Civil Unrest and Presidential Power: What History Teaches
The current civil unrest in this country involves violent Marxist and left-wing rioters assaulting and sometimes killing police, vandalizing businesses, defacing and destroying statues and places of worship, threatening and harming innocent citizens, and paralyzing cities like Chicago, Portland, and Seattle, while far-left mayors, governors, and district attorneys do nothing but watch (and sometimes applaud), and place ludicrous restrictions on law enforcement’s ability to restore order. The forces of political rebellion — that, and not the murder of George Floyd, is at the heart of the unrest — seek to overthrow America’s capitalist democratic republic and replace it with their vision of a Marxist/socialist paradise.
President Trump has mobilized federal law enforcement to help local and state police deal with the riots and violence, and has talked about deploying military force. Were the president to do the latter, there is much historical precedent on which he can rely.
Violent civil unrest and political rebellion are not unprecedented in the United States. In 1794, citizens in western Pennsylvania engaged in widespread violence to protest the imposition of taxes on whiskey. But as James Thomas Flexner noted in Washington: The Indispensable Man, the protest against the whiskey tax swiftly transformed into “active class warfare.” The western Pennsylvania frontiersmen targeted the wealthier inhabitants who operated commercial stills and could afford to pay the tax. “An insurrection developed,” Flexner explained, “the still of any man who paid the tax was wrecked, government representatives were seared with hot irons, mail bags were taken at gunpoint and citizens persecuted . . .”
Government ceased to function in western Pennsylvania and the rebels formed “Democratic Societies” that encouraged like-minded citizens to join the rebellion. “There was talk,” Flexner wrote, “of establishing a separate trans-Alleghenian nation, or of marching on Philadelphia to force on the federal government measures dictated by the frontier.”
When George Washington dealt with rioting
President George Washington expressed the fear that if a mob were permitted to dictate to the majority, “if the laws are to be so trampled upon with impunity, . . . there is an end put at one stroke to republican government, and nothing but anarchy and confusion is to be expected thereafter.”
Washington had put down an earlier, smaller rebellion in Massachusetts in 1786—Shay’s Rebellion—by first recognizing and defining “legitimate grievances,” and taking steps to address the grievances. But, if the unrest continued in Pennsylvania, Washington would “employ the force of government.”
The president dispatched commissioners to the region and insisted that the insurgents must “disperse and retire peaceably.”
He then issued orders for nearly 13,000 militia (including from the surrounding states of New Jersey, Maryland, and Virginia) to prepare to impose order. Washington, with Alexander Hamilton at his side, would lead the troops to impose order if necessary. The army marched west and the rebellion ended. One hundred fifty insurrectionists were arrested, 20 were indicted, and two were sentenced to death — Washington magnanimously pardoned them.
Washington had justified his suppression of the Whiskey Rebellion by issuing the following proclamation:
[I]t is in my judgment necessary under the circumstances of the case to take measures for calling forth the militia in order to suppress the combinations . . . and to cause the laws to be faithfully executed; and I have accordingly determined so to do, feeling the deepest regret for the occasion, but withal the most solemn conviction that the essential interests of the Union demand it, that the very existence of Government and the fundamental principles of social order are materially involved in the issue.
Washington succeeded, biographer Richard Brookhiser explains, by exposing the most extreme leaders of the rebellion and deploying “overwhelming force.”
Adams used military force to quash rebellions, too
Five years later, President John Adams confronted another, though less serious, tax rebellion — again in Pennsylvania. Known as Fries Rebellion (after one of its leaders John Fries), it involved active, sometimes physical, resistance to federal tax collectors in southeastern Pennsylvania. Revenue officers were scalded with hot water, physically assaulted, and held hostage. When the perpetrators were arrested and jailed, Fries led a band of rebels to forcibly free the prisoners. President Adams sent federal troops to restore order. More than 40 rebels were arrested and prosecuted. Fries and several other leaders were convicted of treason and sentenced to death.
President Adams, like Washington, issued a proclamation justifying his suppression of the rebellion:
Whereas by the Constitution and laws of the United States I am authorized, whenever the laws of the United States shall be opposed or the execution thereof obstructed in any State by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals, to call forth military force to suppress such combinations and to cause the laws to be duly executed . . .”
Early in the republic, therefore, the nation’s first two presidents justified the use of military force to suppress violent protests under their Constitutional power to take care that the laws of the United States be faithfully executed.
In 1807, President Thomas Jefferson signed into law the Insurrection Act, codified at Title 10, United Stated Code, Sections 251-254. The Act provides as follows:
Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection. (10 U.S.C. Section 251)
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. (10 U.S.C. Section 252)
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 it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. (10 U.S.C. Section 253)
Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time. (10 U.S.C. Section 254)
Lincoln resorted to war to supress rebellious states
Of course, the most serious domestic rebellion in our nation’s history was committed by the Confederate States between 1861 and 1865, and President Abraham Lincoln exercised extraordinary executive powers to wage war against and suppress the rebellious states. At the outset of the rebellion, Lincoln imposed a naval blockade and seized ships. When his actions were challenged, the Supreme Court in the Prize Cases explained that the president had broad powers to suppress an “insurrection,” and that it was the president, not the courts, that “must determine what degree of force the crisis demands.”
Lincoln suspended the writ of habeas corpus and twice extended the territory covered by suspension of the writ, despite a federal court’s ruling in Ex Parte Merryman that he lacked the power to do so. Lincoln’s army arrested 31 Maryland state legislators who planned to vote for secession. His Postmaster General denied the use of the mails to several newspapers that did not support the Union. His Secretary of State withheld a federal judge’s salary and placed a military guard at the judge’s residence after being advised that the judge opined that the rebellion would seize Washington, D.C. Lincoln authorized U.S. Marshals to arrest and imprison “any person or persons who may be engaged by act, speech, or writing, . . . or in any way giving aid and comfort to the enemy, or in any other disloyal practice against the United States.”
