The Final Check: A Framework For Thinking About Insurrection and the Right of Self-Defense Against Government Usurpation In The United States of America
We may have entered into a season of insurrection, as Alexander Hamilton called it in Federalist 74, and if that is indeed the case clear thinking will be imperative over the coming years. Much has understandably been made about the right wing Capital building riots of January 6th, 2021, and, to a lesser degree, the various left wing riots of 2020. The Biden administration’s demand for nearly 30 thousand troops ahead of his inauguration underscores the seriousness with which the government has taken threats to its safety. It has been fascinating to watch certain events simultaneously defended as “patriotism” and attacked as “insurrection.” Further reflection indicates that the line between these two is thin.
I do not intend to evaluate the merits (or lack thereof) of recent riots in this country. But I do intend to provide a framework for such an evaluation. Below I consider the founders’ intentions and expectations, a couple of 19th century data points and conclude with a framework for thinking about the merits of self-defending against the government’s infringement on rights.
The Constitution + Federal & State Statutes
Most obvious and frequently raised — Article III Section 3 of the Constitution outlaws and provides a brief definition of treason. In turn, federal statutes make the overlapping acts of treason, insurrection and sedition criminal. Most states have comparable state-level laws.
The purpose is obvious and straightforward — a government cannot allow unfettered conspiracy and acts intended to overthrow it or resist its authority extra-legally, unless it wishes to invite instability. In Federalist 43, James Madison wrote that “…artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.” Alexander Hamilton wrote in Federalist 74 that treason is “a crime levelled at the immediate being of the society.” George Washington wrote to Henry Knox in 1787, in response to the first insurrection against the new United States government, that he favored punishments for participants in Shays Rebellion because “without exemplary punishment, similar disorders may be excited by other ambitious and discontented characters.”
But are the foregoing laws absolute or (foreshadowing!) should they be read to include certain presuppositions?
Adams, Hamilton, Jefferson and Madison On Tendencies of Governments; People’s Right of Self-Defense Against Government Usurpation
The founders viewed government, by its very nature, as a means to protect the fundamental rights of human beings, but one that — regardless of form — was inclined to abuse. In 1763, John Adams’ Essay On Man’s Lust for Power concluded with the warning: “No simple Form of Government, can possibly secure Men against the Violences of Power. Simple Monarchy will soon mould itself into Despotism, Aristocracy will soon commence an Oligarchy, and Democracy, will soon degenerate into an Anarchy, such an Anarchy that every Man will do what is right in his own Eyes, and no Mans life or Property or Reputation or Liberty will be secure and every one of these will soon mould itself into a system of subordination of all the moral Virtues, and Intellectual Abilities, all the Powers of Wealth, Beauty, Wit, and Science, to the wanton Pleasures, the capricious Will, and the execrable Cruelty of one or a very few.” Further, it would be a mistake to entertain the supposition that the republican structure of the United States that followed this essay dulled Adams’ view: over forty years later he wrote that the above quoted paragraph “has been the Creed of my whole Life and is now March 27 1807 as much approved as it was when it was written.…”
In comparing and contrasting state and federal governments encroachments in Federalist 28, Alexander Hamilton discussed the natural right of the people to defend themselves from government infringements: “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government…..The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them.”
James Madison considered it the responsibility of the people to guard against government encroachments. Madison wrote in a 1785 letter to Thomas Jefferson “It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of the noblest characteristicks of the late revolution.” In his 1792 essay published in the National Gazette, he concluded: “In bestowing the eulogies due to the partitions and internal checks of power, it ought not the less to be remembered, that they are neither the sole nor the chief palladium of constitutional liberty. The people who are the authors of this blessing, must also be its guardians. Their eyes must be ever ready to mark, their voice to pronounce, and their arm to repel or repair aggressions on the authority of their constitutions; the highest authority next to their own, because the immediate work of their own, and the most sacred part of their property, as recognising and recording the title to every other.”
