In the aftermath of the tragic shootings at Kent State University on May 4, 1970, few commentators spent much time pondering the legal context undergirding the National Guard’s deployment to campus.1 As the emotional reverberations of what Time magazine called the “martyrdom that shook the country” resonated throughout American society, the connections between the military and the democratic republic it protected seemed as frayed as they had ever been. Indeed, after the events of the late 1960s, it did not take a pessimist to conclude that democratic values were antithetical to both the military as an institution and the application of state-sanctioned force. As the mother of a participant in the My Lai massacre charged, “I gave them a good boy, and they made him a murderer.” Indeed, some veterans of the Vietnam War even joined the chorus: “Yea as I walk through the valley of death,” a veteran-poet proclaimed in 1972, “I shall fear no evil / For the valleys are gone / And only death awaits / And I am the evil.” It remained an open question whether the military could ever regain its high standing in the eyes of Americans, who, by the early 1970s, did not simply blame the highest levels of civilian and military leadership for unrest at home and abroad, “but apparently harbored not just a lack of confidence in the military, but a deep distrust of it.”2
It had not always been this way. A century before the tragedies of Vietnam and Kent State, a sizable portion of the United States Army was ordered into the streets of ordinary American communities to maintain order. In this instance, however, they arrived under orders distinctly different than the ones guiding the National Guard when it arrived on campuses throughout the United States during the Vietnam War era. With the occupation of the South after the Civil War, the U.S. Army gained many responsibilities, not least of which was its transition into an army of democracy. By protecting the electoral process and by ensuring that citizens—most notably former slaves and their white Republican allies—would enjoy the equal protection of the laws, the extension of certain basic rights, and the benefits of due process, the U.S. Army became an important player in the struggle to remake America. A significant part of this struggle would revolve around the army’s ability to serve as auxiliary law enforcement for sheriffs, marshals, and police officials otherwise outgunned and undermanned. Given the Southern context, these duties put the U.S. Army at the forefront of the civil rights struggle after the Civil War. While the doctrine that guided this usage of the army, posse comitatus, may strike modern readers as foreign, it had actually served as a bulwark of both federal and state authority since the first days of the republic. So important was it, in fact, that the Democratic Party believed that curtailing the military’s posse comitatus powers served as an important tool in the counterassault on Reconstruction. As such, posse comitatus is an important element not only of Reconstruction, but also of the larger quest to build a more democratic America.
Arriving on American shores via English common law, posse comitatus proved an indispensable tool for federal officials from the founding of the United States through the 1870s. It did so, as an expert in the history of American military interventions in civil society reminds us, in “the absence of specific statutory authority.”3 An outgrowth of governmental weakness, posse comitatus emerged in medieval England as a tool for local sheriffs seeking to apprehend wrongdoers. Since sheriffs had no permanent body of undersheriffs assisting them, English common law authorized local officials to “enlist the direct aid of civilians in carrying out their enforcement duties.”4 The colonies of British North America continued this practice, as did the newly independent United States, the laws of which allowed federal marshals to call out posses.
In time, however, the American usage of posse comitatus came to diverge significantly from medieval English precedent: in the United States, local law enforcement regularly employed federal military forces as the posse comitatus, whereas British custom and law held, as The Lord Bathurst put it, “if the Army be sufficient for protecting the people, they must be sufficient for subduing and enslaving the people, as soon as their superiors shall give them a word of command.”5 Even after majoritarian political sentiment shifted in eighteenth-century Britain to permit the existence of a standing army and to countenance use of the military in civil society to maintain order, it is telling that most political elites regarded these developments as “legal unconstitutionalities.” The hand-wringing over these issues in Great Britain, however, most ably exposed in the scholarship of John Phillip Reid, had no direct equivalent in the United States.6 While nothing in federal law prohibited the use of the military in this manner, nothing explicitly allowed it either. It took the uproar over federal enforcement of the Fugitive Slave Act of 1850 in the North for Attorney General Caleb Cushing to lend the semblance of legality to what Americans had been doing for decades. In an official opinion composed in 1854, Cushing wrote, “The posse comitatus comprises every person in the district or county above the age of fifteen years, whatever may be their occupation, whether civilians or not; and including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of the sheriff or marshal. The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus.”7 From this point on, the “Cushing Doctrine” seemed to sanction federal assistance to law enforcement officials of all stripes. Although observers might wonder at their discipline and organization, federal troops (in practice, it was the army that received the vast majority of posse comitatus requests) were nothing more than civilians under arms, even if enlisted men in these detachments came not of their own free will but under orders.8
Most nineteenth-century Americans, however, never encountered soldiers fulfilling the function of a posse comitatus. Like so many of the army’s other duties, its work enforcing domestic law generally took place on the margins of the country, where wide-open spaces and small populations made the army an outsize exemplar of federal authority. In these settings, expansive jurisdictions, a lack of manpower, and small budgets combined with local resistance to all varieties of law enforcement and a fair dose of political corruption to create the perfect environment for disorder. “These realities,” Michael Tate remarks, “left only one other legally constituted body with enough manpower and proper mandate to fill the enforcement void—the U.S. Army.” Hence, within a generation of American independence, the task of “routinely bolstering civilian law enforcement authorities on the frontier” became one of the U.S. Army’s primary missions. Not surprisingly, when given the option, local law enforcement officials called on federal troops frequently, either by directly appealing to the president or by appealing to federal marshals, his statutory proxies. For local officials, relying on federal forces might help deflect the animosity of locals opposed to law-and-order drives, while also allowing them to protect their budgets, since the army would bear the brunt of the expenses. This reality of life in the American West, supplemented by military interventions in labor disputes and anti-Chinese outrages, would persist for the rest of the nineteenth century, even as the larger posse comitatus policy underwent serious revision.9
While the use of federal forces for law enforcement during the first half of the nineteenth century at times provoked minor controversies, posse comitatus only became an object of sustained discussion in the wake of Congressional Reconstruction. Although most contemporary references—including scholarly ones—describe a “Posse Comitatus Act of 1878,” such an act does not exist. Instead, what today’s commentators misidentify as the “Posse Comitatus Act” actually emerged from the contentious politics of the 45th Congress, which confronted President Rutherford B. Hayes with a Democrat-controlled House of Representatives, and a Republican Senate. Eager to permanently eliminate the possibility of future federal intervention in the states of the former Confederacy, the Democratic House began attaching a series of riders to usually innocuous appropriations bills, riders that sharply constrained federal powers or defunded vital elements of federal enforcement. This attempt by the Democrats to radically reshape federal policy and prerogative through the appropriations process—what Leonard White long ago labeled “coercion by riders”—not only prevented open debate of these significant changes (since Democrats forswore the usual legislative process), but was a tactic they continued to employ throughout the Hayes administration.10 While most of these attempts were parried by the Republican Senate or Hayes and his veto pen, the Democrats did score some tactical victories. Most important among these was Section 15 of the 1878 Army Appropriations Act, which read:
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; and 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.11
And with that, a new chapter in the military’s long history as an agent of domestic law enforcement had begun.
