It’s time to call what is going on in American cities by its proper name: insurrection. Its goal is the destruction of republican government. Let us be clear: the death of George Floyd was horrendous. The image of a Minneapolis police officer kneeling on Floyd’s neck made me physically ill, and I have seen men die before. All the officers involved must be held accountable.
But what is going on now has transcended Floyd’s death. What started in Minneapolis and has spread to other cities is no longer a “protest.” Rioting, arson, and looting are not protesting injustice. It is no longer about race. It is no longer about civil rights. It has become insurrection, pure and simple.
The insurrectionists may use Floyd’s death as a fig leaf for their actions but their actions are an affront to the rule of law, upon which republican government rests. The First Amendment to the Constitution guarantees “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It does not protect rioting, arson, and looting. It does not protect mob rule, which as Abraham Lincoln warned in his Lyceum Speech of 1838, is the very antithesis of republican government.
Section 4 of Article IV of the Constitution reads: “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” Today, domestic violence threatens the very foundations of republican government.
The United States is a federal republic, which means that the first line of defense against insurrection is the government of the various states. But if governors are unable or unwilling to quell domestic insurrection, the federal government has the responsibility to act.
In the wake of rioting and arson in Minneapolis that followed Floyd’s death, Mayor Jacob Frey failed to stop the violence. He apparently adopted the stance of Baltimore Mayor Stephanie Rawlings-Blake, who, in the wake of violence in the wake of Freddie Gray’s death several years ago, instructed her city’s police officers to allow protestors to “express themselves” and to give “those who wished to destroy, space to do that as well.”
But as the violence continued, Minnesota Governor Tim Walz finally deployed the National Guard. This is the proper sequence in response to domestic disorder. If the local authorities are unable to restore order, the state provides its militia, in this case the National Guard. Only then does the federal government step in.
News outlets have reported that in response to President Trump’s request for military options, the Pentagon has alerted several military police units, which can be deployed in short order to back state and local forces. On Monday, the president vowed to mobilize federal resources in the event that state efforts failed to quell the ongoing violence. It has also been reported that the president has scolded governors for their inaction as violence has spread. Of course, Trump’s critics have taken umbrage, claiming that what he has done violates the American tradition, that it is anti-constitutional, anti-federal, an example of pro-big stick executive power, and an irresponsible threat to use the professional military as cops. This is not only nonsense, it is nonsense on stilts.
Although there are many very good reasons to limit the use of the regular U.S. military in domestic affairs, U.S. troops have been so employed since the beginning of the republic. Under Article II of the Constitution, the president, as commander-in-chief of the Army and the Navy, and of the militia (National Guard) when under federal control, has the authority to act against enemies, both foreign and domestic. In addition, in 1807, Congress explicitly authorized the U.S. Army to enforce domestic law by passing the Insurrection Act.
Although intended as a tool for suppressing rebellion when circumstances “make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings,” presidents have used this power on five occasions during the 1950s and ’60s to counter resistance to desegregation decrees in the South. It was also the basis for federal support to California during the Los Angeles riots of 1992, when elements of a U.S. Army division and a Marine division augmented the California National Guard. More recently, active-duty forces have deployed in response to Hurricane Katrina.
Nonetheless, the United States has sought to limit the use of regular troops in domestic affairs, the most important of which was the Posse Comitatus Act (PCA) in 1878. Unfortunately, the PCA is widely misunderstood. The concept of the posse comitatus is an inheritance from Britain. It literally means the “power of the county.” Thus the first line of defense against disorder was made up of law-abiding citizens called together by the “shire-reeve” or sheriff.
When Congress passed the Insurrection Act, it created a problem for the Army. It meant that in practice, a federal marshal could tap a local Army detachment to support local law enforcement by designating it as a part of the posse comitatus. Accordingly, troops were often used in the antebellum period to enforce the fugitive slave laws and suppress domestic violence. The Fugitive Slave Act of 1850 permitted federal marshals to call on the posse comitatus to aid in returning a slave to his owner, and Attorney General Caleb Cushing issued an opinion that included the Army in the posse comitatus. Troops were also used to suppress domestic violence between pro- and anti-slavery factions in “Bloody Kansas.” Soldiers and Marines participated in the capture of John Brown at Harpers Ferry in 1859.
The PCA prohibited the use of the military to aid civil authorities in enforcing the law or suppressing civil disturbances unless expressly ordered to do so by the president. After the Civil War, the U.S. Army was involved in supporting the Reconstruction governments in the southern states. The legislation was introduced by southern Democrats in the House of Representatives who resented the employment of federal troops for this purpose. Some northern congressmen supported it because of the Army’s role in suppressing the railroad strike of 1877.
While the PCA is usually portrayed as the triumph of the Democratic Party in ending Reconstruction, the Army welcomed the legislation. The use of soldiers as a posse removed them from their own chain of command and placed them in the uncomfortable position of taking orders from local authorities who had an interest in the disputes that provoked the unrest in the first place. For instance, during the railroad strikes, soldiers took orders from state governors and even municipal officers. As a result, many officers came to believe that the involvement of the Army in domestic policing was corrupting the institution.
While I am on record opposing proposals to use the military in the “war” on drugs and the like, the fact is that President Trump, if he finds it necessary, has the constitutional authority to employ U.S. troops in response to domestic disorder. Indeed, he might look to the various Force Acts passed by Congress after the Civil War to suppress domestic terrorism by the Ku Klux Klan. If weak and feckless mayors and governors fail to take steps to suppress this insurrection, the federal government is obliged to act. Republican government itself is at stake.