding law outside of a judicial district in New Mexico, Mathew’s opinion provides a foundation for current or future legal actions seeking to disqualify past or present Republican officeholders under Section 3 of the 14th Amendment. Citizens for Responsibility and Ethics in Washington, which litigated the Griffin case with assistance from prominent law firms in Washington, D.C. and New Mexico, and other public interest associations, is likely to bring lawsuits against other officeholders “leagued” in some way with the insurgents who invaded the Capitol grounds and building. (One such group has already written letters to all 50 secretaries of state urging them not to permit Trump’s name to appear on state ballots in 2024.) 

Will these other cases succeed? Their outcomes will, of course, depend on the facts—but also on the presiding judge’s interpretation of Section 3’s disqualification provision. In the case of Couy Griffin, Judge Mathew found that disqualification was proper after interpreting the provision (a) to apply to an organized effort to resist the execution of any federal law by force, violence, or intimidation, even if the participants did not attempt to overthrow the government of the United States; and (b) to extend to persons in league with those who were violent, even when they were not personally violent. 

Griffin had argued that Section 3 was limited to efforts to overthrow the government of the United States and, further, that he could not be disqualified because he had not personally been violent on Jan. 6. His objections raise the key interpretive questions judges will need to answer in these cases. First, what constitutes the kind of “insurrection or rebellion” that a defendant must have “engaged in”? Second, can a defendant “engage in” or “give aid or comfort” without having personally engaged in violence?

As an expert witness for the plaintiffs in the Griffin litigation, I was asked to testify on those very questions. My role was to provide the historical understanding of these terms at the time of their enactment, shortly after the end of the Civil War, to inform the judge’s interpretation of Section 3’s disqualification provision. This article details that analysis. 

The Meaning of “Insurrection” in the Antebellum Period

Legal analyses of the term “insurrection” began early in the history of the United States, well before Congress inserted that word into Section 3 of the 14th Amendment. Supreme Court justices—either as a group or as individuals riding circuit—issued relevant opinions respecting the Whiskey Insurrection of 1794, the Fries Insurrection of 1799-1800, and the Burr Conspiracy that took place during the first decade of the 19th century. Unlike many contemporary Americans, 19th-century legal analysts did not understand the term “insurrection” to be limited to attempts to overthrow the government. Rather, following English law, they equated “insurrection” with “levying war,” and defined “levying war” as any organized resistance to governmental authority.

This interpretation was most clearly articulated in case law involving the Fugitive Slave Act—specifically, in judicial charges to grand and trial juries in cases in which the federal government brought treason charges against individuals who made organized attempts to rescue persons alleged to be fugitive slaves. One prominent case occurred after free African Americans in Christiana, Pennsylvania, resisted Edward Gorsuch’s effort to capture four persons Gorsuch claimed as his slaves, killing Gorsuch in the process. Administration officials sought to indict 41 Christiana residents for treason. 

Boston was another hotbed of opposition to the Fugitive Slave Act. Facing increased resistance to federal rendition efforts and a mob that had freed a person claimed as a fugitive slave, federal prosecutors and judges turned to the law of treason. Federal judges instructed grand juries to hand down treason indictments for participants in organized efforts to prevent slaveholders from returning to bondage persons they claimed as their slaves.

Because Article III defines treason in part as “levying War against [the United States],” courts in these cases had to interpret the key term “levying war.” In doing so, judges often relied on the term “insurrection.” For example, in the Case of Fries (1800), auctioneer John Fries led an insurrection of western Pennsylvania farmers who opposed a federal excise tax. Fries and his allies were captured after they repeatedly threatened tax collectors and sometimes burned down their houses. Supreme Court Justice Samuel Chase, who presided over the trial, charged the jury: “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” (emphasis added) and “they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war.” Supreme Court Justice Robert Grier in United States v. Hanway (1851) quoted Chase when he wrote that an “insurrection to resist ... the execution of any statute of the United States by force” (emphasis added) constituted “levying war.” 