To this day, the so-called Posse Comitatus Act of 1878 lingers as a minor, albeit exotic, pillar of mainstream American politics. The media environment in which Americans live today is not known for its grasp of nineteenth-century events, yet it is not difficult to find invocations of the “Posse Comitatus Act” in coverage of crises that arguably warrant federal intervention. Following the terrorist attacks of September 11, 2001, the concept briefly garnered attention in the national debate over the Bush administration’s counterterrorism proposals. It even served as the title of and the inspiration behind the 2002 finale of West Wing, an accomplishment probably unique among nineteenth-century appropriations bills.12 Shortly thereafter, in the dire aftermath of Hurricane Katrina in 2005, national coverage of the Bush administration’s deliberations regarding the proper federal role in the emergency often referenced posse comitatus.13 When it comes to the Civil War era, however, posse comitatus was much more than a peculiar remnant of medieval England. On the contrary, it proved absolutely central to the success of Reconstruction on the ground, since using the thousands of federal troops stationed in the South as extremely well-armed and disciplined police officers provided at least some hope of containing disorder enough to permit the remaking of Southern society. It also, contrary to both popular perception and scholarly opinion, remained a viable option for policy makers interested in protecting the rights of African Americans after 1877, thanks to a statutory exception, originating in the 3rd Enforcement Act (1871), purposely inserted into the congressional bill that revised posse comitatus policy in 1878.
This finding runs counter to the dominant trends in the historiography of Reconstruction. In fact, some historians regard Congress’s decision to revise the United States’ traditional approach to posse comitatus as one of the nails in the coffin of federal intervention into the South. In his 2009 study of Reconstruction in North Carolina, for example, Mark Bradley makes two erroneous claims: first, that “the army appropriation bill of 1878 … prohibited the use of soldiers as a posse under civil officials,” and second, that a “Posse Comitatus Act of 1879 made the prohibition permanent.” James Hogue’s Uncivil War, which provides a compelling introduction to the street battles defining the contours of Reconstruction in New Orleans, likewise wrongly insists that Hayes signed an army appropriations bills “forbidding the use of federal troops as a posse comitatus,” although this inaccuracy is somewhat counterbalanced by Hogue’s recognition of Democrats’ continuous efforts to “eviscerate” the army and his discussion of the persistent conflict between Hayes and Democrats in the late 1870s and early 1880s over the meaning of Reconstruction.14
More frequently, however, historians working on Reconstruction ignore the subject of posse comitatus entirely. For example, not only does Eric Foner fail to mention posse comitatus in his magisterial Reconstruction: America’s Unfinished Revolution, 1863–1877, but its index also neglects to include an entry for the United States Army, the force that implemented Congressional Reconstruction. (It does contain one for the Union Army.) A more recent well-regarded synthesis of the period by Michael Fitzgerald grants more space than Foner to military Reconstruction but still pays no attention to posse comitatus.15 The concept is also absent from William Blair’s 2005 article, “The Use of Military Force to Protect the Gains of Reconstruction”; most of the article, in fact, dwells on the military’s role in the South before 1870.16 Finally, Michael Vorenberg’s forceful call on historians to reinvigorate the study of Reconstruction by reexamining its legal and constitutional context—matters of crucial importance to any consideration of the military’s enforcement of civil rights—bypasses the subject of military intervention altogether.17
A few factors seem most responsible for this oversight. First, one consequence of Foner’s work has been to root the study of Reconstruction into the society, culture, economy, and politics of the nation as a whole. While this approach has undoubtedly expanded our knowledge of period, it has also tended to marginalize events on the ground in the South, where military interventions were most felt. Second, the traditional tendency of Reconstruction histories to stop their accounts with the Compromise of 1877 leaves outside their purview later congressional battles over the deployment of the military in civil society. Finally, the persistent failure of historians to integrate war and the military into mainstream social, cultural, and political histories of Reconstruction has produced an enormous blank spot on the map of historical knowledge, even though, as one student of the United States Army during Reconstruction points out, “the army was the only agency of the federal government that could have policed the South.”18
For all this, one would be remiss in ignoring the scholarship produced by historians interested in the Hayes Administration or in Gilded Age politics more broadly. Scholars like Charles Calhoun and Ari Hoogenboom, for example, have understood that the furor over posse comitatus early in Hayes’s term was but one flank in a heated battle over Reconstruction that continued after the infamous Compromise of 1877. Calhoun’s Conceiving a New Republic revolves around this conflict, in fact, as various chapters identify in detail the struggle of Republican presidents to protect the gains of Reconstruction. While Conceiving a New Republic does not mention posse comitatus in its account of the events of 1878, Calhoun emphasizes its importance to the Hayes administration after 1879.19 Meanwhile, Hoogenboom identifies the posse comitatus battle as possessing far-reaching significance for the Democratic campaign to roll back Reconstruction, but his chronology places it in the wrong year. This inaccuracy may stem from Hoogenboom’s tendency to follow Hayes’s line of thinking that reform in the South could be achieved only through “civil processes—not military force.” Nevertheless, Hoogenboom also recognizes Hayes’s consistent belief “that federal civil authorities be able to call on the military to suppress violence” during national elections; Hoogenboom’s sense of the stakes involved in these battles can be gleaned from his willingness to quote an extended entry from Hayes’s diary wherein the president commented, “We are ready to muster out the soldiers, but we dont [sic] muster out the flag nor the powers of the law and of the Constitution, which enables us to gain the victory. We dont [sic] muster in again the evils that caused the War. Besides it is for the victors to say what shall remain—not for the vanquished.”20
Even though the scholars cited above display little interest in the military as a historical subject, experts in nineteenth-century military history do exist, even if they are few in number. If one adds to their contingent individuals with an expertise in military law and tracks down work in both genres, one can uncover more detailed discussions of posse comitatus.21 Tellingly, these accounts tend to miss the 3rd Enforcement Act’s relationship to statutory exemptions from posse comitatus restrictions, to misstate the actual policy, or to emphasize the blanket constraints placed upon the army.
