|
Matthew Carlton Hammond
excerpted from: Matthew Carlton Hammond, The Posse Comitatus Act: a Principle in Need of Renewal , 75 Washington
University Law Quarterly 953-984 (Summer 1997)
The hotly contested presidential election of 1876 directly led to the passage of the
PCA,(1) but the principle behind
the Act--excluding the military from the civilian sphere--is as old as the United State(2) Since the writing of the
Declaration of Independence, Americans have mistrusted standing armies and have seen them as instruments of
oppression and tyranny.(3) Over time, the military has increased its esteem among the populace, but it has always
been held separate from civilian government and limited to its focussed goal of military preparedness and national
securit(4)
This antimilitarism bent of the United States is evident in our foundation documents.(5) The Declaration of
Independence decries King George III's use of armies "to compleat works of death, desolation and tyranny . . .
totally unworthy . . . of a civilized nation(6) Specifically, the Signers of the Declaration of Independence attacked the
keeping of a standing army in time of peace,(7) the military's independence from the civil control(8) and the
quartering of troops among the population of the colonies. (9)
In response to these concerns, the Articles of Confederation limited the role of the militar(10) Specifically, they
restricted the raising of armies and the maintaining of naval vessels.(11) They also reserved the appointment of
officers, other than the rank of general, to the states, thus lessening the central government's control over the
militar(12) In addition to establishing a weak central government, the Articles of Confederation's reliance upon
militia for military power was inadequate to meet the needs of the nation.(13)
In the Constitution, the Founding Fathers mandated civilian control of the military through the government
structur(14) While allowing for a standing army and the maintenance of a navy,(15) the Constitution restricts military
appropriations to two year(16) designates the President as the Commander-in-Chief, thereby subordinating the
military to civilian authority;(17) and empowers Congress to regulate the armed force(18) Additionally, the Bill of
Rights proscribes the peacetime quartering of soldiers in private homes(19) and provides for the states to have a
well-regulated militia as a counterbalance to a national arm(20)
Fear of a standing army helped to motivate the enactment of the Bill of Rights beyond the specific amendments
relating to the military.(21) By guaranteeing individual rights in the First Amendme(22) and freedom from
unreasonable search and seizure in the Fourth Amendment,(23) it was that the abuses of the British army could be
prevented in the new republic(24) The Founding Fathers recognized that the military's authoritarian nature, while
effective in defending democracy, remains antithetical to the basic tenets of democracy.(25) According to this
reasoning, "[s]kepticism and criticism" of the military are "absolute requisites of freedom" that are missing from
every unfree natio(26)
Fear of the military seemed to have been forgotten until the mid-1800s, when the events leading up to enactment
of the PCA began prior to the Civil War. The Fugitive Slave Act of 1850 allowed federal marshals to call on the
posse comitatus to aid in returning a slave to his owner.(27) In the context of the Fugitive Slave Act, Attorney
General Caleb Cushing issued an opinion defining the posse comitatus to include the military even if entire units
had to be called upon while remaining under the direction of their own officer(28) This use of the military by federal
marshals became common; in Kansas, for example, federal troops were used to quell disorder between pro- and
anti-slavery factions.(29)
The post-Civil War military presence in the South continued to foment a distaste for military involvement in the
civilian spher(30) The military presence was necessary to support the Reconstruction governments installed in the
South,(31) but the situation came to a head during the 1876 presidential election, which was determined by only one
electoral vote(32) In the election, Rutherford B. Hayes won with the disputed electoral votes of South Carolina,
Louisiana, and Florida.(33) In those states, President Ulysses S. Grant had sent troops as a posse comitatus for
federal marshals to use at the polls, if necessar(34) This misuse of the military in an election--the most central event
to a democracy--led Congress to enact the PCA in 1878.(35)
Read the Following Links:
Up
Passage of the PCA: Reaffirmation of a Long-Standing American Tradition
The Scope of the PCA
Exceptions to the PCA Endanger the Military and the United States
Renewal of the Policy Embodied by the PCA
1. . See infra note 49-51 and accompanying text.
2. . See supra note 13 and infra notes 20-43 and accompanying text. "[M] emories of the
arrogance of the British Army" fueled the early controversy over the military. M.E.
Bowman, The Military Role in Meeting the Threat of Domestic Terrorism, 39 Naval L.
Rev. 209, 211 (1990
3. . The Declaration of Independence eloquently expressed this mistrust:
He has erected a multitude of New Offices, and sent hither swarms of Officers, to harass our
People, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our
Legislature.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and
unacknowledged by our laws; giving his Assent to their acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from Punishment for any Murders which they should
commit on the Inhabitants of these States:
He has abdicated Government here, by declaring us out of his Protection and waging War
against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our
people.
He is at this time transporting large armies of foreign mercenaries to compleat the works of
death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely
paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their
Country, to become the executioners of their friends and Brethren, or to fall themselves by their
Hands.
The Declaration of Independence paras. 12-19 (U.S. 1776).
4. . See PCA Hearing, supra note 13, at 15 (statement of William Howard Taft IV, Gen.