These cases using treason to prosecute resistance to the Fugitive Slave Act were not isolated. Executive and judicial branch officials in the decade before the Civil War insisted that persons who prevented government officials from implementing the Fugitive Slave Act of 1850 were “levying war”—that is, committing treason—against the United States. 

Four judges were particularly influential in shaping the understanding of treason during this era: federal district court Judges John K. Kane and Peleg Sprague and Supreme Court Justices Benjamin Robbins Curtis and Robert Grier. 

Kane, Grier, Sprague, and Curtis all agreed on the constitutional law of treason. The constitutional definition of treason was derived from English law, most notably the Statute of Treasons passed in 1352. The U.S. Constitution declared only two of those acts to be treason: “levying war against the United States” and “providing aid and comfort” to the enemies of the United States. The four judges insisted these provisions be interpreted as they were understood in England. “Levying war against the United States,” they concluded, occurred when an assemblage resisted any federal law or all federal laws by force, violence, or intimidation, for a public purpose. 

The 19th-century understanding of “levying war” was more expansive than contemporary analysts might realize. Federal judges in the 1850s maintained that organized resistance to federal law—not an effort to overthrow the government—was the linchpin of treason. “The words ‘levying war’ include not only the act of making war for the purpose of entirely overturning the government,” Curtis informed grand jurors in Massachusetts, “but also any combination forcibly to oppose the execution of any public law of the United States.” The judge’s instructions continued: “I hardly need inform you that it is not material what law of the United States is thus resisted. We can know no distinction between one law of the United States and another.” Constitutional government depended on the sanctity of all laws. Official or private decisions about “what laws should be executed, and what might be resisted with impunity,” would leave citizens of the United States “no longer under a government of laws, but under a government of men.” Another judge wrote that “any combination forcibly to prevent or oppose the execution or enforcement of a provision of the constitution or of a public statute” was a levying of war against the United States. Organized forcible resistance to federal parking laws (then concerning stabling horses) was as much treason as the organized forcible resistance to the federal tariff laws that sparked the nullification crisis. Any resistance to any federal law, mid-19th-century federal justices reasoned, was resistance to all federal law. Sprague maintained that “it is entirely to overthrow the government as to one of its laws.”

Federal judges believed insurrections occurred even when organized resistance to federal law was done by associations without any trappings of the military. An assemblage occurred whenever a group had a common purpose to resist a federal law. Grier stated that a specific “number or array of troops” was “not necessary” for an insurrection or a levying of war. Actual violence was no more necessary to sustain a charge of treason. Kane, Grier, Sprague, and Curtis found a “conspiracy” or “combination” bent on resisting federal law sufficient when that conspiracy involved force or “intimidation by numbers.” For instance, in the case involving Gorsuch’s killing, described above, had the federal marshals accompanying Gorsuch refrained from capturing the person Gorsuch claimed was a fugitive slave because the organized resistance had superior number or arms, the members of the resistance would still have been levying war against the United States. “The presence of numbers who manifest an intent to use force,” Curtis explained to the grand jury, “may compel submission to that force ... though no shot was fired or blow struck.” Persons “levied war” against the United States when they forcibly resisted the execution of federal law.

But 19th-century case law also held that an uprising had to be motivated by a “public purpose” in order to constitute “levying war” or “insurrection.” This public purpose distinguished treason or insurrection from ordinary crimes. As Grier stated, insurgents had to intend to “affect something of a public nature, to overthrow the government or nullify some law of the United States.” Participants in a constitutional insurrection, he instructed one jury, seek “to redress by force national grievances; or to reform real or imaginary evils of a public nature, and in which the insurgents had no private or special interest.” Organizations committed to rescuing people escaping slavery satisfied that condition if they were committed to rescuing any claimed fugitive in their neighborhood. By contrast, burglars resisting arrest were not traitors—their actions were motivated by profit rather than by philosophical or constitutional objections to private property. 

