The Powerful Insurrection Act of 1807

One of the most far-reaching and powerful pieces of legislation this country has ever passed is the Insurrection Act of 1807. Yet, it flies under the radar even though it gives the president of the United States broad powers to federalize the state militias at the time and, after it was created in 1903, the National Guard. The law lays out three conditions when the president can act.

  • When requested by a state’s legislature or governor if the legislature cannot be convened to put down an insurrection against that state.
  • Put down an insurrection in any state where it is impractical to enforce the law.
  • To address an insurrection, domestic violence, unlawful combination, or conspiracy in any state which results in the deprivation of constitutionally secured rights, and where the state is unable, fails, or refuses to protect such rights.

The Insurrection Act of 1807 replaced clauses in the Militia Act of 1792 which gave the president the power to call up the militia until 1794. Washington recalled the militia to help put down the Whiskey Rebellion in 1792 before his power expired. Between 1794 and when this act was passed, the president had little or no control of the state militias other than to ask Congress to cut off their funding.

When one realizes the Insurrection Act was written in 1807, we had been an independent country for just 24 years. The British still maintained forts on U.S. soil in the Northwest Territories and were instigating the Native Americans against the United States. They were impressing U.S. sailors into the Royal Navy and seizing our ships carrying goods to countries fighting England during the Napoleonic Wars. Our leaders felt the pressure of domestic as well as international threats. President Jefferson and Congress wanted to give the president the power to use military force if necessary to suppress a rebellion.

Little did the writers of the act know that in 1861, the United States would face an insurrection by 11 states and fight the bloodiest war in U.S. history. The Insurrection Act of 1807 gave President Lincoln the power to act to defend the union.

In the 217 years since it was passed, the Insurrection Act of 1807 has been modified twice. Once in 1861, the law was changed so the president could use it to order the militia or the U.S. military against a state to quell a rebellion. This is what happened when the Confederacy seceded, and the Civil War began.

In 1871, the Insurrection Act was modified to protect African Americans from attacks by the Ku Klux Klan and other organizations with similar motivations. This change was made to reinforce the Equal Protection Clause of the Fourteenth Amendment and was used by presidents during the 1870s – 1890s and then again by Presidents Eisenhower and Kennedy in the 1960s as the battle for civil rights took center stage.

President George H.W. Bush used the act twice. Once to help put an end to the looting and riots that occurred after Hurricane Hugo in 1989 down the LA riots in 1992. In 2006, President George considered invoking the act when the governor of Louisiana refused federal help after Hurricane Katrina.

There have been other instances throughout our history where the president had to threaten to use his power under the act to stop riots or other types of violence. The most recent threat came from President Trump in 2020 in the wake of the George Floyd riots.

Etching of anti-draft riots in NY in 1863 published by the NY Public Library and the Tilden Foundation.

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