Rebellion and Insurrection as a Crime Against the State
Date of Information: 09/25/2025
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Introduction
Rebellion and insurrection sit in a unique place in American criminal law. They are more serious than riot or unlawful assembly, but they stop short of treason, which the Constitution narrowly defines. The federal statute, 18 U.S.C. § 2383, is designed to protect the authority of the United States by criminalizing efforts to rise up against its government or laws.
Historical Background
The Framers of the Constitution deliberately restricted the definition of treason. Article III requires either “levying war” against the United States or “adhering to [its] enemies, giving them aid and comfort.” The goal was to prevent abuse of treason prosecutions, which had been common in England.
Congress responded by creating additional crimes against the state, including rebellion, insurrection, and seditious conspiracy. These statutes gave the government tools to prosecute organized resistance to its authority that fell short of treason.
Early examples include:
Whiskey Rebellion (1794): Dozens were indicted for treason after armed resistance to a federal tax. Only two were convicted, and both were pardoned by President Washington.
Civil War era prosecutions: Courts confirmed that conduct did not need to amount to “levying war” for it to qualify as insurrection.
The Modern Statute: 18 U.S.C. § 2383
The federal law makes it a crime to:
Incite, set on foot, assist, engage in, or give aid or comfort to any rebellion or insurrection;
Against the authority of the United States or its laws.
Key Legal Features
Broader than treason: The rebellion need not qualify as “war” within the meaning of the Treason Clause.
Fact-based determination: Whether conduct constitutes “rebellion or insurrection” is typically left to a jury (United States v. Greathouse, 26 F. Cas. 18 (C.C.N.D. Cal. 1863)).
Political implications: A conviction carries not just criminal penalties but also civil and political consequences, discussed in detail below in the Penalties section.
Elements of the Offense
Courts interpreting 18 U.S.C. § 2383 have emphasized that not all political dissent or opposition qualifies as insurrection. To sustain a conviction, the government must prove that the defendant engaged in conduct that went beyond mere advocacy and involved unlawful means.
1. Substantive Actions That Constitute Insurrection
Use of force or violence: A domestic organization’s attempt to subvert the government is not a crime unless it is carried out through force or unlawful means. Peaceful advocacy, even if radical, is not sufficient. United States v. Sinclair (E.D. Mich. 1971).
Running a blockade (Civil War context): During the American Civil War, the Attorney General issued an advisory opinion concluding that dispatching an American vessel to a neutral port in order to take on cargo for the purpose of running the Union blockade of Confederate ports was an offense under the insurrection statute. This opinion treated blockade-running as a substantive act of rebellion or insurrection. It remains unclear whether such reasoning would carry legal force today, outside the unique context of civil war.
Aid and comfort: Giving material or logistical support to rebels, even without personally taking up arms, can satisfy the statute.
Public notoriety of rebellion: Courts have recognized that the existence of a rebellion may be established by presidential proclamations, congressional acts, and widespread public knowledge — not just by testimony. United States v. Greathouse (C.C.N.D. Cal. 1863).
Organizational advocacy: Related statutes criminalize membership in groups that advocate the overthrow of government by force (18 U.S.C. § 2385). Courts have held that “present advocacy,” not abstract future intent, is required, meaning that mere teaching of forcible overthrow as a distant principle is not enough. Noto v. United States and Yates v. United States both limited prosecutions to situations where there was an effort to instigate action.
2. Inciting Rebellion or Insurrection
Incitement has long been recognized as a distinct form of liability under the statute. In Greathouse, the court suggested that inciting rebellion might be one of the few insurrectionary acts that does not also rise to treason.
But prosecutions based on speech face steep constitutional limits. Under the First Amendment, political advocacy is broadly protected.
Yates v. United States (1957): The Court distinguished between abstract teaching of revolutionary theory and concrete advocacy of action. Mere doctrinal justification of force, even with intent that it ultimately lead to revolution, was deemed too remote to be punished.
Noto v. United States (1961): The Court reversed a Smith Act conviction because the evidence failed to show “present advocacy” of violent overthrow. It reaffirmed that abstract teaching, even if infused with revolutionary language, does not equal unlawful advocacy without substantial evidence of a call to action.
Together, Yates and Noto created a line between protected radical speech and punishable advocacy for immediate action.
Brandenburg v. Ohio (1969) then sharpened this protection: the government may not punish inflammatory speech unless (1) it is directed to inciting or producing imminent lawless action, and (2) it is likely to incite or produce such action.
