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Insurrection in the Eye of the Beholder

On the little-known law that has shaped black history in the United States Striking sanitation workers in Memphis flanked by a tank, 1968. | Wax Poetics

After reports last week from Minneapolis that numerous buildings, including a police precinct, had been set ablaze during protests in the city against police brutality, President Donald Trump tweeted the following at 12:53 a.m. on Friday: “These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!”

His language was cited by Twitter for “glorifying violence.” Although President Trump appears erratic and impulsive—and his presidency an abrupt departure from past pattern or practice—his tweets regarding Minneapolis are thoroughly consistent with his political platform. Trump campaigned, in part, on being the “l(fā)aw and order” candidate, a vow made in response to the 2016 fatal shooting of five police officers in Dallas that was widely interpreted as doubling down on his support for law enforcement despite a nationwide outcry against racial profiling and police brutality. Moreover, his impulse to use military power in domestic affairs is not new. In January 2017, not long after he was inaugurated, he wrote on Twitter: “If Chicago doesn’t fix the horrible ‘carnage’ going on . . . I will send in the Feds!” Trump repeated this threat to send in federal “help” a number of times over the next several months, citing gun violence and an escalating murder rate in Chicago, which happens to be home to the second-highest number of black residents of any city in the United States.

His impulse to use military power in domestic affairs is not new.

Some might figure Trump naturally assumes he has the power to use the military however he wants. After all, he already assumed authorized federal power to administer the U.S.-Mexico border, deploying more than five thousand active military troops to the zone, a spectacle of force to intimidate a “caravan” of migrants fleeing Central American violence. But if challenged on the threat to deploy troops to Minneapolis, Chicago, or within any other state, his legal advisers would point to presidential powers that derive from the Insurrection Act of 1807. That law states that the president may use the armed forces or state militias (i.e., the present-day National Guard) to “suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy” that either causes the deprivation of constitutional rights which a state fails or refuses to protect, or that opposes or obstructs the execution of federal law. Reportedly, Trump is already considering invoking the Act, with Arkansas senator Tom Cotton among those who have urged him to. ?

Though hardly common knowledge, the law happens to be the linchpin of several iconic events in African American history. Its invocation is enmeshed with this country’s long history of racial injustice: “insurrection” has been defined, in practice, as either rebellion against slave power or ongoing racial injustice, or as resistance to federal laws mandating civil rights and integration. Radical Republicans attempted to use federal military power to quell white resistance in the South during Reconstruction. In the 1950s and 1960s, federal forces were called in to enforce the desegregation of public schools in Arkansas, Alabama, and Mississippi. But it has also been used to meet urban unrest in the 1960s—in Baltimore, Chicago, and Washington, D.C., after the assassination of Martin Luther King Jr.

Though the Act has not been formally invoked since President George H.W. Bush deployed federal troops to Los Angeles in 1992, it has emerged as a legal facet in other more recent events in black history. In 2005, black residents stranded in the immediate aftermath of Hurricane Katrina in New Orleans were reimagined by the media and law enforcement with graphic violence—specifically, as rooftop snipers and perpetrators of pedophilic rape. Five years later, in 2010, theNew York Timesreported in retrospect that it was white vigilantes attacking black hurricane victims who were, in fact, the chief perpetrators of violence. As the Times further reported: “The narrative of those early, chaotic days—built largely on rumors and half-baked anecdotes—quickly hardened into a kind of ugly consensus: poor blacks and looters were murdering innocents and terrorizing whoever crossed their path in the dark, unprotected city.”

This consensus was shared by President George W. Bush, who, according to his 2010 memoir Decision Points, debated with then-governor of Louisiana Kathleen Blanco for at least three days about his intent to deploy the federal troops Blanco had requested by invoking the Insurrection Act, which also authorizes troops under federal command to assume policing powers typically relegated to local law enforcement—for example, to search suspects, seize evidence, and make arrests. Blanco eventually won this federalist battle, and Bush deployed the requested troops without also invoking the Act. It must be said, however, that Blanco’s opposition was more so about her will to retain control of disaster relief efforts, and not Bush’s redefinition of a search-and-rescue effort into a mission to suppress an “insurrection.” Upon making a public announcement that some of the forty thousand troops she had requested had arrived from nearby states, Blanco warned: “I have one message for these hoodlums: These troops know how to shoot and kill, and they are more than willing to do so if necessary, and I expect they will.”??

The 1807 law itself is fairly spare in comparison to more recent legislation, where every term used is defined with copious verbiage, rife with exceptions and other technicalities. Thus, an “insurrection” (or “domestic violence” or an “unlawful combination,” etc.) is in the eye of the beholder—namely the state governor who requests the president to send troops pursuant to the Act, or the president who can decide to unilaterally deploy troops to a given state under such authority. (That said, there still is the condition that any “insurrection, domestic violence, unlawful combination, or conspiracy” is either causing the deprivation of constitutional rights or obstructing the enforcement of federal law, a legal justification which will be left to the Trump administration to satisfy in the face of many objecting state governors. In the meantime, Texas lawmakers have been researching federal laws that might be violated by infiltrating “outside agitators”—the age-old bogeymen Southern lawmakers from the antebellum period through to the Civil Rights movement often blamed for inciting black rebellion, thereby detracting from the injustices being challenged.)?

