In America, the military does not enforce our domestic laws. America does not use the military to suppress peaceful protests, even if we disagree with the protests. We have always known that tyrants use the military against their own people.
The use and misuse of federal military forces to enforce laws and basic order are deeply, and darkly, rooted in Mississippi and Southern history. The deployment of California National Guard troops by President Trump to “address the lawlessness” in Los Angeles is redolent of another century.
In fact, the last time such a deployment occurred, bypassing the state governor, was last century, in 1965, when President Lyndon Johnson activated the Alabama National Guard without the cooperation of Alabama’s segregationist governor, George Wallace. LBJ did so with good reason. Not only were state law enforcement officers not protecting peaceful protesters, they were the ones inflicting horrendous violence on the 600 protesters crossing the Edmund Pettus Bridge at Selma, resulting in a massive number of injuries and four deaths.
In America, federal troops, including “federalized” troops, are not used in domestic law enforcement by law (with very few exceptions). This dates back to the post-Civil War era in the South, when federal troops were used to enforce the Equal Protection Clause of the 14th Amendment because local sheriffs and police officers would not protect the newly freed African Americans.
Mississippians, and most Southerners, hated the presence of federal troops in the South, and in 1878, a deal with the devil was made by President Rutherford Hayes to withdraw troops and to pass the Posse Comitatus Act. The deal effectively threw federal troops out of the South and allowed the white supremacists to suppress Black and Republican votes. One good result of the deal was the Posse Comitatus Act, which prevents the use of armed forces to enforce domestic laws unless expressly authorized by Congress or the U.S. Constitution. Posse comitatus is a $50 Latin phrase lawyers use to talk about a sheriff who mobilizes citizens to suppress lawlessness in the jurisdiction.
Even though 1878 is when the prohibition of the use of U.S. military to enforce civilian laws was codified, it is an American principle that echoed through history back to the Founders. Why? The Founders had direct experience of British troops enforcing oppressive laws without mercy or appeal.
In a conversation with ABC News, Steven Levitsky, one of the authors of “How Democracies Die,” has stated that in the large majority of cases, autocrats justify appropriating military power to use against citizens by claiming “there’s an enemy within that’s more dangerous than our external enemies and that justifies the use of extra-constitutional measures.”
There are limited, narrow exceptions to the prohibition of the use of military forces for law enforcement. A law from 1807, the Insurrection Act, allows the president to use military and National Guard forces to stop an invasion, threat of invasion or a rebellion. But the U.S. has not been invaded despite the Trump administration’s attempt to characterize illegal immigration as an invasion. Federal judges, including judges appointed by President Trump, have stated the U.S. is not being invaded. No invasion means that the president may not invoke the Insurrection Act.
As recounted so well in the book An American Insurrection: The Battle for Oxford, Mississippi, 1962 by William Doyle, President Kennedy federalized the Mississippi National Guard in response to violence occasioned by the enrollment of James Meredith, an African American, in the University of Mississippi. Kennedy ultimately deployed the Army’s 503rd Military Police battalion, the 82d Airborne and the Oxford-based National Guard Troop E to quell a riot that resulted when Mississippi Gov. Ross Barnett and state leaders pointedly withdrew state and local police and abandoned the Ole Miss campus to rioters. That riot resulted in two deaths and injuries to over 160 federal officers, including 28 federal marshals who sustained gunshot wounds. Kennedy was justified in using the military.
There is no invasion, no rebellion in California. Legal, peaceful protests are not reasons for the deployment of federal troops. If law enforcement in the state of California is being overwhelmed, the state can send in reinforcements from other cities, from the state Highway Patrol, or the governor can decide to use California National Guard. None of this was warranted.
The reason this must matter to Mississippians, and all Americans, is that our Founders had a reason to fear presidents who deploy federal troops against American citizens. If a president can wield military force against U.S. citizens on a flimsy or politicized excuse, he can suppress speech, lawful assembly and a host of other constitutional rights with impunity. Every dictator, every authoritarian, has not become so until he has gained control of the citizenry with the military.
Some people might like the outcome in California, the suppression of the protesters, some of whom became violent. If that is so, you might consider how you would feel if a different president were using the military in Mississippi in a similar way, say perhaps Obama, Biden, Clinton, even George W. Bush. It should not matter which party is in power; in America, we don’t allow the military to enforce the law against citizens, even citizens with whom we disagree.
From a national and homeland security standpoint, there is another argument against using the National Guard for political reasons. The National Guard is made up of men and women who have day jobs, own their own businesses or punch a time clock, and they work to keep food on the table for their families. You can think of this valuable resource like a gas tank. Once you use it up, it is gone.
We need our National Guard for natural disasters and emergencies. California needs its National Guard for major fires, earthquakes and other emergencies. It should not be wasted on deployments that can be and were being handled locally. And the Marine Corps is needed to protect us from China and Russia. It is a misuse of the Marine Corps to have them on the streets of Los Angeles.
But the compelling argument is that presidents cannot and should not be trusted with the power of deploying the military against its citizenry without real constitutional justification. My wife is a retired school teacher who taught her students George Orwell’s Animal Farm, an incisive parody of Stalinist Russia. She would ask her students “at which point did the farm animals irreversibly lose control of the farm?” The answer? When the autocratic pigs grew the puppies into attack dogs to control the farm animals.
Jamie Barnett is a native Mississippian and a retired rear admiral in the U.S. Navy, having served 32 years. He served as chief of the Public Safety and Homeland Security Bureau of the Federal Communications Bureau. He is currently an adjunct professor of national security in the Center for Intelligence and Security Studies at the University of Mississippi. The opinions expressed in this article are the author’s alone and are not expressions of the views of any of the organizations with which he is associated.