William Hogeland in the BAD HISTORY blog wrote:I'm violently misquoted by "The Atlantic"
. . . which only exposes the more important problem.
William HogelandJan 22 (link) I wouldn’t necessarily have noticed a thoroughly garbled dispute between Ross Douthat of The New York Times and Adam Serwer of The Atlantic, regarding the meaning of the word “insurrection”—with reference, of course, to Trump, January 6, and Section Three of Fourteenth Amendment—had Serwer not flagrantly misquoted my book The Whiskey Rebellion to make an erroneous point that the book in fact contradicts. I don’t like seeing my work frogmarched against its nature into misinformed argumentation, but beyond Serwer’s citation error—a hard one to make by accident, though who knows—the main issue for BAD HISTORY is how utterly out-of-it these supposedly brainy writers, working for the few remaining supposedly quality periodicals, can get when they’re trying to lever the American past into their middlebrow news-hook clickbait arguments regarding current politics.
Serwer and Douthat were arguing about that most boring of all current topics: whether the attack on the Capitol by Trump supporters on January 6, 2021, counts as an insurrection for the purposes of applying Section 3 of the Fourteenth Amendment to keep Trump off electoral ballots for 2024. You may not be surprised to know that I can’t imagine how the attack on the Capitol doesn’t count as an insurrection, but who cares what I or anyone else calls it? No president before Trump, and no presidents’ supporters before his, have used violence to try to stop the constitutional process of electoral certification in order to reverse an election result and thereby keep a defeated incumbent illegally and, for all we know, perpetually in office.
Call it what you want.But because insurrection is a crime, and definitional arguments would be bound to be part and parcel of any defense against such a charge, prosecutors of Trump have wisely avoided charging him with it. The definition matters now, to the professionally furrowed-browed, because law professors have ginned up a notion that under Section 3 of the Fourteenth Amendment, Trump can be kept off the ballot for insurrection —and hey, maybe he can! The section makes little practical sense. It has a bad history all its own. But so do hallowed constitutional provisions like the Second Amendment. If the Supreme Court somehow rules the law profs’ way on Section 3—a big “if”—the ploy might actually work.
One place the issue won’t be settled is in the opinion pages. That won’t stop opinion writers from striving to settle it there—great rafts of words have to be posted every day, without fail—and that’s how we have Douthat and Serwer bringing their intellects to bear on the question of what “insurrection” means in Section 3 and resorting, for proof, as opinion writers seemingly must do, to American history, which plainly shows, according to Douthat, that January 6 was not an insurrection, a term that he thinks can refer only to “the kind of broad political-military rebellion that occasioned [the section’s] original passage [the Confederacy’s secession] . . . the hypothetical raising of a Trumpist Army of Northern Virginia, say, or the seizure of the U.S. Capitol by a Confederate States of Trumpist America.”
Because writers like Serwer and law profs like Ilya Somin have brought up the Whiskey Rebellion as an example of an event much smaller than the Confederacy’s secession yet clearly also an insurrection, Douthat goes to some lengths to show—correctly enough—that while that rebellion was indeed comparatively small, it was nevertheless an organized, ongoing, armed effort at secession, not a one-off attack like January 6, which somehow, to him, remains thereby ruled out of the definition.
Douthat is right about the nature of the Whiskey Rebellion. His argument is also fatally garbled. To prove that Section 3 can apply only to the situations he wants it to apply to, he has to shove relevant historical examples into boxes where they won’t fit. For one thing: Who says January 6 doesn’t, like the Whiskey Rebellion, represent “an incipient political formation,” as Douthat implies without arguing the point? Bringing in a whole new standard like that, sold only via emphasis, and not mentioned in Section 3, can only lead to further back-and-forth definitions of terms, and round and round we go. Which is evidently what the audience for this kind of display wants to see in its periodical literature.
Here’s how embarrassingly lame the whole thing can get. Serwer, I guess to show that while the Whiskey Rebellion was an insurrection, which of course it was, as Douthat naturally agrees, and yet to deny that it had the “incipient political formation” for secession that Douthat claims it had, which it did, and that it therefore resembles the January 6 attack, which—if only the bright-boys could get beyond their proliferating, self-created category errors—it does, takes issue with Douthat’s assertion that the whiskey rebels flew a six-striped flag representing five Pennsylvania counties and one county in western Virginia. To Douthat that flag reflects incipient political formation.
The rebels did fly it. To Serwer, though, it becomes important that they didn’t. Because Douthat says they did.
Evidently Serwer decided to consult my book The Whiskey Rebellion. On page 182, as anyone can plainly see, I say that the rebels flew the six-striped flag that Douthat’s referring to. I’m not the only one who says so: I based my description on eyewitness accounts in the primary record. Key secondary sources also note the flying of the flag (Douthat cites an important scholar of the rebellion, Wythe Holt). On later pages, I mention the flag again. And again.
While Serwer got no help from my text in his quest to prove Douthat wrong about the flag’s existence, for no reason necessary to the argument, he did find an endnote where—along with plainly citing my sources for the manifest existence of the actual flag—I cite a vexillologist in noting that a certain flag displayed as a Whiskey Rebellion flag in a hotel in western Pennsylvania isn’t actually an example of one. The note reads:
“The flag is described by Brackenridge in Incidents, by Gallatin in his statement to U.S. Rawle, and in the federal commissioners’ letter to [U.S. Secretary of State] Randolph of 8/17/1794.” [ . . . ] the flag now displayed at the Century Inn in Scenery Hill, Pennsylvania, is unlikely to have been a flag of the rebellion—and might have been a regimental flag of the suppressing federal army.
Here’s how Serwer used that note, in erroneous contradiction of Douthat’s garbled argument regarding the flying of a six-striped flag:
. . . as the historian William Hogeland notes in The Whiskey Rebellion, the six-striped flag “is unlikely to have been a flag of the rebellion—and might have been a regimental flag of the suppressing federal army."
Obviously, the last thing I was saying is that the six-striped flag that Douthat referred to wasn’t a rebel flag—I asserted that it was, cited the sources that prove it, and suggested that a flag on display as an example isn’t a real example. When I said above that this was a hard error for Serwer to make, you can see what I mean. The text to which the note refers say that the rebels flew the six-striped flag; the note from which Serwer clipped his misleading version, cites the sources. It’s all glaringly clear.
So I don’t know what could have happened there. At best: sheer blind haste in making a totally unimportant point, contra Douthat? Underpaid, overworked assistant search-and-grab? Maybe. Utter absence of serious fact-checking, for sure.
What’s revealed, whatever the motives and process: This is the flagrant bullshit that all too often passes for intelligent discussion about the nation’s history among sophisticated liberaloid readers, writers, and editors trying to win silly arguments. And all too often among lawyers and judges. Make it stop.
_________
Punchline! I just checked and found a correction made (I’d been hocking The Atlantic on Twitter). All reference to my book is now cut, with this note at the bottom:
This article previously stated that it was not clear if one of the flags flown by the Whiskey Rebels was their flag, but it was in fact theirs.
. . .
Wha . . . ?
Color me incredulous.
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