The Insurrection Act of 1807 and the Limits of Law

June 12, 2020

(Director’s note: Lee B. Wilson, an Assistant Professor in the Clemson University Department of History, specializes in colonial British America and the early modern Atlantic world.  She received her Ph.D. from the University of Virginia and her J.D. from Fordham University School of Law.  Her book, Bonds of Empire: The English Origins of Slave Law in South Carolina and British Plantation America, 1669-1783, is forthcoming from Cambridge University Press. This is Clemson Humanities Now.)

In responding to last week’s groundswell of protests over police brutality, President Donald Trump took the opportunity to anoint himself America’s “law-and-order” president. Dusting off Richard Nixon’s dog-whistle campaign slogan, he paired an appeal to our baser rather than our better angels with a naked threat.  If local officials failed “to take the actions necessary to defend the life and property of their residents,” he would “deploy the United States military” to “solve the problem for them.”

Trump has the legal authority to do this under the Insurrection Act of 1807, a federal statute that empowers the President to use federal troops for domestic law enforcement purposes under certain specific circumstances. Indeed, Trump’s Rose Garden pronouncement sent journalists scrambling for information about the Act, a somewhat obscure statute signed into law by Thomas Jefferson. The Act does not make for riveting copy on first glance. With roots in early American debates over the military’s proper role in a federal republic and the President’s legal authority as Commander-in-Chief, the Act carves out an exception to an overarching principle of American law: that the military should not intervene in civilian policing.

As a citizen, Trump’s allusion to the Insurrection Act provokes moral outrage. As a legal historian, it commands my attention because tracing its undulating uses allows us to pinpoint the particular set of values that Americans prioritized at any given moment. American presidents — from Thomas Jefferson to George H.W. Bush — have invoked the Insurrection Act at times of acute social or political crisis, but for different reasons and with different objectives. It is the legal historian’s job to ask who benefitted from each of these extraordinary acts of military intervention, and more importantly, at what cost.

The Insurrection Act began as a practical acknowledgement of the new American republic’s fragility. Because the founding generation had a deep mistrust of standing armies, the framers of the Constitution built in safeguards to prevent presidents from using military power to infringe upon the rights of citizens or (taking a cue from Julius Caesar) overthrow the republic. These checks and balances were good in theory, but a string of small-scale insurrections in the republic’s early years revealed that some were unworkable in practice. From the Whiskey Rebellion to the Burr Conspiracy, America’s first presidents were hamstrung by their inability to use federal forces to suppress domestic disturbances, even when these disturbances seemed to threaten the republic’s very existence. In 1807, therefore, Congress remedied this deficiency by passing the Insurrection Act.  The Act empowered the President to use state militias or federal troops “in all cases of insurrection, or obstruction to the laws,” rather than merely to defend against a foreign enemy.

From its origins in the political and constitutional conflicts of the early republic, the Act morphed into a tool for enforcing white supremacy. In Jacksonian and antebellum America “insurrection” took on a decidedly racialized meaning as chattel slavery became more deeply entrenched in the South. This was not an uncontested process. Enslaved people actively resisted bondage in manifold ways, belying the legal fiction that people were property. Rebellion was the most dramatic of these acts of resistance, and in the Jacksonian era, the federal government arrayed the full force of U.S. military might in support of slave owners. For example, when enslaved preacher Nat Turner rallied Virginia slaves to revolt in 1831, President Jackson invoked the Insurrection Act to quash the uprising. Ultimately, Turner and his compatriots were hunted down and judicially executed with the assistance of federal troops.

In welcoming federal military involvement to quell the Nat Turner revolt and protect their “domestic” institution, white Virginians managed to overcome their states’ rights scruples. Over fifty years later, American corporations likewise set aside laissez-faire principles when they sought federal military aid to suppress labor disturbances. For example, when Pullman factory workers struck for better wages and labor conditions in 1894, President Cleveland used his authority under the Insurrection Act to bust the strike. Deploying federal forces to Chicago — ostensibly to ensure the safe delivery of the mail via train — Cleveland only exacerbated the dispute, which resulted in the deaths of at least 30 strikers.

We can roundly condemn these uses of the Insurrection Act, but characterizing the Act as an instrument of terror and repression is simplistic. Indeed, in other hands and in other social and political contexts, Presidents have used the Act to promote a more inclusive vision of America, one in which the federal government acts as a guarantor of rights. In the wake of the Civil War, for example, President Ulysses S. Grant relied upon the Act to suppress the Ku Klux Klan and to prevent the racialized violence that ravaged African American communities. Likewise, during the Civil Rights movement of the 1950s and 1960s, President Eisenhower invoked the Act to enforce the Supreme Court’s ruling in Brown vs. Board of Education.  Federalizing the Arkansas National Guard, Eisenhower wielded his power as Commander-in-Chief to protect black children and integrate Little Rock High School. This trend continued during the Kennedy administration, when the President, using federal troops, forced the University of Mississippi to enroll James Meredith, the school’s first black student.

In these instances, the Insurrection Act allowed Presidents to momentarily jump the constraints of our federal system, to override the state and local authorities who sought to maintain white supremacy. The Act became a powerful tool that enabled the federal government to fulfill its obligations as the enforcer of the new covenant embodied in the Reconstruction Amendments; to render factual Thomas Jefferson’s aspirational statement that “all men are created equal.”

It is easy to laud Presidents like Eisenhower and Kennedy for using the Insurrection Act to promote racial justice and to support the principle of equality before the law. It equally easy to highlight the hypocrisy of Virginia slave holders or Gilded Age tycoons, who sought to restrict the ambit of federal authority, but ultimately relied upon federal military might to buttress their authority. It is much harder to acknowledge that our legal system holds the potential for both outcomes. We like to think that we have engineered a constitutional order that will hold against the most egregious abuses of power, but history teaches us that this is not so. We do not need to look to European or ancient examples to learn that republics are fragile. American history is rife with moments that show us how the flexibility of our constitutional order – the very thing that gives it strength – also renders it vulnerable to weaknesses and failings of our elected officials. Indeed, studying the Insurrection Act lays bare both the possibilities and limits of law in our federal republic. Although law shapes the ways in which Americans engage with the world and with each other, our legal system is not purely autonomous. It depends upon the good will of elected politicians, and of our willingness to hold them to account in the streets and at the ballot box. American society is only as righteous as the citizens that comprise her body politic choose to make her, when they transform potential energy into kinetic through acts of civic participation.

Bio:  Lee B. Wilson is a historian of colonial British America and the early modern Atlantic world. Her research interests include the legal history of early American slave societies, colonial property law, and legal discourse. Dr. Wilson received her Ph.D. from the University of Virginia and her J.D. from Fordham University School of Law. Her book, Bonds of Empire: The English Origins of Slave Law in South Carolina and British Plantation America, 1669-1783, is forthcoming from Cambridge University Press.