In considering the degree of freedom to be preserved and the standard for reactions against potential encroachments upon such freedoms, Madison’s aforementioned letter to Jefferson noted that “[t]he freemen of America did not wait until usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson much too soon to forget it.” Jefferson went further — responding to concerns regarding Shay’s Rebellion, Jefferson coined one of his famous phrases in a 1787 letter to Madison: “The mass of mankind under [a government such as the United States of America’s] enjoys a precious degree of liberty & happiness. It has it’s evils too: the principal of which is the turbulence to which it is subject. But weigh this against the oppressions of monarchy, and it becomes nothing. Malo periculosam libertatem quom quietam servitutem. Even this evil is productive of good. It prevents the degeneracy of government, and nourishes a general attention to the public affairs. I hold it that a little rebellion now and then is a good thing, & as necessary in the political world as storms in the physical.”
But a rebellion should be a last resort after all systemic checks have failed, as Madison noted in an 1830 letter: “In the event of a failure of all these Constitutional resorts against usurpations and abuses of power and of an accumulation thereof rendering passive obedience & non resistance a greater evil, than resistance & revolution, there can remain but one resort, the last of all, the appeal from the cancelled obligations of the Constitutional compact, to original rights and the law of self-preservation.”
Taken together, the founders clearly appear to have contemplated — and believed it quite uncontroversial — that the people’s “original right of self-defense” acts as a final check on government usurpation.
Certain 19th Century Instances of Treason/Insurrection Illustrate the Difficulty of Categorizing the Nature of a Revolt Against the Government
Future data points proved challenging when an insurrection was based upon government infringement. The parties responsible for the Dorr Rebellion and the Raid on Harpers Ferry framed their aims as patriotic, Constitutionally defensible and morally right, yet both were respectively found guilty of treason and/or insurrection. Tellingly, their actions were ultimately viewed as just (and the respective government unjust) shortly thereafter.
Dorr Rebellion
In 1842, disputed Governor Thomas Wilson Dorr ordered the state militia to defend his government, and the expanded suffrage upon which it based its claim, against the rival established state government (in which the prevailing law required land ownership in order to vote)— the conflict between which became known as the Dorr Rebellion. Dorr believed his cause was patriotic, his order stating: “It has become the duty of all our citizens who believe that the People are sovereign, and have a right to make and alter their forms of government, now to sustain; by all necessary means, the Constitution adopted and established by the People of this State, and the Government elected under the same. The only other alternative is an abject submission to a despotism, in its various practical effects without a parallel in the history of the American States. I call upon the People of Rhode Island to assert their rights, and to vindicate the freedom which they are qualified to enjoy in common with the other citizens of the American Republic. I cannot doubt that the People of this State will cheerfully and promptly respond to this appeal to their patriotism, & to their to their sense of justice; & that they will show themselves in this experience to be the worthy descendants of those ancestors, who aided in achieving our national independence.”
The resulting combat from Dorr’s militia was deemed an insurrection, and in 1844 Dorr was found guilty of treason against Rhode Island. However within a year he was freed, and the Rhode Island voting laws were soon after aligned with Dorr’s vision. In 1854, the Rhode Island Supreme Court overruled the treason verdict — writing that “The union of all the powers of government in the same hands is but the definition of despotism. To guard against such a government was one great object of the Constitution…This is the great principle of American liberty.”
Harpers Ferry
Before being sentenced to death for the Raid on Harpers Ferry in 1859, John Brown famously spoke before the court, in part stating: “…I believe to interfere as I have done…. was not wrong, but right. Now, if it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood further with the blood of my children and with the blood of millions in this slave country whose rights are disregarded by wicked, cruel, and unjust enactments, I submit; so let it be done!” Wendall Phillips, speaking to an applauding crowd in Brooklyn, remarked in the immediate aftermath of Brown’s sentencing: “[Brown’s] opposition to tyrants stands in noble comparison to his obedience to God. I should not apply the word insurrectionist to John Brown…. there was no insurrection in his actions. It would be a mistake to call him an insurrectionist…. There is no civil society, no government, nor can such exist except with the impartial equal submission of its citizens…. What I say about this insurrection at Harpers Ferry is — that there was no government in Virginia.” He added for good measure that John Brown “has twice as much right to hang Governor Wise as Governor Wise has to hang him.”
