WHY THE POSSE COMITATUS ACT OF 1878 SHOULD BE REPEALED

Over the past few years, civil libertarians have decried the diminishing freedom in our country in

the wake of 911. They point to the Bush Administration’s circumventing the constitution and Bill

of Rights with the prosecution of the GWOT (Global War on Terror). Constitutional scholars

were correct to question the ulterior motives of President Bush especially in the light of

controversial legislation such as the Patriot Act. For all practical purposes, the Patriot Act does

posse an imminent threat to the democratic institutions of government within the United States.

They note that the military continues to play an increasing role in the domestic affairs of the

United States in Drug Interdiction. Hence when word leaked out that the Bush Administration

was planning to utilize the Military in the pursuit of terror suspects in New Jersey, Civil Liberties

groups pointed out the importance of the Posse Comitatus Act of 1878 as an integral tool in

keeping soldiers out of domestic law enforcement dealings. Those fears and concerns are based

on unfounded myths if one would really knew that the original intent of the Passage of the Posse

Comitatus Act of 1878 was not to preserve civil liberties, but rather to take them away from

newly freed slaves and to subject them to a brutal form of Southern Apartheid called Jim Crow.

“In the wake of the Katrina debacle, Bush has called for revising the 1878 Posse Comitatus Act

to allow the US military more latitude to take action within the United States. Many progressives

are horrified at the idea, but my basic reaction is good riddance to one of the most racist laws in

American history.

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By Richard L. Dixon. Email address: rdixon57@gmail.com

Posse Comitatus was passed in the wake of the collapse of Reconstruction in order to prevent the

federal government from challenging southern states oppression of their black population. It was

a license to the Ku Klux Klan and related organizations to murder and lynch at will, knowing

that the federal government would be hamstrung in its ability to stop them.” (Nathan Newman,

October 01, 2005)

Therefore we can safely conclude that racism and not states rights were the underlying factor in

the Passage of the Posse Comitatus Act of 1878 by Congress.” But prohibiting use of the US

military as a principle, when state-controlled militias can be deployed at will, is just part of the

residual racist "states rights" ideology that we should happily see thrown to the curb.” (Nathan

Newman).

Throughout the era of reconstruction and up to its end with the Passage of the Posse Comitatus

Act of 1878, White Southerners clearly demonstrated through their actions such as the rising of

the KKK and the passage of Black Code Laws in their state legislatives that they did not want to

be willing participants of reconstruction and wanted to go back to business as usual in treating

blacks as beasts instead of human beings entitled to the same basic rights and freedoms as they

enjoyed. This was clearly evident under the Presidency of Andrew Johnson he himself a

Southerner. “By the close of 1865, Johnson had appointed scores of pardoned ex-Confederates to

preside over Southern state governments. Taking full advantage of Johnson’s altruistic agenda

newly formed pro-Confederate state administrations sprang up throughout the South. These

traditionalist governments acted quickly to pass new laws, known as “Black Codes,” severely
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By Richard L. Dixon. Email address: rdixon57@gmail.com

limiting the rights of blacks.” (Matt Matthews). Hence, the tendency for Vigilante violence

against unarmed African Americans and White staffers from the Freedman’s Bureau was almost

an everyday occurrence. Without the posting of Federal Troops at Polling Places, schools, and

other essential areas in the South, the violence would have been worst and could have sparked

another Civil War during that era.

Contrary to the rhetoric that is being espoused now about the danger of the military having an

increased role in domestic policing operations in this country, the Army had a rich tradition of

assisting Federal Marshals in the apprehending of criminals across the wide frontier. They were

called upon often. “Before 1878, it was common for the United States Army to enforce civilian

laws. In frontier territories, the army was often the only source of law enforcement,

supplemented by occasional U.S. Marshals. Over time, marshals and county sheriffs regularly

called upon the army to assist in enforcing the laws. In 1854, for example, the U.S. attorney

general wrote that the posse comitatus includes every male person above the age of 15, including

the military.” (Michael I. Spak and Donald F. Spak).

What changed the historical partnership between the Military and Law Enforcement in helping to

enforce the laws of the Republic and safeguard our country against both domestic and aggression

was the election of Rutherford B. Hayes as President in 1876. Many historians cite the end or

reconstruction with his election of 1876 and becoming President in 1877. In actuality, it was the

passage of The Posse Commitatus Act of 1878 that spelled the end of the reconstruction era. The

election of Rutherford B. Hayes was the agent of change that the Southerners were looking for to
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By Richard L. Dixon. Email address: rdixon57@gmail.com

end Federal Jurisdiction and control of their states. “In the election of 1876, the Democratic

candidate, Samuel J. Tilden, won a majority of the popular vote, but the Republican candidate,

Rutherford B. Hayes, ended up with a majority of one vote in the Electoral College. The election

was disputed and finally determined by a deal in which Tilden would concede the election if

Hayes agreed to end Reconstruction. Accordingly, Reconstruction ended in 1877 with the

inauguration of Hayes as the 19th president. Federal troops in the South were no longer used to

enforce the law, and the Southerners became masters in their own states for the first time since

the end of the Civil War.” (John R. Brinkerhoff, February 2002).