Likely Outcome Under Brandenburg: Had Yates or Noto been decided under the Brandenburg standard, their outcomes would almost certainly have been the same, and perhaps even more decisively in favor of the defendants. The Communist Party advocacy in those cases was largely abstract and long-term, not designed to produce imminent unlawful action. Under Brandenburg’s stricter test, the government’s cases would have been even weaker, because imminence and likelihood were not demonstrated.
Thus, while Yates and Noto were important stepping stones, Brandenburg fortified their logic with a clear constitutional shield for radical speech that falls short of direct, imminent incitement.
3. Indictment and Evidence
An indictment need only track the statutory language; it is not necessary to allege “levying war” explicitly. Greathouse.
Testimony of accomplices can be used, so long as corroborated in material respects.
Public documents, such as proclamations of rebellion, can serve as proof that an insurrection existed.
Penalties for Violations of 18 U.S.C. § 2383
A conviction for rebellion or insurrection carries several penalties that extend beyond the criminal sentence itself. These consequences reflect Congress’s longstanding concern that insurrectionary activity strikes at the heart of government authority.
1. Criminal Penalties
Imprisonment and fines: A conviction under § 2383 authorizes a prison term of up to 10 years, along with possible fines.
Permanent disqualification from office: Uniquely, the statute mandates that anyone convicted “shall be incapable of holding any office under the United States”. This makes it especially significant in cases involving public officials or political leaders.
2. Collateral Penalties for Federal Employees
Forfeiture of retirement benefits: Under 5 U.S.C. § 8312, individuals convicted of rebellion or insurrection, along with related treason and sedition offenses, lose eligibility for federal annuities and retirement pay. This provision ensures that federal employees who turn against the United States cannot continue drawing taxpayer-funded pensions.
3. Immigration and Nationality Consequences
Loss of nationality: The Immigration and Nationality Act provides that a U.S. citizen — whether native-born or naturalized — may lose citizenship for committing acts of treason or insurrection. Section 349 of the INA (8 U.S.C. § 1481) specifically includes “violating or conspiring to violate any of the provisions of section 2383 of title 18” as grounds for expatriation, if and when the person is convicted by a court of competent jurisdiction.
Application to naturalized citizens: For naturalized citizens, a conviction under § 2383 could therefore carry the additional penalty of denaturalization and removal from the United States.
4. Restrictions on Mailings and Publications
Nonmailable materials: Federal postal laws prohibit using the mail to send letters, circulars, or publications “advocating or urging treason, insurrection, or forcible resistance to any law of the United States” (18 U.S.C. § 1717). Violators face up to 10 years in prison. Courts have historically upheld these restrictions even against First Amendment challenges, reasoning that mailing privileges are subject to Congressional regulation.
Obscene or treasonous importations: Federal officers who aid in importing treasonous or insurrectionary publications can themselves face up to 10 years in prison (18 U.S.C. § 552).
5. Trading with Areas in Insurrection
During the Civil War and codified thereafter, federal law prohibited transporting goods into states declared to be in insurrection without presidential license. These prohibitions extended to soldiers, officers, and civilians alike. Violations were cognizable before either civil or military courts, reflecting the overlapping jurisdictions in times of rebellion. These restrictions have similarities to modern economic sanctions and export controls.
Open or Unsettled Questions Regarding 18 U.S.C. § 2383
Because there are very few judicial decisions interpreting the rebellion or insurrection statute, a number of open questions remain unresolved.
1. Must the President Declare an “Insurrection” First?
One unsettled issue is whether a formal proclamation under the Insurrection Act (10 U.S.C. §§ 251–255) is a prerequisite for prosecuting someone under 18 U.S.C. § 2383.
Text of § 2383: The statute itself does not require a presidential declaration. It criminalizes inciting, assisting, or engaging in rebellion or insurrection “against the authority of the United States or the laws thereof.” On its face, this suggests prosecutions may proceed even without a presidential proclamation.
Possible defense argument: A defendant might argue that because Congress has given the President specific authority to declare an insurrection for purposes of employing military force domestically, such a declaration (or at least some formal acknowledgment by Congress) is necessary to establish that a “rebellion or insurrection” existed in the first place.