By 1861 it was the state of Virginia in a confederacy against the United States and “John Brown’s Body” was the marching song of choice for Union troops. In 1865, Governor Henry Wise, then a confederate general, was taken prisoner at Appomattox. After the war, his plantation outside Norfolk was converted into schools for newly freed slaves. A portrait of John Brown was hung in the parlor.
We can glean a couple of lessons from the cases of Dorr and Brown. First, they provide practical examples of instances where a state or the federal government so overstep its authority or so clearly infringe on liberty that the “original right of self-defense” becomes the right, and perhaps duty, of the people. Second, critically, Dorr and Brown were able to articulate a Constitutional and moral basis as a coherent defense for their actions. The sum of these two lessons is that we should therefore distinguish these situations — rebellion, defended with morally and Constitutionally coherent principals against government usurpation — from treasons such as switching sides in a war or rebellion based on concepts not contemplated by the Constitution (such as secession or refusal to pay taxes). A third lesson is that — notwithstanding the prima facie defensibility of their rebellious acts — both Dorr and Brown were convicted. We can infer that due to the passions, factions and differences of opinion that would give rise to acts of insurrection, agreement on the merits of a such an act is unlikely as well. Even a conviction of treason does not alone foreclose the possibility that a rebellion may be justified as a final check, as later events may further elucidate our understanding.
Framework, Themes and Warning for the Future
Under what circumstances might a revolt against the government be justified? When is an insurrection a morally sound and Constitutionally defensible final check and when is it simply an illegal act? Based on the foregoing, I would suggest a framework of two somewhat tangible required factors and a third, less tangible, required underlying belief. First, there must be a clear and obvious usurpation or an infringement on rights. Second, the system of checks in place must entirely fail to redress the overstep. A third and underlying factor is the leap of faith by the people — after having analyzed and critically reviewed the facts — that they are right and the system is wrong.
If one accepts the foregoing framework, three themes emerge. First, we see asymmetries between the government and the people. On the one hand, the government has a wider latitude for considering illegal acts than do the people for considering insurrection: the legislature may consider, advocate for and, indeed, pass a law that infringes — but citizens merely planning a revolt qualifies as sedition and therefore illegal. On the other hand, the standard for a just revolt appears lower (under Madison’s view) than the standard for a criminal conviction of sedition, treason or insurrection. A usurpation that is not redressed need not “be strengthened… by exercise” to provide cause for a revolt, rather a reasonable expectation of the “consequences of the principle” provides just cause for the people to “[avoid] the consequences by denying” it. Further, while government intent may be helpful in anticipating consequences, it does not seem otherwise relevant to the analysis — usurpation is effectively a “strict liability” offense. To convict a citizen of a crime, meanwhile, the government must of course demonstrate beyond a reasonable doubt that the defendant actually committed the relevant act with the required intent.
The second theme, in a practical sense — is that we should review with skepticism a government’s charge or conviction of treason or insurrection on actors whose acts were motivated in response to a usurpation or other palpably unjust policy. A government — unlikely to indulge arguments that it has overstepped its authority and its systemic checks have failed — can be expected to convict participants in a just and unjust rebellion alike as treasonous.
Third, the averment that the government should, in an absolute sense, be secure from and without fear of violence from the people is false, and anyone adhering to such a view should be disabused of this perspective. Rather — in keeping with the framework propounded above — the protections afforded by laws against treason and insurrection should only apply to the extent that the government acts within its Constitutional limitations and, where it does not, the checks and balances operate efficiently and appropriately to remedy such infringements. Where both the legislature usurps the rights of the people and the system’s checks fail to reign in such infringements, insurrection — as a form of self-defense and perhaps the most basic human right — acts as the final check on the government.
Clear thinking will be necessary over the coming years, to guard both against the usurpations of government and specious arguments of “ambitious and discontented characters.”
