Domestic Overlords

The 250-year precedent for deploying the United States military to police the nation's citizenry.
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Soldiers on the Home Front: The Domestic Role of the American Military. (Photo: Harvard University Press)

Soldiers on the Home Front: The Domestic Role of the American Military. (Photo: Harvard University Press)

Soldiers on the Home Front: The Domestic Role of the American Military
William C. Banks and Stephen Dycus
Harvard University Press

The American Revolution did not end in 1783. In the recession that followed the expulsion of the British, Massachusetts saw America’s first brush with civil war. Farmers from the rural western stretches of the state, having not received payment—three years after the Treaty of Paris—for their bravery against the British, were bridling under heavy taxes levied by the urban elites. (Our tradition of forgetting veterans began at the very beginning.) Some of these farmers, unable to pay the new American taxes, were consigned to debtors’ prison, so their fellow yeomen, 1,500 strong, rode against the Springfield Armory in January 1787 with Daniel Shays at their head. The state militia managed to scatter Shays and his men at Springfield, but George Washington was troubled enough by the specter of insurrection that he wrote an alarmist letter to Henry Lee: “Influence is no government. Let us have one by which our lives, liberties and properties will be secured or let us know the worst at once.”

At the Philadelphia convention that May, the chaos of the Shays Rebellion was fresh in everyone’s minds as the delegates debated provisions for allowing the army a domestic role in American affairs. An army sufficient to repel the extortionate Brits had been necessary, and, subsequently, a coalition of national army and municipal or state militias became necessary for regulating the behavior of the yeomen.

The resulting paradoxes are still with us: The United States is a republic of laws, born of mob insurrection, forged in the smithy of anti-tax populism only to be overseen by domestic aristocrats, against whose police intrusions and taxes the plebs will occasionally bridle. Our founders, from the very first days of the republic, made all manner of provisions to protect the interests of the gentry from those whose rights they administrated. In fact, as William C. Banks and Stephen Dycus suggest in Soldiers on the Home Front: The Domestic Role of the American Military, the paradoxes that defined “liberty” for the founders have continued to bedevil our leaders’ uses and abuses of the nation’s armed forces—and the associated body of precedent in its courts. Hardly elementary, the volume nonetheless offers an engaging refresher for anyone who happens to have forgotten the various guarantees of the Calling Forth Act and the statutory additions and exceptions thereunto. Soldiers on the Home Front also exhumes minority opinions from dissenting Supreme Court justices—texts that are staples in law school but that any layperson too can appreciate, with due reward.

Banks and Dycus, professors of international affairs and public administration at the Syracuse University College of Law and of law at the Vermont Law School, respectively, recapitulate the British roots of early American thinking about the military and the police, with useful invocations of the 1689 Bill of Rights under William and Mary, the 1714 Riot Act meant to quell political violence born of religious schism in London, and especially Sir William Blackstone’s injunctions against mercenaries in his Commentaries on the Laws of England. These cautionary examples from across the Atlantic were common touchstones for the delegates in Philadelphia, whether, like Patrick Henry, they recoiled from the idea of centralization or whether, with James Madison and Alexander Hamilton, they believed federalism should also empower the national government to administer military action in the various states. One crucial check introduced at the 1787 convention was the stipulation that Congress must approve and renew federal military (and military police) appropriations every two years. No one present could have predicted a republic in which the Pentagon budget is renewed practically by automation, and has rarely dipped below a quarter of the federal budget since 1945.

The book is organized handily around the various roles the military has played in domestic life: “Soldiers as Peacekeepers, Soldiers as Cops,” for example, and, later, “Soldiers as Judges” (courts martial and military trials for civilians) and “Soldiers as Investigators” (covert surveillance of labor groups from industrialization onward, as well as of black and socialist citizen-activists).

Exercised properly, domestic intervention by the armed forces protects citizens from one another and advances the cause of liberty: When Congress passed the Ku Klux Act in 1871 it was a crucial move for protecting freed slaves, but it would also empower President Eisenhower to deploy the army’s 101st Airborne Division to oversee the integration of Little Rock Central High in 1957. The chapters on surveillance and internment are more cautionary, laying out the reasons—and legal mechanisms—that could precipitate new internments in the future. Our camps at the borders that detain Central American immigrants for indefinite periods do not house anywhere near the numbers of Japanese Americans interned under Franklin Roosevelt (close to 120,000), but their ranks reach into the thousands. Each day more flood in, are detained, and hang in limbo; each day, major American political leaders speak of them as if they were animals. You don’t need ideology anymore, or even war, to demonize an alien population.

Other historical examples are yet more damning. In 1968, the Kerner Commission’s response to rioting in Detroit, Philadelphia, Baltimore, Los Angeles, and elsewhere stated: “Our nation is moving toward two societies, one black, one white—separate and unequal. ... Discrimination and segregation have long permeated much of American life; they now threaten the future of every American.” The response from the subsequent president, Richard M. Nixon, was a guaranteed-income plan; the response from Nixon’s Federal Bureau of Investigation (and from the Pentagon) was to keep tapping the phones of black activists.

Implicit throughout this methodical yet lively volume is the running element of paradox in American governance; the paradox of freedom-versus-security is not unique to the American republic, but at the very least it elicits unique tension on these shores.

A paradox is dissonant symmetry—a crosscheck, in which two mutually dependent notions or values are likewise mutually opposed. The checks and balances ratified in Philadelphia nearly 250 years ago emerged from aggressive debate and fundamental divisions over the nature of good governance, producing a final document in which the only point federalists and statists could agree on was that they’d left things reasonably difficult for the other side. Thomas Jefferson didn’t decide until he became president that he was a federalist, and that the very modest domestic police force he originally championed would not be nearly as useful for sovereign expansion as a standing army.

As we continue our War on Terror, as we brace for major climatic events that might require domestic military intervention, as we suffer through the unchanging truth of the Kerner Commission’s “two societies,” Banks and Dycus offer a lucid interpretive history of our peculiar Constitution, our statutory law, the righteous eloquence of minority court opinions, and the many reasons—both good and bad—devised by our attorneys general to justify military policing at home.

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