US Insurrection Law

Recent widespread police brutality against those protesting police brutality vividly illustrates that self-preservation is the state’s predominant priority, with justice an anachronism.

Aaron Burr was a successful politician who managed the first public political presidential campaign in the United States. Burr was the 3rd vice president (1801-1805), under president Thomas Jefferson.

Burr killed political rival Alexander Hamilton in an illegal 1804 duel. Charges against Burr were dropped, but Hamilton’s death ended Burr’s political career.

Following his disgrace, Burr headed west: to the newly acquired Louisiana Territory and lands in the southwest owned by Mexico. Burr concocted a plot of rebellion to carve his own kingdom in the unsettled west.

Word of Burr’s bizarre plan reached Jefferson, who asked his secretary of state if the constitution granted the president authority to deploy the army to quell a rebellion. The reply was no.

Whence Jefferson incited the 1807 Insurrection Act, granting the president the power to use the armed forces in the instance of insurrection.

The Insurrection Act read as follows: “In all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the president of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.”

The Insurrection Act has been invoked dozens of times. President Abraham Lincoln used the 1807 Act as legal cover to wage the Civil War.

After the war, during the Reconstruction era in the South, the Insurrection Act was expanded to let the president (Ulysses Grant) take military action when state authorities fail to protect citizens constitutional rights. During the Reconstruction Era, southern states continued to repress blacks. That same authority was invoked by presidents Eisenhower, Kennedy, and Johnson during the civil rights era of the 1950s and 60s – again to stop southern states from suppressing blacks.

President George Bush Sr. invoked the Insurrection Act in 1992 in the wake of riots over police brutality in Los Angeles (the beating of Rodney King), at the request of California’s governor.

The botched governmental response to hurricane Katrina in 2005 (under George Bush Jr.) resulted in a further broadening of the Insurrection Act: allowing the use of military troops for domestic disturbances of any sort. The Insurrection Act is now codified as 10 USC §§ 251–255.

The Insurrection Act is a major exception to the Posse Comitatus Act of 1878 (now 18 USC § 1385). The aim of the Posse Comitatus Act is to limit the powers of the national government to use the military to enforce domestic policies. This act was passed as an amendment to an army appropriation bill following the end of Reconstruction era and was updated in 1956 and 1981. The title of the act comes from the legal concept of posse comitatus: the authority of law enforcement authorities to conscript any able-bodied person to assist in keeping the peace. The Posse Comitatus Act was passed after president Rutherford Hayes used federal troops to end a railroad strike.

The militarization of US police has effectively eviscerated the Posse Comitatus Act. Police are themselves a heavily armed force. While districts regularly hold special bond issues to finance public schools, the police never need beg public support for their gear.

The recent (futile) lockdowns to thwart covid-19 had scant basis in law. Nor, of course, does unchecked police brutality. The simple fact is the law is only as good as the will of authorities to enforce it.


Ishi Nobu, “Militarization” in The Pathos of Politics (2019).