The president also issued a proclamation that persons who engaged in disloyal practices were subject to trial and punishment by military commissions.
In 1877, President Rutherford B. Hayes dispatched federal troops to protect mail and put down riots in numerous cities associated with a railroad strike. Hayes explained his authority:
Without passion or haste, the enforcement of the laws must go on. If the sheriffs or other state officers resist the laws, and by the aid of state militia do it successfully, that is a case of rebellion to be dealt with under the laws framed to enable the Executive to subdue combinations or conspiracies too powerful to be suppressed by the ordinary civil officers of the United States. This involves proclamations, the movement of United States land and naval forces, and possibly the calling out of volunteers . . . Good citizens who wish to avoid such a result must see to it that neither their State Governments nor mobs undertake to prevent United States officers from enforcing the laws. My duty is plain. The laws must be enforced.
Anarchists, communists, bonus seekers
In 1894, President Grover Cleveland, despite objections by the Illinois Governor, ordered federal troops and the National Guard to quell civil unrest surrounding a Pullman strike.
In the summer of 1919, in the aftermath of the Bolshevik seizure of power in Russia and the First World War, and in the midst of a wave of labor strikes and a flu pandemic, anarchists and suspected communists launched a series of coordinated bombing attacks against judges, law enforcement officials, politicians, mayors, and others in eight cities. One of the targets was U.S. Attorney General Mitchell Palmer. A radical exploded a bomb near Palmer’s New York residence (his neighbor across the street was future President Franklin D. Roosevelt, who reportedly was shaken by the blast). Postal authorities intercepted packages containing bombs addressed to business leaders, including John D. Rockefeller and J.P. Morgan
Attorney General Palmer created a strike force headed up by J. Edgar Hoover, then a lawyer with the Justice Department. With Palmer’s backing, Hoover’s strike force launched a series of raids of suspected anarchists and communists. Thousands of suspects were arrested in more than 30 cities in 23 states. Hundreds were deported. The raids and mass arrests were initially applauded, but later criticized for excesses and alleged unconstitutional actions. But the bombings stopped.
In 1932, President Hoover sent army troops commanded by General Douglas MacArthur to disperse the so-called “Bonus Army,” nearly twenty thousand Great War veterans who constructed a shantytown of tents and huts near the Anacostia River, south of Washington, D.C., demanding bonuses that were promised to them in 1924. They refused to leave.
Historian Arthur Herman notes that President Hoover and General MacArthur believed that the massive protest was organized by Communists — and there was some truth to those beliefs. One of the leaders of the Bonus Army later admitted that his Communist superiors ordered him “to provoke riots . . . and to use every trick to bring about bloodshed” so the army would intervene. Riots broke out, and police were attacked as protestors hurled bricks at them. When Hoover ordered the troops to disperse the rioters, some of the huts and tents were torched — not, however by the army, but by radicals within the Bonus Army. Among the protestors who were arrested were some with violent criminal records, including members of Communist organizations.
In 1957, local and state authorities in Little Rock, Ark., defied the enforcement of federal law by attempting to forcibly keep African-American students from attending Central High School. After efforts to negotiate their admission failed, President Dwight Eisenhower sent a thousand paratroopers of the 101st Airborne Division and federalized more than 10,000 National Guardsmen to ensure that local and state officials and an angry mob did not prevent the enforcement of federal law. Eisenhower acted under his Constitutional authority to see that the laws be faithfully executed and in compliance with the Insurrection Act. Before acting, the president issued a proclamation that stated in part:
The Federal law and orders of a United States District Court implementing that law cannot be flouted with impunity by any individual or any mob of extremists. I will use the full power of the United States including whatever force may be necessary to prevent any obstruction of the law and to carry out the orders of the Federal Court.
Keep calm and carry on
In a letter to an army general, Eisenhower noted that, “The Federal government has ample resources with which to cope with this kind of thing. The great need is to act calmly, deliberately, and giving every offender opportunity to cease his defiance . . . and to peaceably obey the proper orders of the Federal court.
“In this way,” the President continued, “the actions of the Executive in enforcing the laws—even if it becomes necessary to employ considerable force—are understood by all, and the individuals who have offended are not falsely transformed into martyrs.”
Writing in his memoirs about his decision to send federal troops to Little Rock, Eisenhower placed his responsibility to faithfully execute the laws in historical context, noting “Thirteen of my predecessors in office, beginning with President Washington, had used troops to put down domestic civil disorders.”
In 1967, to quell riots in Detroit that left 43 people dead and massive property damage, President Johnson at the Governor of Michigan’s request sent 5,000 U.S. Army troops and National Guardsmen to restore order. He acted again when rioters in Chicago in 1968 killed 12 people and destroyed more than 160 buildings. Johnson also dispatched federal troops to Los Angeles, Baltimore, and Washington, D.C. to quell riots during the turbulent 60s.
The Constitution, the laws, and historical precedent support a strong federal response to the current unrest. Even without such precedent, Thomas Jefferson, who as noted above signed into law the Insurrection Act, believed that in times of crisis, Presidents may have to rely not on a “scrupulous adherence to written law” but on the “laws of necessity, of self-preservation, of saving our country when in danger.” “To lose our country,” said Jefferson, “by a scrupulous adherence to the written law would be to lose the law itself, with life, liberty, property . . . ; thus absurdly sacrificing the end to the means.”