Counsel, U.S. Dep't of Defense); Andrew J. Goodpaster & Samuel P. Huntington,
Civil-Military Relations 9-11 (1977); cf. Letter from Larry L. Simms, Deputy Asst. Att'y
Gen., Office of Legal Counsel, U.S. Dep't of Justice, to Rep. L.A. "Skip" Befalis 4-5
(Aug. 6, 1979) (noting that because "the primary mission of the Navy is to be the
instrument of seapower in the national defense," it should not become involved in
interdiction efforts despite the lack of a PCA bar to such involvement), reprinted in PCA
Hearing, supra note 13, at 523, 526-2
5. . See generally U.S. Const.; Articles of Confederation, 1 Stat. 4 (U.S. 1778) (superseded
by U.S. Const.); The Declaration of Independence (U.S. 1776).
6. . The Declaration of Independence para. 15 (U.S. 1776
7. . Id. para. 13 ("He has kept among us, in times of peace, Standing Armies without the
Consent of our Legislature.").
8. . Id. para. 14 ("He has affected to render the Military independent of and superior to the
Civil Power."
9. . Id. para. 15 ("For quartering large bodies of armed troops among us: For protecting
them, by mock Trial, from Punishment for any Murders which they sould commit ....").
10. . Articles of Confederation arts. 6, §§ 4,5, 1 Stat. 4, 4-5 (U.S. 1778); id. art. 7, 1 Stat. at
11. . Id. art. 6, §§ 4-5, 1 Stat. at 4-5.
No vessels of war shall be kept up in time of peace by any State, except such number only, as
shall be deemed necessary by the United States in Congress assembled, for the defence of such
State, or its trade; nor shall any body of forces be kept up by any State, in time of peace, except
such number only, as in the judgment of the United States, in Congress assembled, shall be
deemed requisite to garrison the forts necessary for the defence of such State; but every State
shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered,
and shall provide and constantly have ready for use, in public stores, a due number of field pieces
and tents, and a proper quantity of arms, ammunition and camp equipage.
No State shall engage in any war without the consent of the United States in Congress
assembled, unless such State be actually invaded by enemies ...: nor shall any State grant
commissions to any ships or vessels of war, nor letters of marque or reprisal, ... unless such State
be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept
so long as the danger shall continue, or until the United States in Congress assembled shall
determine otherwise.
Id.
12. . Id. art. 7, 1 Stat. at 5.
When land-forces are raised by any State for the common defence, all officers of or under the
rank of colonel, shall be appointed by the Legislature of each State respectively by whom such
forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled
up by the State which first made the appointment.
I
13. . John A. Hardaway, Colonial and Revolutionary War Origins of American Military
Policy, Mil. Rev., Mar. 1976, at 77, 81.
14. . J. Bryan Echols, Open Houses Revisited: An Alternative Approach, 129 Mil. L. Rev.
185, 200 (1990
15. . U.S. Const. art. 1, § 8, cls. 12-13.
16. . Id. art. 1, § 8, cl. 12 ("The Congress shall have Power ... To raise and support Armies,
but no Appropriation of Money to that Use shall be for a longer Term than two Years
...."). However, appropriations for the Navy are not similarly limited. See id. cl. 13 ("To
provide and maintain a Navy ...."). The failure to limit navy appropriations follows from
the failure to mention the navy as an evil in the Declaration of Independence. See supra
note 20. Indeed, navies were seen as instruments of the great powers and were not
thought to be a threat to civil supremac
17. . U.S. Const. art. 2, § 2 ("The President shall be Commander in Chief of the Army and
Navy of the United States, and of the Militia of the several States, when called into the
actual Service of the United States ....").
18. . Id. art. 1, § 8, cl. 14 ("To make Rules for the Government and Regulation of the land
and naval forces."). The Constitution preserves the right of states to appoint officers for
their militias, but limits the states' authority by requiring militia training to conform with
Congress's requirements. Id. cl. 16; cf. The Articles of Confederation art. 7 (U.S. 1778)
(as discussed supra notes 27-30 and accompanying text
19. . U.S. Const. amend. III ("No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a manner to be prescribed by
law."). For a discussion of the history and purpose of the Third Amendment, see William
Sutton Fields, The Third Amendment: Constitutional Protection from the Involuntary
Quartering of Soldiers, 124 Mil. L. Rev. 195 (1989).
20. . U.S. Const. amend. II ("A well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not be infringed."
21. . See Peter M. Sanchez, The "Drug War": The U.S. Military and National Security, 34
A.F. L. Rev. 109, 117 (1991) ("Despite [Alexander] Hamilton's assurances [in response to
public fears regarding a national army], the Constitution was only ratified after Federalists
agreed to incorporate the Bill of Rights." (quoting W. Peters, A More Perfect Union
231-37 (1987))).
22. . U.S. Const. amend.
23. . Id. amend. IV.
24. . See Sanchez, supra note 38, at 118 (mentioning the belief that the Bill of Rights "would
effectively preclude the new government from usurping the rights of citizens, whether by
military or other means"
25. . See The Federalist No. 41, at 258-60 (James Madison) (Clinton Rossiter ed., 1961); see
also Dunlap, supra note 4, at 388 ("[T]he military is the antithesis of democracy."