There’s no record of any congressional debate on the Insurrection Act, thus preventing those who attempt to uncover its origins from corroborating what its enactors might have been thinking when they passed it. The Act, however, does have an inescapable context, one that overwhelms oft-cited references to white citizens patriotically resisting heavy taxation during the Shays Rebellion in 1787. Indeed, the initial codification of slavery in colonial America not only legalized the enslavement of resident Africans, but, by necessity, also authorized their severe restriction and overall repression—an architecture of enforcement that maintained the status of enslaved blacks with violence. The ultimate intent of such laws—or slave codes—was to prevent a slave insurrection.

The regulation of slavery, at the time the Act was passed, was largely a state matter, not a federal one. In fact, the drafters of the Constitution were formally silent on the peculiar institution, only referencing it by euphemism (e.g., “persons held to service or labour”), for the most part in order to address such pesky issues as congressional representation and taxation. Other than sanctioning the foreign slave trade through 1808 and compelling states to return fugitive slaves, the regulation of slavery itself was relegated to the states, a convenient way to sidestep any prolonged constitutional debate over the legitimacy of the institution itself. It is this silence and legal complicity that is often referred to as America’s original sin.

As for slaveholding states during the antebellum period, their slave codes were abundant in number, but repetitive in substance. Among other things, slaves were forbidden from moving about without some kind of pass or “certificate,” from assembling in large numbers, from staying outdoors past a designated curfew, from owning weapons, and, of course, from raising their hand to strike a white person. And the power of enforcing these codes was invested in all white citizens, whether they were members of state-funded militia or less organized slave patrols, slaveowners or overseers, or merely a white person of any official or unofficial stripe. “[T]he law told the white man, not the Negro, what he must do,” historian Winthrop D. Jordon notes in his classic White Over Black. “All white persons were authorized to apprehend any Negro unable to give a satisfactory account for himself.”?

This generalized authority of white citizens to oversee and effectively police black people is associated with the concept of a “posse comitatus,” a holdover of English origin that empowers governing officials to call forth armed civilians to help enforce the law. Such posse comitatus power, for example, was formally set forth in the Fugitive Slave Act of 1850, which authorized marshals to summon civilians to help enforce the return of fugitive slaves, further stating that “all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law.” While contemporary manifestations of the posse comitatus exist today—whether as artifacts of statutory law or in the informal authority assumed by cop-calling “Karens” and roving right-wing white militiamen—federal troops are, in general, legally prohibited from assuming state and local law enforcement powers. The Posse Comitatus Act of 1878 heralded a legal end to the Reconstruction Era after the Civil War by formally prohibiting the domestic deployment of federal troops to enforce the law—that is, unless otherwise authorized by the Constitution or Congress, thereby preserving such power under the Insurrection Act as an enduring exception.? ?

That George Wallace is not typically cast as an insurrectionist has to do with the historical focal point on black Americans and their unstable status as citizens.

The slave codes of the antebellum period, of course, morphed into the black codes that first started to appear during Reconstruction and later characterized the Jim Crow era. That did not eradicate the core function of such laws: to keep black people in their place. By this time, insurrection against codified slavery was no longer at issue, only insurrection to preserve or upend America’s seemingly indelible racial caste system. The words “preserve or upend,” here, are key—referring to the actual invocation of the Insurrection Act throughout history to either enforce civil rights or suppress so-called race riots. Whether, for example, President John F. Kennedy invoked the Act in order to enforce the desegregation of public schools over the objection of then-Alabama Governor George Wallace, or President Bush accepted then-California governor Pete Wilson’s request to send federal troops to Los Angeles to suppress uprisings in the wake of the acquittal of cops videotaped viciously beating Rodney King, the concept of “insurrection” has been dependent on the sympathies of those in power. That George Wallace—who once said the way to stop looting is to “shoot ‘em dead on the spot”—is not typically cast as an insurrectionist, has to do with the historical focal point on black Americans and their unstable status as citizens.?

This interpretive pendulum—whereby the Act swings back and forth between its use to suppress race riots and to enforce civil rights—is, ultimately, a reflection of the precarious status of black citizens. The very terminology—“black citizen”—was, of course, an oxymoron upon the birth of this very nation. The founders and state officials effectively only acknowledged the status of African-born persons as property—that is, unless they resisted or rebelled, in which case they were the “internal enemy.” This obviously recalls W.E.B. DuBois’s oft-quoted diagnosis that black Americans suffer from double consciousness, measuring themselves through their own eyes as well as through the eyes of “a nation that looked back in contempt.” By the same logic, it must be articulated that white Americans suffer from double vision—a variable sight that originates from the dual status of blacks in America as both property and persons, then both wards and enemies of the state.????

Where the concept of the black citizen is variable and oscillating, incorporating all previous incarnations of the black American’s legal status, the “white citizen” is an invariable, stalwart image—the original citizen. This helps to explain why white nationalists presume to call themselves “patriots”—aligning themselves with revolutionary founding fathers—all the while committing acts of terror in the name of flag. It also sheds light on the numerous incidents where white rioters were deemed unthreatening, and their violent acts—from the deadly protests of white nationalists in Charlottesville (whom Trump referred to as “very fine people”) to the storming of the Michigan state capitol by armed white men protesting ongoing pandemic lockdowns—were not considered an insurrectionary threat warranting federal military intervention.???

Although “insurrection,” under the Act, was legally undefined, in its usage its meaning has become clear. Calling forth the “federal cavalry” has historically suppressed uprisings that regard the unending struggle to fully incorporate black Americans as citizens of the United States. This historical struggle is graphic and violent, representing continuing battles in a “civil war” that began long before 1861 and continues to this day.