Justice Antonin Scalia, one of the leading originalists and textualists of the modern era ended his career by publishing with Bryan A. Garner a 2012 treatise Reading Law: The Interpretation of Legal Texts. In his treatise, Scalia urges lawyers to go back to using the canons of interpretation, which the legal realists sarcastically scorned. As it happens, there is a canon of interpretation, which is very relevant to what the word "insurrection" means in Section 3 of the Fourteenth Amendment, which Ilya Somin's post today conveniently overlooks: noscitur a sociis — The meaning of an unclear or ambiguous word in a legal text should be determine by considering the words with which it is associated in context.
The word "insurrection" in Section 3 appears as part of the phrase "insurrection or rebellion" in a text that had as a paradigmatic example the U.S. Civil War in which 620,000 Americans at a minimum died and possibly as many as 850,000 according to more modern estimates. This amounts to about 2.5% of the population, which today would be 7 million people.
In contrast 5 people died in the January 6, 2021 riot at the Capitol. This difference in scale is enormous! More people died in the 1960's race riots and no-one called them an insurrection. Thirty-four people, for example died in the Watts Los Angelos riot in 1965 and more than a thousand were injured.