(footnote omitted)); Hardaway, supra note 30, at 80 (Colonial feeling was that a standing
army "was simply incompatible with a democratic system of government."). "The ideals of
liberty, democracy, equality, and peace have contrasted with the military's concern with
authority, hierarchy, obedience, force, and war." Goodpaster & Huntington, supra note
21, at 7. "It ill behooves a democracy to become over-fond of its soldiery," said one
Founding Father. DeWitt C. Smith, Jr., From Yesterday's Fears to Today's Realities,
Parameters, Fall 1977, at 90, 90.
The Founding Fathers' fear of a standing army is also evident in the constitutions of the thirteen
original states, which note that standing armies are "dangerous." See, e.g., N.H. Const. pt. 1, art.
25 ("Standing armies are dangerous to liberty, and ought not to be raised, or kept up, without
consent of the legislature."); Va. Const. art. 1, § 13 ("[S] tanding armies, in time of peace, should
be avoided as dangerous to liberty; and ... in all cases the military should be under strict
subordination to, and governed by, the civil power."); see also H.W.C. Furman, Restrictions
upon Use of the Army Imposed by the Posse Comitatus Act, 27 Mil. L. Rev. 85, 92 n.41 (1960).
26. . See Smith, supra note 42, at 9
27. . See Act of Sept. 18, 1850, ch. 60, 9 Stat. 462, 462-63. See supra note 11 for the
definition of posse comitatus.
28. . Extradition of Fugitives from Service, 6 Op. Att'y Gen. 466, 473 (1854
29. . Furman, supra note 42, at 93.
30. . See Lorence, supra note 11, at 16
31. . See id. The military support of these governments was described as a "rotten-borough
or carpet-bag system." G. Norman Lieber, U.S. War Dep't, Office of the Judge Advocate
Gen., Doc. No. 64, The Use of the Army in Aid of the Civil Power 10 (1898) (quoting
Rep. J.D.C. Atkins).
In the Reconstruction South a monumental task faced the military:
Unplanned and aimed not at eradicating states but at hurrying their return to the Union ..., [the
Military Reconstruction Laws] one way or another imposed on the Army the duties of initiating
and implementing state-making on the basis of biracial citizen participation. Protecting the
personnel of the federal courts and Freedman's Bureau, shielding blacks and whites who
collaborated in the new order of equality under state law from retaliations by indignant vigilante
neighbors, and monitoring the quality of daily marketplace justice in ten thousand villages--these
were tasks that West Point had not prepared Army officers to perform.
Harold M. Hyman, Ulysses Grant I, Emperor of America?: Some Civil-Military Continuities and
Strains of the Civil War and Reconstruction, in The United States Military Under the Constitution
of the United States, 1789-1989, at 175, 186 (Richard H. Kohn ed., 1991) [hereinafter U.S.
Military Under the Constitution].
The size of the standing army increased in post Civil War America. Emory Upton, The Military
Policy of the United States (1881) (unpublished manuscript) (see tables and charts), reprinted in
S. Doc. No. 379, 1st Sess. (1916). With its increased size and permanence, the army began
transforming itself into a professional army. See id. With a standing army of significant size, the
PCA became even more important as a limit on the role of the military in society and as a shield
from improper requests by civilian authorities. See PCA Hearing, supra note 13, at 38-39
(statement of Christopher H. Pyle, Professor, Mount Holyoke College).
32. . Furman, supra note 42, at 94; Lorence, supra note 11, at 173-7
33. . See Lorence, supra note 11, at 172-74.
34. . Furman, supra note 42, at 94-95, 94 & nn.56-57; Lorence, supra note 11, at 17
35. . Furman, supra note 42, at 94-96; see also Lieber, supra note 48, at 10-12;
Lorence,
supra note 11, at 174-79; cf. Federal Document Clearing House, Buyer Offers
Amendment to Anti-terrorism Legislation; Limits and Clarifies Role of Military, Gov't
Press Release, June 14, 1995, available in 1995 WL 14249788 (suggesting that the PCA
was also passed to prevent the use of troops to quell labor disputes).
Grant's improper actions finally pushed the PCA through after several prior defeats. The original
text of the PCA read as follows:
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 wilfully 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.
Army Appropriations Act, ch. 263, § 15, 20 Stat. 145, 152 (1878). Congress adopted the modern
text of the PCA, see supra note 12, in 1956. See An Act to Codify Title 10 and Title 32,
ch. 1041,
§ 18(a), 70A Stat. 1, 626 (1956) (codified as amended at 18 U.S.C. § 1385 (1994)). The modern
text was meant "to restate, without substantive change, the law replaced." Id. § 49(a), 70A Stat.
at 640.
In 1866, prior to the passage of the PCA, the Supreme Court cast doubt on the use of the
military to enforce the laws in place of civilian authorities, even in a time of stress. See Ex parte
Milligan, 71 U.S. (4 Wall.) 2 (1866). |