Surprisingly, military historians have handled posse comitatus less well than one might expect. What has long been the the standard overview of the army’s experiences during Reconstruction, James Sefton’s The United States Army and Reconstruction, 1865–1877, does not even address the subject, for instance. Meanwhile, those studies that do introduce posse comitatus tend to be truncated. For example, Jerry Cooper’s classic study, The Army and Civil Disorder, notes that while the posse comitatus revisions did not eliminate domestic intervention by the army, they had been intended to lessen “the future possibilities of a federal military presence in a political setting.” Furthermore, he correctly observes that exceptions to the act existed; his emphasis on industrial disturbances, however, leads him away from the civil rights connection.22 Robert Wooster’s award-winning The American Military Frontiers is less useful, since it inaccurately declares that Congress, not the president, controlled the deployment of regulars in civil society. At the same time, his expertise in Western history leads him to recognize that the army continued to exercise its traditional posse comitatus role in the midst of chaotic frontier communities.23 Finally, Michael Tate’s The Frontier Army in the Settlement of the West, the broadest study of the army’s noncombatant roles during the nineteenth century, establishes that while the 1878 Army Appropriations Act “seemed to have closed the door forever on military aid to civilian law enforcement,” it actually did nothing of the sort. Tate provides ample evidence that despite “growing public dissatisfaction with the army’s continued service as a domestic constabulary,” in fact, “most military officers” ignored the “threat of possible legal reprisal,” and continued to serve as posses, often at their own discretion. Yet while his account is extremely useful in showing how the dictates of posse comitatus were circumvented by army officers in the West, it misses the potential connection to civil rights enforcement, as Tate claims that “the only routine exceptions allowed for the military were protection of Indians, public lands, and international neutrality laws, which were covered by other pieces of legislation.”24
Early attempts to codify military law into textbook form demonstrate full awareness of posse comitatus. Major William Birkhimer’s 1892 study, Military Government and Martial Law, even contained an entire chapter, “Martial Law in States and Territories,” that opened with the declaration that, posse comitatus or not, “the President may act within the States independently of State authorities and even against their wishes. There have been numerous instances of this exercise of power in the history of the Government.” Yet Birkhimer, joining many of his contemporaries in the Gilded Age in bemoaning the rise of “disorder,” declared that “posse comitatus has signally failed,” because “it was put a stop to by act of June 18, 1878.” Arguing that this posse comitatus action by Congress had been “based on political considerations alone”—considerations “of doubtful constitutionality”—Birkhimer asserted that it had destroyed an important bulwark of social order. However, nowhere in his account does Birkhimer give a clear and accurate description of the posse comitatus clause or its exceptions, leaving readers to wonder why the federal ability to intervene with military force in states and territories is simultaneously imposing and ineffectual. Thirty-odd years later, in 1925, a monograph from Fort Leavenworth, Military Aid to the Civil Power, referred back to the army’s original interpretation of the posse comitatus restrictions to discover “the occasions when Congress has expressly authorized the use of the federal military forces.” However, Cassius Dowell, the JAG officer who wrote the report, was less successful in detailing the statutory exceptions to posse comitatus. Although Dowell devoted most of the report to explaining those exceptions relating to insurrection (Revised Statutes 5297, 5298, and 5300), he excluded Revised Statute 5299, an oversight with far-reaching implications.25
An important exception to scholars’ inability to discern the continued viability of posse comitatus interventions (particularly with regard to civil rights enforcement) can be found in two places: a 1941 report on presidential power during civil disturbances issued by the Brookings Institute and Robert Coakley’s in-house overview of the military’s deployment in domestic disorders.26 Coakley points out that, far from being diminished, “the president’s powers to use both regulars and militias remained undisturbed … and by the law of 1861 and the Ku Klux Klan Act they had in fact been substantially strengthened during the Civil War and Reconstruction Era” even after the posse comitatus clause entered federal law. Coakley then identifies the salience of civil rights provisions to the statutory exception to the ban on the army’s service as a posse comitatus, but he deems this fact of little account because “Reconstruction had really come to an end anyway with Hayes’ withdrawal of the troops in 1877.” Hence, he walks up to the precipice of understanding what posse comitatus might mean for the enforcement of civil rights in the South, but, since he clings to an outmoded chronological definition of Reconstruction, he fails to take the final step.27
Only the 1941 study by the Brookings Institute fully discerns the expansive possibilities of federal intervention after the posse comitatus restrictions entered federal law in 1878. The evident wonderment with which its author, Bennett Rich, reached this conclusion is in itself compelling evidence of a path not taken. After moving through a synopsis of the federal statutes relating to insurrection, Rich noted the existence of a federal law “that has received singularly little attention.” At this point, he then inserted the complete text of Revised Statute 5299, the same one left out of the Leavenworth analysis. While noting that “writers dealing with the subject have done little more than recognize the existence of this statute” (pointing to 1940 research on presidential power by a noted constitutional law scholar), Rich correctly perceived its potential reach: “Into the hands of the president is placed the power of determining whether, by insurrection, domestic violence, unlawful combinations, or conspiracies, any portion or class of the people of a state is being deprived of the ‘rights privileges, or immunities, or protection, named in the Constitution and secured by the laws’. … Under such circumstances the president is authorized to use the military forces of the United States to correct the evil.” Although he observed that “no president has based his action in handling a disturbance exclusively on R.S. 5299,” and regarded it as unlikely that any large-scale disorder that might activate the act would not also allow for federal intervention under other statutes, Rich ended his discussion of the issue by concluding that “R.S. 5299 is an additional weapon in the president’s hands to guard against the dangers of widespread and unchecked oppression of minority groups.”28
This 1941 study plays the role of Cassandra in analyses of posse comitatus, as it alone among those few studies grappling with the “expressly authorized” exemptions to posse comitatus carved out by Congress has gleaned a vital point. Through Section 3 of the 3rd Enforcement Act (1871), Congress not only authorized but insisted that the president use military force “for the suppression of such insurrection, domestic violence, or combinations” that served to “deprive any portion or class of the people … of any of the rights, privileges, and immunities, or protection, named in the Constitution and secured by this act” whenever state and local officials “shall either be unable to protect, or shall, from any cause, fail in or refuse protection of the people in such rights.” Be it through acts of commission or omission (the latter being the “state neglect” theory of civil rights enforcement, articulated by the Supreme Court in the 1870s and 1880s, that Pamela Brandwein has cogently resurrected from historical oblivion), the failure of nonfederal officials to secure mandated rights for all would “be deemed a denial by such State of the equal protection of the laws to which they are entitled.”29 This section of the 3rd Enforcement Act survived every legal assault upon Reconstruction launched in the 1870s and beyond, ended up in the Revised Statutes of 1874 and 1878 as Revised Statute 5299, and became part of the modern United States Code in the 1920s, where it lay dormant until the Department of Justice used it as the primary legal justification for federal intervention throughout the civil rights movement, starting with the 1957 crisis over school segregation involving the Little Rock Nine. In other words, nothing changed in federal law between 1871 and 1957 to permit federal intervention on behalf of African American civil rights; what changed was the political calculus surrounding that intervention.