In the then well-known case of Hoxie v. United States (1808), Frederick Hoxie was acquitted of treason because his motive for murdering a federal official implementing the Embargo Act of 1807 was self-interest. Hoxie wanted his impounded boat back. He had no desire to resist the Embargo Act in any other context. 

Curtis explained the rule of Hoxie as follows: While members of a mob simply bent on preventing the arrest of a friend would not be guilty of treason, they would be insurrectionists if their design was “to prevent any person from being arrested under that law.” Thus, had Hoxie organized persons to repossess any boat in the area impounded by federal officials under the Embargo Act, he would have been a traitor as well as a murderer.

When confronting resistance to the Fugitive Slave Act, federal judges adopted the common law rule that in treason, all involved are principals—there are no mere accessories. Ordinarily, a person who gives a gun to a friend knowing the friend intends to murder someone is an accessory to murder, but not a murderer himself. But a person who gives a gun to a friend knowing the friend intends to participate in an insurrection is as much a traitor as the friend. Sprague and Curtis both stated, “All those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” A person was “leagued” with insurgents when they performed an act knowing that act would make some contribution to the insurgency. Marching with insurgents knowing their purpose was sufficient. Each additional body added to the intimidation factor, even if that body did not engage in any violence. Playing in the band, so to speak, was sufficient for the same reason. Giving insurgents directions knowing their purpose was treasonous. Grier concluded that “in treason all are principals , and a man may be guilty of aiding and abetting though not present.”

Those who spurred insurgents to action did not enjoy First Amendment immunity from the law of treason. “Influential persons,” Curtis informed a grand jury, “cannot ... excite the passions of the ignorant and unreflecting, ... incite them to action, supply them with weapons, and then retire and wait in safety the result of the violence.” The common law rule that accessories to treason were traitors enmeshed the orator as much as the drummer. Curtis declared, “Those who have the wickedness to plan and incite and aid ... are justly deemed guilty of this offence, though they are not present at the immediate scene of violence.” Free speech rights in the 19th century did not protect persons who inspired insurrections. Those who “counsel and instigate others to acts of forcible oppugnation to provisions of a statute,” Kane agreed, were as guilty of treason when forcible oppugnation occurred as those who engaged in the actual violence.

In short, legal authorities on the eve of the Civil War agreed that persons “levied war” against the United States whenever they forcibly resisted the execution of any federal law because they believed the law oppressive or unconstitutional. All persons who participated in any way in the forcible resistance were traitors, even if they behaved peaceably or were not even at the scene of the crime. 

The leading legal treatises published between the ratification of the Constitution and the ratification of the 14th Amendment endorsed the law of treason advanced by federal judges. Such luminaries as Joseph Story, William Rawle, William Duer, Simon Greenleaf, Francis Lieber, and Nathan Dane agreed that organized resistance to any federal law was treason when the resisters had a public purpose, and that all people leagued with such insurgents were traitors. Rawle wrote that “an insurrection, the object of which was to suppress an office of excise established under a law of the United States,” was “a levying of war against the United States.” Supreme Court Justice James Wilson informed his law students, “In treason, there are no accessories whether before or after the fact; for all consenters, aiders, abettors, and knowing receivers and comforters of traitors, are themselves principals.”

