Posse Comitatus Act Today

Law Professor Glenn Reynolds, author of the Blog Instapundit links to this news story about the new border "czar," Alan Bersin.  He and Secretary of Homeland Security, Janet Napolitano, met on the bridge over the Rio Grande, between El Paso, Texas, and Ciudad Juarez, Mexico.  Quoting from the AP report:

"The posse comitatus have served this country well," he said, referring to laws that prevent the U.S. military from operating as law enforcement within the U.S.

Ah, the Posse Comitatus Act. Professor Reynolds says:  "Good."

But, while I agree with Professor Reynolds, I think that a too easy agreement, without knowing the history of the Act, is a disservice to our history.  So, we take advantage of the research done by Mr Matt Matthews, out in Leavenworth Kansas. His monograph, The Posse Comitatus Act and the United States Army:  A Historical Perspective, tells us the sorted history of this Act. Here is the Act itself:

After much political wrangling, Kentucky Congressman J. Proctor Knott introduced the following amendment to the Army appropriations bill:

From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years, or by both such fine and imprisonment.

The reason for the act is that the White majority in the South, and in particular the Southern Democrats who again controlled the US House of Representatives, wanted to stop the US Army from interfering in local government, including backing up the US Marshals charged with enforcing the law.

As Matt Matthews points out, what really brought this to a head was the combination of the South regaining its power in Congress after the Civil War and the disputed election of 1876.  Again, Mr Matthews:

The presidential race of 1876 between Republican Rutherford B. Hayes and his Democratic opponent Samuel J. Tilden was so close that a special commission, comprised of members of the House, the Senate, and the Supreme Court, was required to determine the winner. In return for a Democratic promise not to challenge the commission’s findings, President-elect Hayes, in what can only be described as a “back-room deal,” vowed to remove a large portion of the Army from the South.  Furthermore, he assured Southerners that the federal government would no longer interfere in their internal affairs. In this so called “Compromise of 1876,” black civil rights became the first casualty.

Mr Matthews has footnotes at the link above.

So, while the Klan grew, the Posse Comitatus Act kept the US military from getting in the way when federal laws were violated.  Fortunately, we have made good progress in the area of Civil Rights since the period of "Reconstruction," and new concerns exist about privacy Federal Government interference, so I agree with Professor Reynolds.  However, this was originally a law instituted to prevent the enforcement of Federal laws that were designed to prevent bad things from happening to innocent people.

Back to Mr Matthews.  He is a frequent speaker at Civil War Roundtables; and he has appeared on the History Channel as an historian for Bill Kurtis’ "Investigating History."  Mr. Matthews was the mayor and city commissioner of Ottawa, Kansas, from 1993 to 1999.

Regards  —  Cliff