The best place to begin to demonstrate this point is the statutory language of the Army Appropriations Act as it relates to posse comitatus. Many scholars who write on the subject have not actually examined the language of Section 15 or tracked down the contemporary discussion concerning it; instead, they have unwittingly repeated a slanted Democratic Party interpretation of Section 15 that was codified in the historical profession by the Dunning School of the early twentieth century. (A similar development applies to our understanding of the key Supreme Court decisions on civil rights from Slaughter House on, as Pamela Brandwein has meticulously shown.)30 Adopting the Democratic Party perspective, which insisted that all future use of the military as domestic law enforcement was illegal, has led scholars to miss the vital center of Section 15, which is captured in the modifying clause “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.” This clause immediately carved out a series of statutory exceptions to the seemingly blanket prohibition on the use of the army as domestic law enforcement. Indeed, the existence of this clause is the reason Republicans in the Senate finally acceded to revising the posse comitatus policy—it was the cost they extracted for agreeing to the restrictions in the first place. While not depicted as such in the literature (apart from a brief reference in Ari Hoogenboom’s history of the Hayes administration), the denouement of the posse comitatus debate could even be read as a Republican victory, since the Republicans prevented Democrats from “crippl[ing] the Reconstruction amendments,” given the number and reach of these existing exemptions now codified in federal law.31
Precisely which exemptions existed at the time the 1878 Army Appropriations Act entered into federal law? The general-in-chief of the army, William Tecumseh Sherman, helpfully delineated these in General Orders No. 49 and 71, issued after the new posse comitatus policy had become federal law.32 Eighteen statutes from the newly Revised Statutes of the United States represented preexisting exemptions from Congress’s action on posse comitatus. Some of these statutes referred to extremely specific circumstances: discoverers of “guano islands,” for example, were assured that the president could “employ the land and naval forces of the United States” to protect their domains, a law that remains in effect today.33 Other exemptions related to broader topics—Indian Country, Neutrality Act provisions, and extradition procedures, for example. Not surprisingly, given the legal edifice constructed by the Republican Party during Congressional Reconstruction, a few sections dealt with civil rights. But the aforementioned Section 3 of the 3rd Enforcement Act was not listed among them. Instead, as befitting its placement in the Revised Statutes, Section 3 was listed as a statutory exception stemming from Title LXIX: Insurrection.34
The migration of an important component of a bill enacted to “secure the rights guaranteed by section 1” of the Fourteenth Amendment into a portion of the Revised Statutes otherwise devoted to a series of Insurrection Acts (passed in the early republic and updated during the early days of the Civil War) is explicable, but not necessarily rational.35 When Congress authorized the creation of the Revised Statutes in the early 1870s, it seems clear that it did not intend that those persons undertaking the work would do anything more than reorganize the vast body of federal law. Yet, in practice, the commissioners in charge of the project removed sections of laws, compressed them, or altered their wording, actions that had an impact on at least one Supreme Court decision on civil rights.36 This was, perhaps, an inevitable by-product of a rushed process. It may be that those creating the Revised Statutes placed Section 3 of the 3rd Enforcement Act among the Insurrection statutes, because the section referenced “insurrection” in its first sentence (“Whenever insurrection, domestic violence, unlawful combinations, or conspiracies in any State so obstructs or hinders the execution of the laws thereof, and of the United States …”); however, the language of the bill listed “insurrection” as only one of many possible forms of violence. Whatever the reasoning behind the move, placing Section 3 into the Insurrection statutes (where it became Revised Statute 5299) may have shielded it from the Democratic Party’s counterattack on Reconstruction.
Whether or not this proved to be the case, Section 5299 not only survived the nineteenth century unscathed but came to serve as perhaps the most far-reaching exception to the ban on the use of the army as a posse comitatus. The significance of this development has not been fully appreciated. In short, regardless of the congressional restrictions placed on the army’s powers to function as a posse comitatus in 1878, the United States Army, at the direction of the president, retained the statutory authority to intervene in civil society to prevent civil rights violations. This power did not stem from a tortured construction of vague statutory language, nor was it esoteric to contemporary observers, as events in the fall of 1878 demonstrated.
In late October 1878, the New York Times published a remarkable editorial that boldly spelled out the contours of the federal prerogative after the canonical end of Reconstruction. What prompted the article was “the bold and systematic manner in which a certain class of citizens of the United States are deprived of their vested rights in some of the Southern states”—in other words, the regular rounds of violence, coercion, and intimidation that preceded an important national election.37 Rather than reacting “with scarcely a shrug, [abandoning] the freedpeople of the South to their fate,” as has been asserted about the North’s reaction to the Compromise of 1877, the Times editorial insisted that Reconstruction was far from over.38 Significantly, it recognized that any discussion of federal countermeasures had to grapple with posse comitatus:
There can be no doubt that the posse comitatus clause of the Army Appropriations act, passed at the last session of Congress, has emboldened the Southern Democrats in their present unlawful crusade against the Republicans of that section, the prevailing idea being that the clause effectively prohibits the National Government from using its authority to interfere with them, unless upon the call of the Governors of the respective States for federal assistance. … The purpose of the Democrats was to prevent the Army from being used to protect citizens from just such persecution as is now prevailing in South Carolina. The intimidation of unoffending colored men in the South is the effect of that clause, and it was intended to have that effect.