The Meaning of “Insurrection” and “Giving Aid and Comfort” During the Civil War and Reconstruction

Federal and state justices during the Civil War and Reconstruction adopted the definition of treason championed by federal justices during the 1850s, often citing Grier and Curtis in support of their conclusions. Supreme Court Justices Stephen Field and John Catron repeated the basic elements of treason when charging grand juries. “The words ‘levying war’ in the Constitution are not restricted to the act of making war for the entire overthrow of the Government,” Field stated, when charging a grand jury, “but embrace any combination to prevent, or oppose by force, the execution of a provision, either of the Constitution of the United States or any public statute of the United States.” Catron, when charging a grand jury, declared that the “conspiracy and the insurrection connected with it must be to effect something of a public nature” (emphasis added). Both justices maintained that all persons who made any knowing contribution to an insurrection committed treason. Catron quoted Curtis’s insistence that “all those who perform any part, however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” 

Federal district judges during the Civil War provided grand juries with similar charges. (Examples are here and here.) Their broad legal understanding of “insurrection” and “levying war” is significant. A narrower definition of treason would have sufficed. Confederates were attempting to overthrow all federal authority in the seceding states. Nevertheless, justices during the Civil War insisted that overthrow was not necessary for treason; all that was required was resistance to a single federal law if the other elements of treason were present.

Legal commentary during the Civil War supported this judicial understanding of “treason,” “insurrection,” and “levying war.” Francis Lieber refused to confine insurrections or levying war against the United States to efforts to overthrow the government. His influential “Instructions for the Government” described an “insurrection” as “the rising of people in arms against their government, or a portion of it, or against one or more of its laws, or against an officer or officers of the government.” Daniel Agnew, in a widely circulated pamphlet, quoted Chase’s opinion in Fries for the proposition that “[i]f a body of men conspire or mediate an insurrection to resist or oppose the execution of any statute of the United States by force” and “they proceed to carry such intention into execution by force, they are the guilty of treason by levying war.” The commentators agreed on the rule that “in treason, all are principals.” Agnew quoted the antebellum consensus that “all those who perform any part, however minute, or however remote from the scene of action, and are actually leagued in the general conspiracy, are to be considered traitors.”

That the Reconstruction Republicans who drafted Section 3 of the 14th Amendment self-consciously incorporated the constitutional law of treason is hardly surprising. The relevant text declares, “No person ... shall hold any [state or federal] office, who, having previously taken an oath, as [a state or federal officer] 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.” The reference to “engaged in insurrection or rebellion” and “given aid and comfort” tracks Article III’s declaration that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Modern analysts should read this language with the important proviso—as noted in Fries, Hanway, and other judicial decisions discussed earlier—that Americans judges, lawyers, and legal commentators understood “engaged in insurrection” as “levying War.” 

The drafters of Section 3 of the 14th Amendment intended to bar from office anyone who participated in an insurrection, not just Confederates who had fought in the Civil War. The original version of Section 3 would have disenfranchised in federal elections held before July 4, 1870, “all persons who voluntarily adhered to the late insurrection, giving it aid and comfort.” Reps. Samuel McKee of Kentucky and James Garfield of Ohio proposed bans on officeholding that would have been limited to “all persons who voluntarily adhered to the late insurrection.” The final version of Section 3, however, speaks of insurrections generally, making no reference to the “late insurrection.” No public debate took place on this textual choice, but the plain inference is that past and present officeholders who engaged in any insurrection were disqualified from holding office in the present and future. 

Though Americans eventually lost their appetite for enforcing Section 3 during the 1870s, they continued to understand insurrections as less than an overthrow of the government. For instance, President Ulysses Grant described as “insurrections ” several white supremacist efforts in the postwar south to resist by force laws promoting racial equality, even though those uprisings did not repeat the failed secession and Civil War experiment. 

Early applications of Section 3 illustrate how broadly participation in an insurrection was understood at the time. For example, Amos Powell’s defense to disqualification under Section 3 was that he had not fought against the United States but, rather, had procured a substitute to join the Confederate army in his place. “This fact,” the charging judge in United States v. Powell (1871) declared, “if proved without explanation, would, of itself, be sufficient to show the defendant was engaged in the Rebellion.” Another illustration is the case of Francis Thomas. He was unquestionably loyal to the Union. His son, however, was not. Unable to persuade his son not to join the Confederate army, Thomas gave the boy some money to cover emergencies. The Reconstruction Congress refused to seat Thomas when he became senator-elect from Maryland on the ground that giving money to a family member who was in the Confederate army provided aid and support to the enemies of the United States or engaged in an insurrection against the United States.