Historical precedent: Courts in the Civil War era recognized the existence of rebellion based on presidential proclamations and congressional acts, without requiring any one formal declaration. United States v. Greathouse noted that public notoriety, presidential proclamations, and acts of Congress were sufficient proof that a rebellion existed.
2. Who Decides When an “Insurrection” Exists?
Another unsettled question is whether the existence of an insurrection is a legal question for the court or a factual question for the jury.
In Greathouse, the court suggested that the existence of rebellion could be established through public acts and notoriety, but left to jurors the ultimate determination of whether a defendant’s conduct constituted participation.
This leaves room for future disputes over whether juries must defer to executive declarations or may reach independent conclusions based on the evidence presented.
3. Scope of “Aid or Comfort”
Similarly, the precise boundary between lawful expression or association and unlawful “aid or comfort” remains unclear. Providing material support clearly falls within the statute, but edge cases — such as symbolic or expressive acts of solidarity — could raise difficult First Amendment challenges.
Notable Cases and Examples
These examples were not all prosecuted under the current statute, 18 U.S.C. § 2383, as it exists today. Instead, they represent notable prosecutions or legal proceedings in the United States where the concepts of rebellion or insurrection were applied under earlier statutes, state treason laws, or related provisions.
John Brown’s Raid (1859): Brown was convicted of treason against Virginia for his attack on Harpers Ferry, but the raid exemplifies the kind of conduct Congress intended to reach with insurrection statutes.
Civil War (1861–1865): The federal government faced widespread insurrection. In practice, Confederate soldiers were treated as enemy combatants rather than prosecuted individually, though some leaders faced charges or political disabilities under the Fourteenth Amendment.
Battle of Blair Mountain (1921): Labor unrest led to treason and insurrection indictments of striking coal miners; most were acquitted.
January 6, 2021 Capitol Attack: Though most prosecutions used obstruction and seditious conspiracy charges, § 2383 drew renewed attention as commentators debated its applicability to participants and leaders.
Relationship to Other Crimes Against the State
Treason (18 U.S.C. § 2381): Requires “levying war” or aiding U.S. enemies; difficult to prove due to constitutional safeguards.
Seditious Conspiracy (18 U.S.C. § 2384): Punishes the agreement to use force against U.S. authority, even if no uprising occurs.
Conclusion
Rebellion and insurrection prosecutions remain rare in American history. The statute is a bridge between treason’s narrow constitutional definition and the government’s need to respond to armed resistance. While rarely invoked, it carries profound legal and political consequences, especially given its penalty of permanent disqualification from public office, potential loss of federal retirement benefits, and even loss of U.S. nationality in the case of naturalized citizens.
Frequently Asked Questions (FAQ)
1. What exactly does 18 U.S.C. § 2383 prohibit?
It makes it a crime to incite, assist, engage in, or give aid and comfort to any rebellion or insurrection against the authority of the United States or its laws.
2. How is insurrection different from treason or sedition?
Treason is narrowly defined in the Constitution and requires “levying war” or aiding enemies. Sedition generally involves conspiracy or advocacy to use force against government authority. Insurrection focuses on the act of rising up — the doing, not just the planning.
3. What are the penalties for violating § 2383?
Conviction can result in up to 10 years in prison, fines, and permanent disqualification from holding federal office. Federal employees may lose pensions, and naturalized citizens risk denaturalization and removal.
4. Does speech alone count as insurrection?
No. Courts have held that abstract or theoretical advocacy is protected under the First Amendment. Speech only crosses into criminal incitement if it is directed to and likely to produce imminent lawless action (the Brandenburg standard).
5. Are there historical examples of insurrection prosecutions?
Yes. Cases include John Brown’s Raid, Civil War–era prosecutions, the Battle of Blair Mountain, and debates over charges after January 6, 2021. Not all were under the current statute, but they illustrate how U.S. law has dealt with rebellion and insurrection.
6. Could someone be prosecuted without a presidential declaration of insurrection?
Yes. The statute itself does not require a formal declaration. However, some defendants might argue that a declaration is necessary — an unsettled question in modern law.
Need Help with a National Security Case?
Facing allegations of rebellion, insurrection, or related offenses? These charges carry not only criminal penalties but also lifelong political and immigration consequences. Schedule a confidential consultation with Charles International Law to protect your rights and plan a strong defense.
Other Helpful Resources:
See Also:
CIL Guide on Treason
CIL Guide on Crimes Against the State
CIL Guide on Sanctions and Export Controls