However, the Times editorial maintained, the Democrats, had failed to accomplish their intended ends, because any construction of posse comitatus holding that the military could no longer be used in such a fashion misread federal law. “A careful examination of the Revised Statutes,” the editorial concluded, “justifies the opinion that the posse comitatus clause does not prevent the President from using the military forces of the United States to prevent the outrages as are now being perpetuated in South Carolina through the connivance, if not with the sanction, of the State authorities.” This is because, as written, Section 15 of the Army Appropriations Act “expressly provided that the Army may be employed” when authorized to do so by the Constitution or prior act of Congress. Chief among these existing laws was Revised Statute 5298, an insurrection statute whose origins lay in the early republic. “But, if it be contended that the section above … refers only to active insurrection against the United States,” the Times continued, then supporters of federal intervention could find relief elsewhere: “it will not be denied that the act of April 20, 1871 (see Revised Statutes, section 5,299) gives the President ample authority to act in such cases as are now presented by daily occurrences in South Carolina.” At this point, the Times then quoted the whole of Revised Statute 5299, italicizing the phrase “it shall be lawful for the President of the United States and it shall be his duty” to use military force to suppress civil rights violations. Far from throwing up one’s hands in despair at the government’s inability to change this sad state of the affairs in the South, the Times determined that an aggressive response to Southern outrages was not only warranted, but completely lawful.39
Editorials like these must have sent shivers down the spines of Democrats eager to consolidate their emerging, but vigorously contested, control of the South. As the Times put it, “Here is a law which fits the case of South Carolina as nicely as though specially made for it. Indeed if Congress was now in session and disposed to redress the wrongs imposed on unoffending citizens by the Democracy of that State, no more positive language could be employed and no more effective statute framed.” Even if chastened Republican leaders avoided using intervention wantonly, as Charles Calhoun has argued, “they still embraced the threat of intervention by a Republican administration as a kind of latent power that could force southerners into moderately good behavior.”40 While this intervention might occur anywhere in the United States, everyone knew that the violent opposition of white Southerners to the policies of Congressional Reconstruction had prompted Congress to act in the first place, and both parties realized that the prospect of federal intervention into the affairs of the South remained a live possibility. Republicans, in fact, to use the words of James Hogue, “threatened the South with the specter of another military intervention” through the early 1890s. This represented an existential threat to the Democratic Party, which relied upon white Southerners to remain competitive in national elections.41
Aware that Republicans still contemplated federal intervention to secure the fruits of Reconstruction, Democrats responded with force in the South and with parliamentary maneuvers in Washington. While practically all of the scholarly literature on posse comitatus views the 1878 act as a watershed event, Democrats living in the shadow of that act regularly tried to undo their accomplishment by revising the posse comitatus language they had approved in the hope of ending the use of the military as a posse comitatus once and for all. Notably, their quest to eliminate the prospect of military intervention on behalf of civil rights played out after the restrictions on posse comitatus had, according to most of today’s scholars, permanently ended the military’s role in enforcing domestic law. For example, a year after the posse comitatus restrictions became law, Democrats launched a renewed effort to limit the ability of the military to preserve peace at the polls during federal elections; in this quest, they used both riders and an actual bill, only to see both vetoed.42 Concern over potential federal intervention also explains the party’s dogged attempts to repeal the Enforcement Acts, a battle in which they failed to make headway until 1894, nearly a generation after the Compromise of 1877. If the Supreme Court decisions of the 1870s and 1880s had fatally eviscerated federal attempts to protect the civil rights of African Americans, and if the posse comitatus restrictions had eliminated the ability of the military to intervene in Southern affairs, why did the Democratic Party spend so much time and energy trying to repeal acts of Congress theoretically invalidated by the Supreme Court and to change the party’s own posse comitatus language?43
The basic implication of all this is, hopefully, quite clear: the same legal framework that permitted federal intervention during the civil rights movement of the mid-twentieth century existed during and after Reconstruction. Instead of being proscribed, federal intervention in the South remained possible. In the end, it suffered a fate akin to that experienced by agents of the Freedmen’s Bureau, whose labors faltered, as Robert Kaczorowski concludes, not because of “the insufficiency of national civil rights law,” but because of “an insufficiency of political power and failure of will” by national leaders.44 The cadre of eminent law school professors who chided the Kennedy administration for claiming that it lacked the authority to intervene during Freedom Summer could have been speaking about any presidential administration from Grant on when they pointedly concluded, “it is not lack of Presidential power to act but the absence of a conviction that action is now called for that explains nonaction.” Or, as the New York Times pointedly wondered in 1878: “The President is not only clothed with ample authority to protect the people of South Carolina in all their lawful rights, but it is made his duty, under his oath of office, to adopt such measures as he may deem necessary to do so. Will he do it?”45
Of course, even had President Hayes—or any of his successors—decided on this course of action, one cannot automatically assume that the army would have been zealous or effective in its duties. As several scholars have pointed out, the post–Civil War United States Army suffered from a host of basic deficiencies, ranging from small budgets and lackadaisical training regimens to a confused command structure and a paucity of strategic thinking.46 Moreover, as Joseph Dawson shows in his study of the army’s experience in reconstructing Louisiana, the political leanings of commanders opposed to Reconstruction could and did hamstring federal attempts to protect civil and political rights in the South, as when Henry Halleck, commander of the Department of the South, inserted an extra layer of bureaucracy into the posse comitatus process, thereby weakening it.47 Despite these factors, however, reasons also exist to reach a more sanguine conclusion.