Applying Section 3 Today

Though there is a lack of case law exploring disqualification under Section 3 of the 14th Amendment, there is a robust body of law exploring the meaning of the key terms in that section. The framers of the 14th Amendment purposely used terms whose meaning had been well developed through cases, especially jury instructions, in Fugitive Slave Act cases. This case law should at least provide the starting point for thinking about whether former state or federal officeholders who participated in the events of Jan. 6, 2021, should be disqualified from office under Section 3 of the 14th Amendment. 

Much of the facts of Jan. 6 are now public. There was an assemblage of persons who illegally trespassed on federal property. That assemblage was resisting the execution of the constitutional and legal processes for declaring Joe Biden the winner of the 2020 presidential election. The persons who invaded the Capitol or lent support to that invasion were motivated by their belief that the presidential election was stolen. They sought to achieve their goal by violence, force, or intimidation by numbers. The trespassers who did not personally attack police officers or destroy property cheered and enabled the vicious assault of law enforcement officials and wanton vandalism. Their mere illegal presence on federal property helped intimidate and overwhelm government officials. 

Trump’s disqualification raises more complicated issues. One complication is that his involvement with the Jan. 6 insurgents is not fully known. Trump was aware of violent threats on Jan. 6, gave a speech that day that incited the protesters to head to the Capitol, exhibited no concern when the protesters became a mob that invaded the Capitol, and did nothing for hours to assist law enforcement efforts. The extent to which Trump helped plan or instigate the insurgents beyond his speech, however, is controversial and still being investigated by Congress. 

A more serious obstacle to disqualifying Trump is that contemporary free speech law is far more libertarian than when Section 3 was ratified. Had a prominent official given a speech to a group of Peace Democrats assembled in Washington during the Civil War similar to the speech Trump gave on Jan. 6, and those Democrats had immediately proceeded to march on Congress, little doubt exists that the official would have borne legal responsibility for the resulting insurrection. People were imprisoned and denied employment for far more polite expressions of anti-Union sentiments. True originalists in the federal judiciary would be hard-pressed to find a justification for not disqualifying Trump should they apply the constitutional law of free speech when the 14th Amendment was ratified. On the one hand, First Amendment jurisprudence has evolved since that time. Whether Trump incited imminent violence—the contemporary standard for overcoming First Amendment protections— is controversial. On the other hand, the contemporary Supreme Court has ruled that officeholders have very limited free speech rights when acting within the scope of their appointments (legalese for doing their job). Perhaps Section 3 should be read consistently with the 19th-century  understanding that people who hold or have held government office ought not foment organized resistance to the rule of law. 

Section 3 articulates the 19th-century view that traitors ought not be permitted to rule, that officeholders who participated in forcible resistance to the law were not qualified to hold office in the future. Although Section 3 has been largely dormant for more than 150 years, the meaning of the text is not unknowable. The key term “insurrection” was common in constitutional discourse from the framing of the Constitution to the Civil War and Reconstruction, and that meaning was uncontroversial in 1866 when the 14th Amendment was framed. 

Section 3 was revived after the invasion of the Capitol building on Jan. 6 and is now being interpreted in a new context. Constitutional authorities considering the fate of officeholders who participated in, assisted with, or encouraged the events of Jan. 6 are writing not on a blank slate when deciding disqualification cases but, rather, on parchment whose words have faded over time. They will be clear again with a little historical dusting.

Mark A. Graber is the Regents Professor at the University of Maryland Carey School of Law. He is the author of Punish Treason, Reward Loyalty: The Forgotten Fourteenth Amendment I (forthcoming, University Press of Kansas), as well as numerous other works on constitutional law, constitutional history, constitutional politics, and pretty much any other subject in which “constitutional” is used as an adjective.

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