The Hayes & Tilden Compromise, the Removal of Federal Troops, and Posse Comitatus Act

effectively ended the first era of Civil Rights for the newly emancipated slaves and opened the

door to legalized apartheid such as Jim Crow. At the height of reconstruction there were 21

African Americans in Congress. By 1879 blacks in the Southern States ceased to hold office at

the local, state, or Federal level. There would not be any Congressional Black Representation

until 1929 with the election of Oscar De Priest from Chicago in 1928. African-Americans were

also lynched in Disproportionate numbers by the Ku Klux Klan (under the auspices of former

Confederate General Albert Pike) and vigilante mobs. This has proven to be an ugly chapter in

our history and proves the fatal error of Congress in passing such a flawed piece of legislation

such as the Posse Comitatus Act of 1878. There is no doubt that the continued presence of

Federal Troops would have curtailed the violence against newly Freed Blacks and white who

were sympathetic to their cause and plight.

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By Richard L. Dixon. Email address: rdixon57@gmail.com

It is quite evident that the Posse Comitatus Act must be repealed for several reasons. Among

these, the expanding violence perpetuated by the Mexican Cartel against U.S. Citizens at

Border Towns, the continued threat of Al Qaeda, the rise of domestic terrorist groups such as

Militias and White Supremacist Organizations, responding to Natural Disasters such as

Katrina, and the increased activity of environmental extremes groups such as the Earth

Liberation Front. The Posse Comitatus Act fundamentally handicaps the military in assisting

an already overburdened domestic policing agency in responding to these threats to U.S

Security and American Society. It is important that a continued emphasis be placed on the rise

of both rightwing extremist groups and eco-terrorist in the mode of ELF. The country will

continue to see a rise in these groups due to the worsening economic condition as well as the

election of the first African American President to sit in the White House Barack Obama. “An

intelligence assessment released to law enforcement last week claims news of recession, the

election of an African American president, and rumors of new gun restrictions and the inability

of veterans to reintegrate create fertile ground for radicalizing and recruiting right-wing

extremists.” (Fox News, April 14, 2009).

Therefore the belief that the repealing of the Posse Comitatus Act 0f 1878 would result in the

usurping of democratic rule in this country by the military is unfounded. A greater threat to the

democratic stability of this country would come internally from the threat of violence by the

above mentioned Militia and eco-terrorist groups. Another danger lurking in the wings is the

ever-growing presence of private contractors such as Blackwater. It is quite possible that they

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By Richard L. Dixon. Email address: rdixon57@gmail.com

could form a Praetorian Guard faction that would operate outside the boundaries of U.S. Law

and could link up with Rightwing Militia and extremist group giving them a ready military arm

that could threaten the supremacy of our Arm Forces internally. “While the initial inquiries into

Blackwater have focused on the complex labyrinth of secretive subcontracts under which it

operates in Iraq, a thorough investigation into the company reveals a frightening picture of a

politically connected private army that has become the Bush Administration's Praetorian Guard.”

(Jeremy Scahill, March 15, 2007).

It is of extreme importance that the legislative strait-jacket of the Posse Comitatus Act of 1878 be

taken off so that our military will have more latitude to deal with these ever increasing emerging

threats and to protect the freedoms that we in the United States so cherish. Thus Congress must

pass a less encumbersome act which mandates a 21st century role for the military in the sphere of

domestic affairs while at the same time guarantying our Civil Liberties. “Even so, today’s society

is reticent about using military forces domestically in times of crisis unless conditions are

severe. Therein lays a conundrum. While Americans do have an aversion to government control

they do have a certain level of expectation from the government to protect them and their property

from harm. In order to find a better balance between civil rights and government protection

the PCA must be replaced with a more comprehensive Interagency Coordination Act.” (Rey A.

Zuniga, April 2009).

We as a nation cannot continue to hold unto a piece of legislation such as the Posse Comitatus Act

that is masquerading around as a worthy example of the protection of our civil liberties considering
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By Richard L. Dixon. Email address: rdixon57@gmail.com

its soiled reputation as a tool of racial oppression. It must be repealed especially to honor those

who became its unwilling victim at the hands of Southern extremists.

End Notes

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granted for citation in academic documents as long as credit is given to the author
as the original source.

By Richard L. Dixon. Email address: rdixon57@gmail.com

 1. Nathan Newman, “Against the Posse Comitatus Act,” Nathan Newman.org Blog, entry
posted October 01, 2005, http://www.nathannewman.org/log/archives/003432.shtml
(accessed August 15, 2009).
2. Ibid.
3. Matt Matthews, “The Posse Comitatus Act and the United States Army: A Historical
Perspective,” Global War on Terrorism Occasional Paper 14, (Fort Leavenworth, KS:
Combat Studies Institute Press), 23.

4. Michael I. Spak and Donald F. Spak, “Posse Comitatus Act (1878),” Enotes,
http://www.enotes.com/major-acts-congress/posse-comitatus-act (accessed August 15,
2009).
5. John R. Brinkerhoff, “The Posse Comitatus Act and Homeland Security,” February 2002,
http://www.homelandsecurity.org/journal/Articles/brinkerhoffpossecomitatus.htm
(accessed August 15, 2009).

6. Fox News, “Homeland Security Warns of Rise in Right-Wing Extremism.” April 14,
2009, http://www.foxnews.com/politics/first100days/2009/04/14/homeland-security-
warns-rise-right-wing-extremism/ (accessed August 15, 2009).

7. Jeremy Scahill, “Bush's Shadow Army,” The Nation, March 15, 2007,
http://www.thenation.com/doc/20070402/scahill (Accessed August 15, 2009).

8. Rey A. Zuniga, “The Posse Comitatus Act: A Hindrance to National Security in Need of
Change” (Master Thesis: Air Command & Staff College, Air University, April 2009), 2.

This article is for the intended use of educational purposes only. Permission is
granted for citation in academic documents as long as credit is given to the author
as the original source.

By Richard L. Dixon. Email address: rdixon57@gmail.com