A Baltimore justice and a Maryland enslaver played a part in the legal history of insurrection

In my column in Wednesday’s Sun, I reported that Mark Graber, a distinguished professor at the University of Maryland School of Law and constitutional expert, helped make the case for the disqualification of a New Mexico official who took part in the Jan. 6 attack on the Capitol. Graber testified that the words and actions of Couy Griffin, a Republican commissioner of Otero County and co-founder of Cowboys for Trump, met the standard for disqualification as described in Section 3 of the Fourteenth amendment.

Graber was a key witness against Griffin. The law professor has since written an article for Lawfare detailing the history of insurrection, and there are fascinating references to a Supreme Court justice from Baltimore (Samuel Chase) and a Monkton slave holder (Edward Gorsuch) involved in the republic’s early dealings with the concept:

Because Article III defines treason in part as “levying War against [the United States],” courts had to interpret the key term “levying war.” In doing so, judges often relied on the term “insurrection.” 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, a native of Maryland who resided in Baltimore and presided over the Fries 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” and “they proceed to carry such intention into execution by force, they are guilty of the treason of levying war.”

Gorsuch was a slave holder from Monkton in Baltimore County and he was a key figure in the what is known as the Christiana Riot of 1851. Gorsuch claimed four of his slaves had escaped and fled to Pennsylvania. A federal marshal led a raiding party to get them back. (The Gorsuch Tavern on York Road in Sparks, Maryland was the meeting place of the Baltimore Countians who went to Pennsylvania to reclaim Gorsuch’s slaves.) The raid took place on September 11, 1851, at the house in Christiana, Pa. of William Parker, himself an escaped slave. Resistance to the raid was successful, and Gorsuch was killed during the fighting. Federal officials sought to indict 41 Christiana residents for treason. That’s because the incident occurred after passage of the Fugitive Slave Act of 1850. There were severe penalties for assisting escaped slaves and the act required state officials, even in free states such as Pennsylvania, to assist in their capture. At the time, judges found that people “levied war” against the United States when they forcibly resisted the execution of federal law.

This was all part of the evolution of insurrection as a thing – and it became a real thing, ratified shortly after the Civil War, as Section 3 of the Fourteenth Amendment.

The attack on the Capitol on Jan. 6, 2021 was a full-fledged insurrection, and it’s reasonable to wonder if the founder of that horror will be disqualified from running for president again. Also, in Maryland, we have the Republican gubernatorial candidate Dan Cox, a state delegate who hired buses to take people to Washington for Trump’s “stop the steal” rally and who that afternoon tweeted that Vice President Mike Pence was a “traitor.” Disqualifying? 

Maybe. I think on Nov. 8, Maryland voters are going to disqualify Cox good and hard.