The beltway certainly has their collective panties in a bunch over the “storming” of the Capitol building last week. Talk of “sedition” and “insurrection” abounds.
It used to be, before Trump, that charges of sedition and insurrection were discredited. We quote from the landmark first amendment case, New York Times v. Sullivan:
Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e. g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a matter “which no one now doubts.” Report with Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines, stating: “I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.” Letter to Mrs. Adams, July 22, 1804, 4 Jefferson’s Works (Washington ed.), pp. 555, 556. The invalidity of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United States, 250 U. S. 616, 630; Jackson, J., dissenting in Beauharnais v. Illinois, 343 U. S. 250, 288-289; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899-900; Chafee, Free Speech in the United States (1942), pp. 27-28. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.
But as always, Trump changes everything. How soon we forget.
Back when the left was causing all the trouble in the 1960’s and 1970’s and saying all kinds of revolutionary things as they occasionally bombed and looted and murdered and kidnapped, no one ever brought up insurrection or sedition. No one important, anyway. Like the New York Times, for instance. They were important then, right? And even a little bit principled?
Seems so long ago.
Now sedition is all the rage, however.
It’s completely improper. The Capitol is, of course, federal territory. The federal government’s jurisdiction over it is plenary, unlike its jurisdiction when we’re talking about state territory. The feds can accordingly prosecute any crimes they’re of a mind to in connection with storming the Capitol, up through trespassing and rioting and stealing and mischief and mayhem and assault and murder. If any of those took place, or allegedly took place, the FBI can have at it. What does it legitimately add to any of that to bring up “sedition”?
Nothing. It’s making a political statement. It grounds a criminal prosecution in prevailing DC political opinion. That is an improper motivation for a criminal prosecution. Like vindictiveness. Or bad faith, when falsified evidence is deliberately used. Such improper motivations violate due process of law.
At least, that’s our opinion over here at LoS. And we have held that opinion for a long time – i.e., that an improper motivation for criminal charges violates the target’s right to due process of law – in other contexts, so unlike what seems like so many of our opposing interlocutors we are not being disingenuous, or getting caught up in the passions of the moment.
Indeed we have been working very hard in our own little bailiwick – or as hard as we ever work, at any rate – to remind our American courts of this important principle, which they seem to have forgotten in recent decades.