If one approaches the question of military intervention into civil society by thinking about the broader history of war and society in the nineteenth century, one will discover reasons for optimism. While the army frequently intervened in civil society after the Civil War thanks to its standing as the sole federal agency with a national reach, such actions unfolded without serious opposition, even if they were not exactly popular. While low-grade harassment, including lawsuits filed against commanders, did take place, not even the strenuous challenges of pacifying the South during Reconstruction, maintaining the boundaries of Indian reservations from incursions by white squatters in the trans-Mississippi West, and quelling violence during the general strike of 1877 led to violence between civilians and federal troops.48 As Coakley’s comprehensive account of the army’s activities during Reconstruction concludes, “A striking feature of this whole unusual experience … was the success achieved by small contingents of troops in controlling violence where far larger numbers of rioters were involved.”49 More than one historian has argued that the absence of violence stemmed from not only the superior discipline of regulars but also the moral authority the army possessed among Northern civilians—many veterans themselves—as the formal representative of the national government.50 In the South, the trend remained the same, but the calculus differed. Despite the repugnance with which they viewed Reconstruction, the diverse forces opposing it generally avoided conflict with federal soldiers because they feared inciting a more aggressive federal response. For example, even as Reconstruction broke down on the northern fringes of Louisiana in 1874, a region where local authorities had gone to the extreme of seizing a young lieutenant and trying him on trumped-up charges in a state court, a colonel of infantry sent to investigate the situation there emphasized that local whites had “not the slightest disposition to oppose the General Government.”51 As Southerners knew all too well, that had been tried and it had failed, killing in the process approximately 13 percent of white men of military age born in slave states.52
Intervention of the sort envisioned by both the 3rd Enforcement Act and the posse comitatus policy would not have been easy. There is good reason to suspect that, had such intervention been applied, its harsher aspects would have been softened by the strength of local elites, the difficulty of the mission, budgetary and manpower shortfalls, the lack of coordination across the federal bureaucracy, and occasional incompetence on the part of local commanders.53 Still, given the virulence with which the Democratic Party sought to weaken the federal army during this period—seeking to reduce its numbers, resisting compromise in Congress (with the end result that the army was not paid during several years in the 1870s), and trying to rein in its ability to intervene in civil society—it stands to reason that the army hit a vital Southern nerve. With the backing of both arms and federal law, it promised a modicum of protection for African Americans, and the threat of persecution for those opposed to Reconstruction. In the final analysis, as James Sefton states, even though “frequent changes in federal policy” during Reconstruction kept the “legal power and functions” of the army in constant flux, “one of the most noteworthy aspects of the Army’s activity in the South was its ability as an institution to adjust to these changes in policy.” With an institutional history filled with examples of its work in the service of controversial domestic initiatives, the U.S. Army might well have been the outside center of power required to fulfill the basic mission of Congressional Reconstruction by helping to bring to maturity an uneasy new world in the states of the former Confederacy.54
While various levels of government lurched toward a disorganized and chaotic response in the face of the epic devastation wrought by Hurricane Katrina in September 2005, many Americans wondered why the nation’s military had not rapidly deployed to the disaster zone. In response, administration officials hastened to assure reporters that, much as they wanted to, they could not have taken charge of the relief response without the approval of Louisiana’s governor. Since that approval was not forthcoming, they argued, they lacked the requisite authority to do so.55 William C. Banks, an authority on posse comitatus law, stated that these assertions were wrong, because any limitations upon the military’s ability to intervene in American society “are more cultural than legal.” According to the New York Times, Banks “said Mr. Bush’s authority extended to using the troops to stop looting—a law enforcement function—under provisions that enable him to put down any act of insurrection.56
Section 3 of the 3rd Enforcement Act, also known as Revised Statute 5299, otherwise known as Title 10, U.S. Code §333, had made an appearance again. It had, after all, never gone away, even if it had lain “long-dormant and little-discussed” for much of its history. White Southerners opposed to equal citizenship and equal rights for black Americans—the original targets of the statutory language—only discovered how serious the radical Republicans were in the 1950s and 1960s, when the Department of Justice in both the Eisenhower and Kennedy administrations invoked §333 as the primary legal justification for the federal response to civil rights violations and the forces of white supremacy in the South.57 Fittingly, the democratic promise of Reconstruction, so long deferred, would play out on new Southern battlefields—Little Rock, Montgomery, Oxford, Tuscaloosa, Birmingham, the Mississippi Delta, and Selma—using a very old rubric.
1.The articles found in a special issue of the Cleveland State Law Review constitute an important exception. See “Kent State 1970—Legal Background and Implications,” Cleveland State Law Review 22, no. 1 (Winter 1973).
2.“Kent State: Martyrdom That Shook the Country,” Time, May 18, 1970, 12–14; Andrew Huebner, The Warrior Image: Soldiers in American Culture from the Second World War to the Vietnam Era (Chapel Hill: Univ. of North Carolina Press, 2008), 215, 217, 239, 253. See also Tom Englehardt, The End of Victory Culture: Cold War America and the Disillusioning of a Generation, rev. and expanded ed. (Amherst: Univ. of Massachusetts Press, 2007).
3.Clayton D. Laurie, “Filling the Breach: Military Aid to the Civil Power in the Trans-Mississippi West,” Western Historical Quarterly 25, no. 2 (1994): 156.
4.Michael L. Tate, The Frontier Army in the Settlement of the West (Norman: Univ. of Oklahoma Press, 1999), 81
5.John Phillip Reid, In Defiance of the Law: The Standing-Army Controversy, The Two Constitutions, and the Coming of the American Revolution (Chapel Hill: Univ. of North Carolina Press, 1981), 88–91, Lord Bathurst qtd. on 94
6.Ibid., 6–7.
7.Caleb Cushing, qtd. in U.S. Library of Congress, Congressional Research Service (hereafter, CRS), The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, by Charles Doyle and Jennifer Elsea, R42659 (2012), 17.
8.Tate, Frontier Army, 81–83. The best overviews of the history of posse comitatus in the American context can be found in Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders, 1789–1878 (Washington, D.C.: U.S. Army Center of Military History, 1989); and U.S. Library of Congress, CRS, The Posse Comitatus Act and Related Matters: Use of the Military.
9.Tate, Frontier Army, 81–82; Laurie, “Filling the Breach,” 149; Posse Comitatus Act and Related Matters, 15–16; and Tate, Frontier Army, 81–82, 95–110. For an older, but still valuable, discussion of the difficult time the U.S. Army had enforcing the law in the face of unruly settlers, see Francis Paul Prucha, Broadax and Bayonet: The Role of the United States Army in the Development of the Old Northwest, 2nd ed. (Lincoln: Univ. of Nebraska Press, 1995). A more modern exposition of this theme can be found throughout Samuel Watson, Peacekeepers and Conquerors: The Army Officer Corps on the Frontier, 1821–1846 (Lawrence: Univ. Press of Kansas, 2013).
10.Leonard White, The Republican Era: A Study in Administrative History, 1869–1901 (New York: MacMillan, 1958), 35–39. Oddly enough, even though White recognized the Democratic thrust to curtail federal protection of civil and political rights in the South, he completely missed the debate over the army’s posse comitatus powers.
11.An Act Making Appropriations for the Support of the Army for the Fiscal Year Ending June Thirtieth, Eighteen Hundred and Seventy-Nine, and for Other Purposes, U.S. Statutes at Large 20 (1878): 152.
12.“Posse Comitatus,” The West Wing, first broadcast May 22, 2002, by NBC, directed by Alex Graves and written by Aaron Sorkin.
