Subjecting civilians to military power. (The Last Word).(creation of Office of Homeland Security raises concerns about Posse Comitatus Act of 1878 prohibitions)(Brief Article)

The pros and cons of employing federal troops to enforce the post-Civil War Reconstructionist policies in the South became an issue during the 1876 presidential election. There is evidence that rising citizen distaste for the military occupation contributed to Republican Rutherford B. Hayes' victory over Democrat Samuel Tilden.

Americans understood that the chief law enforcement officers in this nation were supposed to be county sheriffs. No other officials -- especially those representing the federal government -- were to have any authority to enforce law. But the conduct of federal troops operating in the Southern states during the Reconstruction period enraged many, and it drew the following strong rebuke from a member of the House of Representatives named Banning:

Our Army, degraded from its high position of defenders of the country from foreign and domestic foes, has been used as a police; has taken possession of polls and controlled elections; has been sent with fixed bayonets into the halls of State Legislatures in time of peace and under the pretense of threatened outbreak; has been placed under the control of subordinate State officials, and, under the instructions of the Attorney General, has been notified to obey the orders of deputy United States marshals, "general and special," appointed in swarms to do dirty work in a presidential campaign.

After President Hayes took office in March 1877, Congress looked hard at the complaints stemming from federal troop abuses and passed the Posse Comitatus Act of 1878. ("Posse comitatus" means power of the county.) Only a single paragraph in length, the Act made it unlawful "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...."

According to Charles Doyle of the Congressional Research Service of the Library of Congress, courts have held that the Act is violated when the military subjects "citizens to the exercise of military power which was regulatory, prescriptive, or compulsory in nature." But, Doyle noted in his 1995 review of the Act's history that "there has never been a prosecution" referencing it.

The Library of Congress researcher also reported that, in the period prior to our nation's War for Independence, British troops were in the colonies "not for protection against a marauding invader ... but as an independent military force" sent to police them. He claimed that several grievances were placed in the Declaration of ...