Insurrection in the Eye of the Beholder

tags: Insurrection Act

Hawa Allan writes cultural criticism, fiction, and poetry. She is an essay editor at The Offing and her work has appeared in the Chicago TribuneLapham’s Quarterly, and Tricycle magazine, where she is a contributing editor. Her book Insurrection, a weaving of personal narrative and legal history, is forthcoming from W.W. Norton.

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, the New York Times reported 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.”


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.

Read entire article at The Baffler

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