13.See, for example, David E. Sanger, “Bush Wants to Consider Broadening of Military’s Powers During Natural Disasters,” New York Times, Sept. 27, 2005, accessed Sept. 14, 2014, <http://www.nytimes.com/2005/09/27/national/nationalspecial/27military.html?_r=0>.
14. Mark Bradley, Bluecoats and Tar Heels: Soldiers and Civilians in Reconstruction North Carolina (Lexington: Univ. Press of Kentucky, 2009), 257; James Hogue, Uncivil War: Five New Orleans Street Battles and the Rise and Fall of Radical Reconstruction (Baton Rouge: Louisiana State Univ. Press, 2006), 181–83. As Hogue cogently puts it, Democrats “operated under the simple yet plausible assumption that if there was not much of a federal army, there could not be much intervention in southern affairs” (181).
15.Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper and Row, 1988), 686; Michael Fitzgerald, Splendid Failure: Postwar Reconstruction and the American South (Chicago, Ill.: Ivan R. Dee, 2006).
16.William A. Blair, “The Use of Military Force to Defend the Gains of Reconstruction,” Civil War History 51, no. 4 (2005): 388–402.
17.Michael Vorenberg, “Reconstruction as a Constitutional Crisis,” in Reconstructions: New Perspectives on the Postbellum United States, ed. Thomas J. Brown (New York: Oxford Univ. Press, 2006).
18.Joseph Dawson, Army Generals and Reconstruction: Louisiana, 1862–1877 (Baton Rouge: Louisiana State Univ. Press, 1982), 1. Two essays, Blair’s “The Use of Military Force,” and Andrew Lang’s “Republicanism, Race, and Reconstruction: The Ethos of Military Occupation in Civil War America,” Journal of the Civil War Era 4, no. 4 (Dec. 2014): 449–89, are rare exceptions, although the authors of both are pessimistic about a long-term military occupation of the South. Greg Downs’s important recent study, After Appomattox: Military Occupation and the Ends of War (Cambridge, Mass.: Harvard Univ. Press, 2015), places military occupation at the center of Reconstruction. While After Appomattox does not reach its full potential because of its emphasis on the already well-studied highest command levels of the U.S. Army and because it ends its discussion of military affairs in 1871, it hopefully will inspire more work on the military side of Reconstruction.
19.Charles W. Calhoun, Conceiving a New Republic: The Republican Party and the Southern Question, 1869–1900 (Lawrence: Univ. Press of Kansas, 2006), esp. 161–200. A condensed version of Calhoun’s thinking on sectional politics can be found in Charles W. Calhoun, From Bloody Shirt to Full Dinner Pail: The Transformation of Politics and Governance in the Gilded Age (New York: Hill and Wang, 2010).
20.Ari Hoogenboom, Rutherford B. Hayes: Warrior and President (Lawrence: Univ. Press of Kansas, 1995), 352, 376, 393–98.
21.Scholars of American political development have (surprisingly) failed to pay much attention to the army, but Stephen Skowronek provides a good summation of the political process by which posse comitatus restrictions emerged, along with a discussion of later attempts to constrain the army’s domestic operations and a consideration of the implication of these restrictions for urban disorder. See Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (New York: Cambridge Univ. Press, 1982), 102–3, 319n.51.
22.James Sefton, The United States Army and Reconstruction, 1865–1877 (Baton Rouge: Louisiana State Univ. Press, 1967); Jerry Cooper, The Army and Civil Disorder: Federal Intervention in Labor Disputes, 1877–1900 (Westport, Conn.: Greenwood Press, 1980), 83–84, 241–42.
23.Robert Wooster, The American Military Frontiers: The United States Army in the West, 1783–1900 (Albuquerque: Univ. of New Mexico Press, 2009), 243, 246. Two of Wooster’s other studies of the frontier army fail to mention posse comitatus at all. See Robert Wooster, The Military and United States Indian Policy, 1865–1903 (New Haven, Conn.: Yale Univ. Press, 1988) and Nelson A. Miles and the Twilight of the Frontier Army (Lincoln: Univ. of Nebraska Press, 1993).
24.Tate, Frontier Army in the Settlement of the West, 94, 109–10.
25.William Birkhimer, Military Government and Martial Law, 3rd ed., rev. (Kansas City, Mo.: Franklin Hudson Publishing Co., 1914), 490, 502–7; Cassius M. Dowell, Military Aid to the Civil Power (Ft. Leavenworth, Kans.: General Service Schools Press, 1925), 203–10.
26.Here it should be noted that the CRS report on posse comitatus cited in note 8 above explicitly notes the Enforcement Act exception, but as a reference work it is not considered here. See U.S. Library of Congress, CRS, The Posse Comitatus Act and Related Matters: Use of the Military, 15.
27.Coakley, The Role of Federal Military Forces, 344–45. The prevalent notion that federal forces immediately withdrew from the South after the Compromise of 1877 is erroneous; see Clarence C. Clenden, “President Hayes’ ‘Withdrawal’ of the Troops: An Enduring Myth,” The South Carolina Historical Magazine 70, no. 4 (1969): 240–50.
28.Bennett Milton Rich, The Presidents and Civil Disorder (Washington D.C.: Brookings Institution, 1941), 198–201.
29.An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and or Other Purposes, U.S. Statutes at Large 17 (1871): 14; Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (New York: Cambridge Univ. Press, 2011), 11–14.
30.Brandwein, Rethinking the Judicial Settlement, 222–23, 227–39. For a representative example of the Dunning School’s dismissive tone toward the federal effort to protect civil rights in the South and its confident assertion that the Enforcement Acts “are practically dead letters” with only “seven slightly important sections” surviving the counterattack on Reconstruction, see William Watson Davis, “The Federal Enforcement Acts,” in Studies in Southern History and Politics, Inscribed to William Archibald Dunning (New York: Columbia Univ. Press, 1914), 205–28.
31.Hoogenboom, Warrior and President, 352.
32.Sherman’s second order added new exemptions concerning quarantines and extradition while clarifying when officers might intervene without presidential authorization. See Adjutant General’s Office, General Orders No. 49 and 71, Index of General Orders, 1878 (Washington, D.C.: GPO, 1879). It should be noted that Sherman listed article 4, section 4 of the Constitution as an important exemption to the new posse comitatus policy; this section guarantees “to every State in this Union a republican form of government” and proclaims that the federal government “shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.” Many, though not all, Republicans identified this part of the Constitution as a founding principle that not only justified the expansion of suffrage and civil rights to African Americans but also validated federal intervention to secure this expansion. See Calhoun, Conceiving a New Republic, 15–16, 21, 28.
