Posse Comitatus: Making Sure Reconstruction Was Dead, Dead, Dead!

Posse Comitatus comes up in the news from time to time. It’s the Federal Act signed by President Rutherford B. Hayes in 1878 that limits the ability of the Federal Government to use Federal military power to enforce domestic laws. With a few exceptions, the military can’t use its power to enforce state and local law.

The Trump administration is frustrated by its inability to use the military to enforce parts of its immigration policy. In fact, almost every President since Hayes has felt constrained in some manner by Posse Comitatus and many have gone to great lengths to get around it. One might reasonably ask, why was there a need for such an act in the first place? The answer is that it was Part 2 of the deal Republicans and Democrats made to settle the highly contested Presidential election of 1876. Democrat Samuel Tilden of New York beat Rutherford B. Hayes in the Popular Vote and was leading in the Electoral College 184–165 with 20 contested Electoral votes uncounted. Republican Hayes would have had to have been awarded all twenty votes to eke out a one-point victory to win the Presidency.

The next part of the story requires you to set aside any current perceptions you may hold about the Republican and Democrat Parties. The Republicans very basis for existence was related to the elimination of slavery, can be credited for much of what happened to free the slaves and offer various protections ensuring slaves had a chance to adjust and in some cases thrive. There was no 40 acres and a mule but there were Federal Troops left in the South to protect the slaves from retaliation and ensure their civil rights. The freedmen began to vote and gained representation in elected offices with over 1,500 black men elected to office during Reconstruction (1863–1877). Florida had the most overall black elected officials, Mississipi was the only state to elect blacks to their State Senate.

Prior to the Civil War, Democrats had a northern and southern faction, divided over slavery. Northern Democrats thought the issue of the expansion of slavery into western states should be decided by each state. Southern Democrats felt the more the merrier, slavery uber alles. Although Democrats had won all but two Presidential elections between 1828 and 1856, their lack of cohesion allowed Republican Abraham Lincoln to win the 1860 Election. After the war, Democrats solidified their hold on the South, opposing civil and voting rights for African Americans.

When the Democrat Tilden apparently won the Presidential Election, it seemed had they would survive any challenge yet in the Compromise of 1877, they agreed to let the Republican Hayes be declared the victor. Tilden won the popular vote and likely the Electoral College. What could compel the Democrats to agree to let Hayes become President, given that Republicans also had firm control over Congress? Democrats would have absolutely no power in that scenario, what would be worth that trade? They got their greatest wish, The Compromise of 1877 called for Hayes to become President, and the removal of Federal Troops from the South and effectively ending Reconstruction. Posse Comitatus, signed into law in 1878, ensured Federal Troops would never return.

Democrats and Republicans sold out black people for their own needs. Democrats wanted the troops out and immediately ushered in Jim Crow and overt white supremacy. Democrats wanted the troops out and to fully reassert their control over the South which would last until the 1960s when President Lyndon Johnson passed the Voting Rights Act. “Dixiecrats” continued their flight to the Republican Party which gladly accepted them. Johnson opined Democrats would “lose the South for a generation.” He wildly underestimated the situation. Republicans pointed to use of Federal troops to end the Great Railroad Strike of 1877 as a reason to support the measure other than knowingly turning their backs on the black people their party once formed to protect. The Party of Lincoln had pushed aside their ideal to win a Presidency. President Hayes had been a staunch abolitionist that had defended refugee slaves in court. He also turned his back when the South returned to as close to slavery as it could. It was part of the deal.

Posse Comitatus has been updated a couple of times over the years. In 1956, it was Amended to include the Air Force. Was it a coincidence this happened just after the Supreme Court called for the forced integration of schools in Brown v. Board of Education in 1954? In 1915 when the Coast Guard was formed, it was specifically excluded from Posse Comitatus as was the National Guard previously. It was the Oklahoma National Guard that bombed and strafed black citizens of the Greenwood section of Tulsa in 1921 in the area known as “Black Wall Street.”

Note: I first became aware of Posse Comitatus after viewing an episode of “West Wing” involving the assassination of a terrorist that was also a diplomat. The show accurately named the act and when it was passed, making no mention of its origins. Its origin never comes up whenever it comes up on the news. It should.