The Bush administration tells us they might change the 1878 Posse Comitatus Act (PCA), which forbids the military from engaging in domestic law enforcement.  They don't want their hands tied if they have to defend the country against a terrorist attack, they explain, and the PCA might get in their way.  This is part of their ongoing policy of "putting everything on the table" that might conceivably help eradicate terrorism.  In the hunt for the world's evil-doers, they don't want to come up short on power.

It's almost touching the way PCA is being discussed in the media, as if we were actually a country under the rule of law.  Thus, we hear Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, say, "I don't fear looking at [PCA] to see whether . . . our military can be more helpful." [1]  Another defender of the Constitution, Sen. Joseph Biden, D-Del., tells us: "I think it is time to revisit it. . . . Let's say you had word that there was something going on in one of the tunnels in Amtrak . . . Right now, when you call in the military, the military would not be allowed to shoot to kill . . . ." [2]

Shooting to kill something going on in an Amtrak tunnel . . . or maybe a shopping mall . . . or your living room.  I'm sure if Biden had flopped as an American politician he would make the cut in any number of banana republics.

Freedom-loving people have always been distrustful of the military, and our colonists were no exception.  The troops that King George III garrisoned here in 1763 after he kicked the French out were a major grievance with Americans, and not just because they were taxed to pay for them.  The signers of the Declaration of Independence specifically attacked military independence from civilian control, a standing army in time of peace, and the quartering of troops in private homes.  The Washington University Law Quarterly in 1997 notes that fear "of a standing army helped to motivate the enactment of the Bill of Rights . . . ."  [3]

But the lessons learned slipped from memory.  Under the Fugitive Slave Act of 1850, federal marshals were empowered to use the military to help return a slave to his owner.  The marshals went beyond the letter of the law, frequently calling out the army to control hostilities between pro-and anti-slave forces.

During Reconstruction, the military became the enforcers of the North's political agenda for the South, a situation that fomented massive injustice, corruption, and crime, and led to the formation of the Ku Klux Klan.  The election of 1876, in which Republican Rutherford B. Hayes defeated Samuel J. Tilden by a single electoral vote, turned on Grant's imposition of the military.  Hayes won the disputed votes of South Carolina, Louisiana, and Florida after Grant had sent troops to those states for use at the polls, if needed.  "This misuse of the military in an election--the most central event to a democracy (sic)--led Congress to enact the PCA in 1878," the Law Quarterly notes.  [4]   

Several points leap out from the current PCA talk, besides the monotonous lie about the government acting in our self-interest.  First, in discussing the merits of changing the PCA, government is trying to give the impression they operate under written law.  Second, making this discussion public means it is not a critical issue to them.

The federal government is no longer restrained by law.  It can circumvent any legal barrier.  The only force keeping officials in line is fear of losing office.  Washington has instituted corruption, plunder, waste, and war on the American people--while claiming to be our public servants.  It is no longer a joke to say politicians are crooks.  With all the power they wield, they're a threat to human life.

Sure, we've got our Bill of Rights, much like an infant has its pacifier.  And just as a pacifier lacks any reality behind it, so too are the first Ten Amendments losing their meaning.  Politicians tell us the times call for a re-evaluation of our cherished sovereignties.  They assure us we need the Patriot Act, TIPS, national ID cards, unarmed pilots, disarmed citizens, a massive new federal bureaucracy, and federalized screeners frisking grandmothers to root out the terrorists among us.  And now, possibly, a revamping of PCA, just in case grandma is caught smuggling her atomic bomb and has to be neutralized.

The central government of the United States dominates every other political body.  If it violates the Constitution, who's going to punish it?  Not the states.  As checks on the power of federal encroachment, states rights died at Appomattox.  Certainly not the vast majority of American voters.  If polls are at all accurate, Americans believe our government needs to be even bigger.  

The PCA discussion is a sham, a sideshow intended to deceive the public into believing we have statesmen in office who respect the rule of law. Whether PCA gets changed is immaterial.  The commander-in-chief has the unconstitutional but uncontested power to issue executive orders, which makes him a one-man legislative body.  All he needs is the right crisis, and the PCA or any other law can mean whatever he dictates.

Since 1935 presidents, at their discretion, have published executive orders in the Federal Register.  Some decisions never reach the Register and are implemented informally as orders to subordinates, or "memoranda," thereby staying hidden from public view.  [5]  What is known for sure is that a president exercising this power is ruling by fiat, not law.

Our government has assured us we will be hit a second time.  For once they're right--we've already taken a second hit.  Bin Laden doesn't have to dive bomb our nuclear plants or poison our water.  He's done something infinitely more effective: he's sicced our government on us.  The Feds will finish the job he started, while most of the country cheers them on.

References

1. Will Military Enforce Domestic Law? Joseph D'Agostino

2. Ibid.

3.  The Posse Comitatus Act: A Principle in Need of Renewal, Washington University Law Quarterly, Summer, 1997, Vol. 75., No. 2

4.  Ibid.

5.  Execuitve Orders and National Emergencies: How presidents have come to "run the country" by usurping legislative power, Policy Analysis No. 358, October 28, 1999, Cato Institute, Washington, D.C.