Old Law, New Problems

Just exactly what is a posse comitatus law and how does it relate to crime in America?

The Posse Comitatus Act of 1878 is now being used against President Trump, who has sent federal troops into United States cities, and plans to enlarge the scope of the National Guard with respect to crime in America.

There was debate about the Posse Comitatus Act during the Vietnam War when the feds were involved in tamping down anti-Vietnan protests and were concerned with the burning of American cities.

The Act came into play when President Eisenhower sent federal troops down south to enforce desegregation of schools under the famous Supreme Court Decision of Brown v. Board of Education of Topeka Kansas. The desegregation decisions were either ignored by the southern officials, along with their Democratic allies in Congress, or were accompanied by civil unrest.

Why was the Posse Comitatus Act passed? The internet has all kinds of bogus reasons explaining the passage of the Act and its justification. The reality, however, is that the Democrats in Congress wanted to put an end to Reconstruction. After the Civil War, there was real opportunity that African Americans, formerly enslaved, would become high public officials throughout the South and would be in control of their own destiny.

Originally, the Ku Klux Klan and their Democratic supporters in Congress were determined to re-impose slavery.  There was great alarm that post-Civil War, African Americans were being elected to important political positions.  Heaven forbid, that the newly emancipated slaves might actually become part of the American civil experiment.

President Grant, in particular, was initially interested in making sure Reconstruction really worked.  His Attorney General, Amos T. Ackerman, moved from New Hampshire to the southern United States and successfully prosecuted more Ku Klux Klanners than any Attorney General, up to the present.  Grant ultimately fired his Attorney General, not because of his aggressive prosecution of those who infringed the rights of Black people, but chiefly because the newly empowered railroads were uncomfortable with the integrity of Grant’s Attorney General.

Federal troops, occupying the South, were often used to protect the former slaves, to make sure they could exercise their right to vote, and to enforce newly enacted civil rights legislation which was the product of the Republican majority in Congress.

As the Reconstruction movement began to wane, efforts were made to tie the hands of the federal government so that it would not be in a position to protect the emancipated slaves.  The major agenda of the political establishment in this country, post-Civil War, and the Democrats in Congress was to neuter federal enforcement of laws passed to protect Black people.

The Posse Comitatus Act of 1878 attempted to remove the military’s role in civil law enforcement, allegedly in response to abuse that resulted from extensive use of the army during  Civil War Reconstruction.  Nonsense!  The legitimate, newly elected Reconstruction legislators, particularly, but not only in the South, needed the enforcement action that could only be supplied by the federal government.

In reality, the Civil War continued after the surrender of the Confederates.  In fact, after the Civil War, the attack against the civil rights of many Americans accelerated.  The end of the Civil War also brought about the development of powerful corporations in what became known as the Gilded Age.  Industrialization created horrendous working conditions in the mines and factories of the United States.  The change in the American workforce, and the exploitation of  workers all combined with frequent attacks on American Black citizens.  The states were either not in the position to protect their citizens, or in many cases did not care to.

The Posse Comitatus Act was intended specifically to strip the federal government from enforcing laws designed to protect those requiring the protection of the United States of America.

There is no question that any law can be overused, exaggerated and distorted.  Was the federal power overused during reconstruction and rapid industrialization in the United States?  Was the intent of Congress when it passed the Posse Comitatus Act of 1878 totally to denude the federal government from per forming its traditional role to effectuate a true union of the states into the tapestry that has become the United States of America?

This leads us directly to the question as to whether the Act, as designed, can be used in American inner cities where crime is rampant and out of control.  Chicago, for example, defends itself by saying that crime has actually dropped 30% in the last year. What the statisticians do not tell the American people is that the way and manner of counting crime statistics has changed.  Many crimes considered “petty” are no longer counted among the statistics in our big cities.  Fewer crimes are prosecuted in most major American cities and in some cases, robbery, without the use of a weapon absent physical harm, is not counted at all.  That is also true of domestic disputes and other crimes considered to be “victimless.”  Therefore, when politicians claim that crime has dropped 30% in the last year in Chicago, make sure that apples and apples are being compared.  What is behind the statistics is almost never discussed by the media.  What is important to know is what do the crime statistics look like for murder, rape, and armed robbery?  How have they changed from year to year in American cities?

Most of the big cities, fearing the entrance of federal troops, claim that all they need is money to clear up the problem.  We know that government, especially municipal government, is great at spending money and doing little with it, other than raising the salaries of bureaucrats and adding to the number of civil servants.  Money in the past has not reduced the frightening crime rate in our cities.

Citizens should ask themselves how willing they are to go into the majority of neighborhoods in any American city during the day, let alone at night.  Most American cities are so dangerous, that foreigners who visit our country are regularly given instructions as to what neighborhoods not to go into, what time of day to stay away from other neighborhoods and how to avoid the scourge of crime.

We should not always be afraid of the use of federal forces in America’s bigger cities.  The question is whether they are used appropriately, respect due process rights by those who are entitled to due process under our Constitution, and whether the results are positive. It seems that both the President and officials in America’s great cities are more interested in generating political capital from the crime problems facing the big cities than resolving any problems.  Our emotions and opinions are swayed and manipulated by every piece of news, trivial and significant.

Eventually the courts will weigh in on whether the Posse Comitatus Act of 1878 permits federal troops to be utilized under the conditions faced in the big cities.  What the federal government should do is to create a publicized set of criteria as to when troops will be sent in, the reasons therefore, and the need for that particular approach as opposed to other alternatives.

Sometimes in American politics, it is a question not of what action is appropriate, but rather whether the reasons therefore have been explained satisfactorily to American citizens.  President Trump needs to articulate the clear and present reasons for an intervention of federal troops into America’s great, but crumbling and dangerous, cities.