33.Revised Statutes of the United States, 2nd ed. (Washington, D.C.: GPO, 1878), 1081. For those seeking the guano islands provision in today’s United States Code, see Employment of Land and Naval Forces in Protection of Rights, §1418 in Chapter 8, Guano Islands, Title 48, United States Code.
34.Adjutant General’s Office, General Orders No. 49 and 71, Index of General Orders, 1878, 1029.
35. “Federal Intervention in the States,” 419–21. For a complete list of the statutes in the Insurrection title, see Revised Statutes, 1029–34.
36.“Federal Intervention in the States,” 456n.152; Brandwein, Rethinking the Judicial Settlement, 123–26.
37.“The President’s Power and Duty,” New York Times, Oct. 28, 1878.
38.William Wiececk, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford Univ. Press, 1998), 77; Brandwein, Rethinking the Judicial Settlement, 1–7.
39.“The President’s Power and Duty.”
40.“The President’s Power and Duty”; Calhoun, Conceiving a New Republic, 91. Federal intervention on behalf of African American voting rights in the South remained a reality in the late 1870s and early 1880s, as the Hayes, Garfield, and Arthur administrations deployed hundreds of federal marshals to the South during elections and dramatically expanded Enforcement Act prosecutions. See Brandwein, Rethinking the Judicial Settlement, 88, 129, 142–44. Federal action on behalf of civil rights occasionally occurred outside the South as well: in 1885 and 1886, the Cleveland administration used the legal framework described above to deploy the U.S. Army to the Pacific Northwest on behalf of Chinese victims of white mobs. It also brought federal civil rights charges against mob leaders, although it failed to secure convictions. See Kevin Adams, “‘The failure was signal’: The U.S. Army and the Anti-Chinese Riots in Seattle” (presentation, Western Historical Association annual meeting, Tucson, Ariz., Oct. 2013).
41.Hogue, Uncivil War, 181.
42.Calhoun, Conceiving a New Republic, 161–68; Hoogenboom, Warrior and President, 392–99.
43.Brandwein asks a related question from the perspective of the Republican Party: if the Supreme Court decisions of the 1870s and 1880s served as the coup de grace for Reconstruction, why did Republican agitation for African American rights continue until the early 1890s? See Brandwein, Rethinking the Judicial Settlement, 10. For a “state of the field” assessment of the fluid endpoint for Reconstruction, see “Historians’ Forum: Reconstruction,” Civil War History 61, no. 3 (Sept. 2015): 281–301.
44.Robert Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876, 2nd ed. (New York: Fordham Univ. Press, 2005), 21.
45.Qtd. in John H. Fenton, “29 Jurists, Disputing Kennedy, Say U.S. Can Act in Mississippi,” New York Times, July 1, 1964, accessed Dec. 2, 2014, <http://www.nytimes.com/1964/07/01/29-jurists-disputing-kennedy-say-us-can-act-in-mississippi.html>; “The President’s Power and Duty.”
46.Kevin Adams, Class and Race in the Frontier Army: Military Life in the West, 1870–1890 (Norman: Univ. of Oklahoma Press, 2009), 64–72. Good introductions to the strengths and faults of the post–Civil War army can be found in Wooster, The Military and United States Indian Policy, and his Nelson A. Miles and the Twilight of the Frontier Army; Paul Hutton, Phil Sheridan and His Army (Lincoln: Univ. of Nebraska Press, 1985); Jack D. Foner, The United States Soldier Between Two Wars: Army Life and Reforms, 1865–1898 (New York: Humanities Press, 1970); Robert Utley, Frontier Regulars: The United States Army and the Indian, 1866–1891 (New York: MacMillan, 1974); Edward Coffman, The Old Army: A Portrait of the American Army in Peacetime, 1784–1898 (New York: Oxford Univ. Press, 1986); and Tate, The Frontier Army in the Settlement of the West.
47.Dawson, Army Generals and Reconstruction, 1; Richard Zuczek, State of Rebellion: Reconstruction in South Carolina (Columbia: Univ. of South Carolina Press, 1996), 81. Dawson demonstrates that there was no monolithic army viewpoint on Reconstruction, as generals could enforce the dictates of Reconstruction policy, obstruct them openly, or vacillate toward them depending on their personal inclinations and capabilities.
48.Kevin Adams and Khal Schneider, “‘Washington is a Long Way Off’: The Round Valley War and the Limits of Federal Power on a California Indian Reservation,” Pacific Historical Review 80, no. 4 (Nov. 2011): 557–96.
49.Coakley, The Role of Federal Military Forces, 341, 348.
50.Cooper, Army and Civil Disorder, 60–61.
51.Dawson, Army Generals and Reconstruction, 190–95 (italics in original).
52.J. David Hacker, “A Census-Based Count of the Civil War Dead,” Civil War History 57, no. 4 (Dec. 2011): 342.
53.For illustrations of how the army’s capacity to enforce federal dictates could be eroded by local realities, see Adams and Schneider, “‘Washington is a Long Way Off’”; Jeffrey Ostler, The Plains Sioux and U.S. Colonialism (New York: Cambridge Univ. Press, 2004), esp. 40–84; and Elliott West, The Last Indian War: The Nez Perce Story (New York: Oxford Univ. Press, 2009).
54.Sefton, The United States Army and Reconstruction, 253.
55.Eric Lipton, Eric Schmitt, and Thom Shanker, “Political Issues Snarled Plans for Troop Aid,” New York Times, Sept. 9, 2005, accessed Sept. 17, 2014, <http://www.nytimes.com/2005/09/09/national/nationalspecial/09military.html?pagewanted=1>; Sanger, “Broadening of Military’s Powers.”
56.William C. Banks, qtd. in David E. Sanger, “Bush Wants to Consider Broadening of Military’s Powers During Natural Disasters,” New York Times, Sept. 27, 2005, accessed Sept. 17, 2014, <http://www.nytimes.com/2005/09/27/us/nationalspecial/bush-wants-to-consider-broadening-of-militarys-powers-during-natural-disasters.html>.
57.“Federal Intervention in the States for the Suppression of Domestic Violence: Constitutionality, Statutory Power, and Policy,” Duke Law Journal 15, no. 2 (1966): 415–19, quote on 415. The Kennedy administration, in particular, invoked §333 only after considerable foot-dragging and denial of the federal government’s ability to act. See the article cited above, as well as Fenton, “29 Jurists.”