By Axel Melkonian (BA/LLB II)
“…If the city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”
- Donald Trump, 1 June 2020.
President Trump standing before St John’s Church Parish House, Washington DC, after his 1st of June White House Address regarding the George Floyd Riots.
It was difficult to ignore the controversy this statement stirred within the legal community two months ago. In his first White House address regarding the George Floyd Riots, the President threatened to invoke the powers provided in 10 U.S.C. § 251-255 ‘Insurrection Act’. This allows a President to deploy the US Military or federalised National Guard into states where insurrection has threatened constitutionally protected rights or legal order. While the debate was focused on whether the Insurrection Act could be used against the riots, little attention was given to another law which limits the President’s ability to domestically deploy the military for law enforcement. This article will provide an overview of this relatively obscure statute – the 18 U.S.C. § 1385 ‘Posse Comitatus Act’ – and expose the racial motivations behind its introduction following the American Civil War. Ultimately, this article will demonstrate how an understanding of the Posse Comitatus Act’s history can shed light on the causal link between the failure of military Reconstruction (1863-1877), and African-American discrimination in modern America.
What is a “Posse Comitatus”?
The phrase posse comitatus is Latin for “power of the county”. Beginning from the 11th Century, the term was used in English Common Law to describe powers allowing authorities (such as a sheriff) to mobilise civilians against domestic disturbances. This legal principle was maintained in American law following the Revolution to maintain civic order in places with inadequate policing forces.
Initially, the posse comitatus principle extended to the use of soldiers; however, following the English Civil War and the passing of the 1688 Bill of Rights, the Parliament restricted civil law enforcement to civilian authorities and this limitation carried through into American Law. Regardless, English and American law enforcement authorities were able to circumvent this restriction through the Mansfield Doctrine; as long as the soldiers were deployed under the guise that they were acting as citizens preserving their legal and constitutional rights, the military could still be used as a posse comitatus. As this legal fiction was used to deploy Federal troops within the previously Confederate States, the phrase was adopted in the Act that sought to criminalise this use of the military.
The racial roots of the Act
There is a strong link between modern African-American discrimination and the Posse Comitatus Act. Not only did the Act virtually end the Reconstruction era, but it promoted Jim Crow Laws while foreclosing the progression towards racial tolerance the 13th, 14th and 15th Amendments encouraged within the Southern States.
During the Reconstruction Era, the federal government sought to re-integrate the former Confederate States with the rest of the Union; in response to this attempt, two conflicting approaches, the white supremacist and emancipist doctrines, emerged. The former aimed to maintain racial segregation and was encouraged by President Johnson and the Southern-aligned Democratic Party. Conversely, the latter was supported by the Northern-favoured Republican Party and sought to accomplish Lincoln’s vision of full freedoms, suffrage and constitutional equality for African-Americans.
The first barrier to the Republicans was President Johnson’s opposition to emancipation legislation due to his Southern sympathies. It was only until the overwhelming Republican victory in the 1866 Congressional Elections before the House could override his Presidential veto and pass the Civil Rights Act of 1866, which would guarantee the citizenship rights of former slaves. The second barrier was Southern resistance to Black suffrage. Starting from the First Reconstruction Act of 1867, a temporary army of occupation was imposed within the Confederacy to ensure that Southerners would comply with federal election laws. The presence of Federal troops became a source of humiliation to Southerners, and it was only exacerbated by the fact that many of these soldiers were African-Americans. Unfortunately, as most of the army had been sent west against the Native Americans, the occupying army could never amount to more than a few thousand men. Such a small force was in the awkward position of being unable to effectively enforce emancipation policies, while also being a continual source of aggravation in the South.
Tensions reached a climax during the 1876 Federal Election. To ensure that racist groups such as the Ku Klux Klan would not intimidate Republican voters, Federal troops were stationed throughout polling places in the South. In the closest election in history, the Southern-favoured Democrat Samuel Tilden lost to Republican candidate Rutherford Hayes by a single electoral college vote. The presence of federal troops during the election made many Southerners see the military supervision as a tyrannical use of force by Republicans to remain in power. The continual escalation of tensions between the soldiers and Southerners led to the Compromise of 1877, wherein the newly-elected Hayes was forced to withdraw the army from the South. Not satisfied with this withdrawal, in 1878 the Democrats introduced the Posse Comitatus Act.
While the Democrats controlled the House following the 1874 midterm election, the Republicans still held a majority within the Senate. Surprisingly, many Republicans were sympathetic to the Act. When introducing the bill, Representative William Kimmel of Maryland skilfully depicted it as another example of Americans rejecting the influences of totalitarianism. He aligned his position with the Founding Fathers’ fears of a standing army and its ability to enforce martial law by drawing reference to Washington’s use of a civilian militia instead of the Army to quell the 1794 Whisky Rebellion, which was applauded by the Congress. Kimmel convinced many Republicans that this evidenced a history of the federal government disapproving the use of the military for civilian law enforcement. The Act stipulated that the use of the military as a posse comitatus was criminalised unless expressly authorised by an Act of Congress or the Constitution. The use of the military to combat civil insurrection under the 1807 Insurrection Act was included as a statutory exception. President Hayes, convinced that the 13th, 14th and 15th Amendments would ensure black suffrage in the South, signed the Posse Comitatus Act into ratification in June 1878.
The unintended consequences of the Act
Unfortunately, President Hayes was very much misguided in his belief that the South would autonomously comply with emancipist policies without military enforcement. During the Reconstruction, the Southern African-American population experienced a short-lived resurgence in literacy and political representation. In 1870, 15% of all Southern elected officials were Black. In part due to the Posse Comitatus Act, this number would not be surpassed for over a century. The absence of federal troops allowed racist organisations like the Ku Klux Klan – heavily suppressed by soldiers under the 1871 Ku Klux Klan Act – to flourish and escalate violence against Blacks. While on paper Southerners complied with the Constitutional Amendments that supported black freedoms, Jim Crow laws would soon be introduced to diminish the civil liberties gained by African-Americans during Reconstruction.
One of the clearest indicators that the Act hampered emancipation was the decisive role the military played during the court-ordered desegregation of Little Rock Central High School in 1957. Following the ruling in the US Supreme Court case of Brown v Board of Education, 347 US 483 (1954), that racially segregated schools were unconstitutional, a group of nine African-American students were prevented from entering Little Rock by Orval Faubus, the Governor of Arkansas. By framing this as an insurrection, President Eisenhower was able to use the Insurrection Act to circumvent the Posse Comitatus Act and deploy the 101st Airborne. The “Little Rock Nine” would become a landmark moment in the movement towards the eventual abolition of Jim Crow Laws in 1965. Had the Posse Comitatus Act not been introduced, the use of the military to combat unconstitutional segregation laws could have occurred much earlier than the mid 20th century. Unfortunately, the long period in which these laws existed consolidated the racist undertones in the South that have continued into the present.
Concluding remarks
It is impossible to understand the controversy surrounding President Trump’s threatened use of the Insurrection Act without first being aware that it is an exception to the Posse Comitatus Act. Ironically, considering its racist origins, the Posse Comitatus Act functions as a crucial piece of legislation preventing Trump’s use of federal armed forces against the George Floyd Riots.