Americans love to riot, demonstrate and protest. Even before the republic, a protest against British troops occupying unruly Boston, Mass., in 1770 turned into a small riot that resulted in five civilian deaths, which became the “Boston Massacre.” The demonstrators started hurling rocks, sticks and snowballs at frightened British sentries. As usually happens when unarmed demonstrators confront armed troops, the soldiers opened fire.
What is a civil government supposed to do faced with the prospect of being forced out of office by an angry mob? Why pass laws authorizing the use of force, of course. Many many laws. The British used the Riot Act to put down troublemakers. When I was a teenager, we would jokingly describe (to our friends) after some sort of misbehavior being “read the Riot Act” by teachers, parents, or other persons of authority. Little did I know there really was a Riot Act.
This blog discusses another of the many laws to handle disturbances, the American Insurrection Act, which is back in the forefront of the news following outbreaks of civil unrest arising from recent protests over racial injustice.
What rights are right?
With the love of demonstrating and protesting in our national DNA, the Founders made sure to provide some protections in the Constitution’s First Amendment. (My favorite riot is the Astor Place Riot in New York City on May 10, 1849, triggered by all things a dispute between supporters of an American Shakespearean actor and an English Shakespearean actor. Thirty one were killed by state militia and police.) The First Amendment prohibits the making of any law “interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.”
It didn’t take long for the revolutionary American government to become the establishment with its fear of the mob. President George Washington used the Militia Act or Calling Forth Act to put down the 1794 Whiskey Rebellion in Western Pennsylvania.
But it was the most radical revolutionary of them all, Thomas Jefferson, who as president spurred the passage of the Insurrection Act over fears former Vice President Aaron Burr was fomenting rebellion in western states and Spanish territory. Burr was captured, tried and acquitted of treason.
The Insurrection Act says: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if … the “if” is followed by two detailed long conditional statements, but any president could drive a train through those conditions to get the outcome they desire.
In fact, I would call the Insurrection Act and a related law, the Posse Comitatus Act, which prohibits military personnel from acting like police in searches, seizures, and arrests, the Lawyer’s Full Employment Acts, because it would take an army of attorneys and court officials to settle lawsuits and interpret loopholes if a president actually uses the acts today.
The Insurrection Act was last invoked in 1992 when California Gov. Pete Wilson asked President George H.W. Bush for troops to put down disturbances in the wake of the Rodney King incident. That was 28 years ago, which illustrates how the Insurrection Act has come to be an instrument of very last resort in the minds of many officials.
So it was shocking to some when President Trump threatened governors with invoking the act and sending in the troops when protests, riots, and looting broke out after Minneapolis resident George Floyd was killed by police on May 25, 2020. Twenty-three states had mobilized their national guards to quell disturbances, and most governors felt they didn’t need federal intervention. President Trump reminded the governors he didn’t need their permission under the Insurrection Act. Secretary of Defense Mark Esper echoed the president’s comments when he said the governors needed to “dominate” the unruly protesters and referred to the troubled urban neighborhoods as “battle space.”
The backlash came swiftly. Some 89 former Defense officials from both Republican and Democratic administrations signed a letter arguing the military must never be used to violate constitutional rights. They said sending in troops or federalizing national guard units would ruin the high regard Americans have for the military (surveys consistently show people’s confidence in the military runs around 80 percent). Other critics said mobilizing active-duty soldiers would pit American troops against American citizens, a horrifying situation.
The president has his defenders. Sen. Tom Cotton of Arkansas, a former Army officer who is probably the Senate’s biggest war hawk, wrote an editorial that appeared in the New York Times arguing “Some elites have excused this orgy of violence in the spirit of radical chic. One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers.“
Not a last resort
While the Insurrection Act has fallen out of favor among contemporary policy makers as an acceptable option to settle public unrest, it wasn’t always so. The act was only a year old in 1808 when former revolutionary Thomas Jefferson used it to declare the Lake Champlain region in New York and Vermont to be in a state of insurrection because of widespread smuggling violating the Embargo Act.
President Andrew Jackson used the Insurrection Act to send troops to help Virginia stop Nat Turner’s slave rebellion. I am personally baffled as to why the Insurrection Act was NOT used to suppress secession by southern states in 1860. The series of states seceding from the union after the 1860 presidential election could certainly be considered “insurrection,” but the failure to invoke the Insurrection Act may be one of the reasons President James Buchanan is considered by many to be the worst president in history.
Abraham Lincoln was certainly not shy about using the Insurrection Act as the legal basis for sending troops to quell the “southern rebellion.” In 1871, President Ulysses S. Grant expanded the Insurrection Act so he could use it to send 1,000 troops after Ku Klux Klansmen who were killing Blacks and Republicans in South Carolina.
Researchers have chronicled over 20 instances of the Insurrection Act invoked by presidents. They think there are more but the official paperwork has been muddled or lost. Presidents after Grant used the law to break up labor strikes with troops and to enforce civil rights in Arkansas, Mississippi, and Alabama.
And riots? Yes. Americans can still get unruly. Lyndon Johnson felt the need to mobilize federal troops to quell disturbances in Detroit, Washington, D.C., Baltimore, and Chicago in the 1960s. I didn’t dig deep enough (I don’t have all day to do these blogs) to determine why it seemed to be OK to send soldiers to put down a riot in Chicago in 1968 and not for a riot in Minneapolis in 2020. Perhaps it was because the Illinois governor asked for help, and the Minnesota governor did not.
Whatever. The Insurrection Act remains alive and well and can be invoked whenever a president decides to use it for good or for bad reasons. I guess that determination is in the eye of the beholder, namely one person, the president of the United States.