Militias in America: False Reality and the US Constitution
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By Greg Feldman
University of Windsor
Editor, Today's Totalitarianism
Words only carry the meanings that speakers invest in them. If enough people insist that “up” means what we thought was “down”, then the inversed definition becomes reality in (ab)normal society. This prospect is no comic exercise, though, when the US Constitution is involved. Recent months have seen growing comfort with reinterpreting the US law to justify raising civilian militias. These militias would step in to ostensibly protect the Constitution, and so the country itself, with the argument that the federal government has been derelict in this duty. However, the real danger is that these militias – better understood as vigilantes – would impose an interpretation that is both indisputable (and thus anti-democratic) and arbitrary (and thus always subject to their own re-interpretation).
Stewart Rhodes, leader of the Oath Keepers, one of the country’s most effective right-wing vigilante groups, has stalwartly endorsed such an agenda. This agenda has been increasingly discussed in right wing circles, including among former President Trump and his top advisors, since spring 2020. The holder of a Yale law degree and now a convicted seditionist, Rhodes called on Trump to invoke the Insurrection Act of 1807 in the lead up to the notorious events of January 6th, 2021. While a guest on the right-wing pundit Alex Jones’s Infowars program on November 9th, 2020, he urged Trump to use the act “to suppress the deep state” and claimed that the Oath Keepers already had men “stationed outside D.C. as a nuclear option.”
The Insurrection Act’s section 252 empowers the president to call up militias to put down rebellions against federal authority if he “considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” Section 253 permits the president to deploy troops to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” No definition appears in the text of “insurrection,” “rebellion,” “domestic violence,” or any of its other key terms. A US president has wide latitude in defining these terms and thus in deciding what signifies internal threats to the country. Parallel to reversing the meaning of “up” and “down”, the US could have had a situation where the Insurrection Act was invoked to support insurrectionists’ efforts to stymie the legal transfer of power to Joe Biden and thus keep President Trump illegally in office. “Legal” and “illegal” would have switched meanings.
Two linguistic issues made this darkly ironic situation a real possibility. First, in the right political climate, it would not take much to legally construe the term “militia” or “armed force” as any armed group that a president deems appropriate for the task. These terms need not refer exclusively to a state- or federally-organized unit, especially in a neoliberal era where the public-private distinction is fuzzier than ever. Second, the power to identify situations as worthy of militia intervention becomes easier when reality is (mis)construed to justify the action. If enough people believe that a legitimate election was fraudulent – as more than 40% of US voters did as of early January 2022[i] – then it becomes part of lived reality. And, if enough of those people occupy positions of legislative, judicial, or executive power, to say nothing of media outlets, then this new reality becomes institutionalized even if a majority reject it. A future president would then have sufficient support to declare a clean election to be fraudulent. Very little would stop his interpretation of the 1807 Act from assigning non-state militias, like the Oath Keepers, to enforce the lie.
Legalizing Vigilantism in Texas, first attempt
In recent months, the state of Texas almost made this situation a reality with its near passage of bill HB7. The bill failed in the last legislative session, but not because of any legal or moral objections. Even Rhodes’s conviction for sedition served as no deterrence. Instead, along with other quirks and conflicts in legislature’s broader agenda, the Texas House could not reconcile the even more radical demands for the bill by the Texas Senate, including the making of unauthorized entry from Mexico into Texas a state-level crime.[v] Likely to return next year, HB7 would have blended state law enforcement authorities and vigilantes together through the creation of the “Texas Border Force.” Under the command of the Texas Ranger division, any civilian could be deputized into this police force. It would have been authorized to deter the supposed threat of unauthorized immigrants from entering Texas through non-lethal force, intelligence gathering and analysis, and coordination with other state agencies on border operations.
Texas Republicans, and some Democrats, argue that the proposed Border Force is needed to protect the state as the federal authorities have been derelict in their duty of border control. Although the federal government is the exclusive authority permitted to protect the national border, the bill’s proponents argue, rather implausibly, that the “invasion” clause in section 4 of the Constitution allows Texas to take its own initiative on the matter. This clause obligates the federal authorities to protect states from invasion and domestic violence. Along with its unconstitutionality and its expected problems as racial profiling and abuse of force, HB7 placed no geographic restriction on the proposed force’s jurisdiction. It could operate in any Texas county, not only those along the Mexican border, and even against the wishes of county- or municipal-level authorities. In the words of the Texas ACLU, “[T]his really is an extremely broad attempt by the state of Texas, to really just militarize communities.” The proverbial invasion of the migrant “Other” becomes the foil to justify the move.
In his famous book Democracy in America, Tocqueville warned that a majority of single-minded citizens, if properly organized, can dominate the key institutions of government. He poignantly reasoned that this “tyranny of the majority” could snuff anyone else out from public space.
"When a man or a party suffers an injustice in the United States, to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? It represents the majority and obeys it blindly. To the executive power? It is appointed by the majority and serves as its passive instrument. To the police? They are nothing but the majority under arms. A jury? The jury is the majority vested with the right to pronounce judgment; even the judges in certain states are elected by the majority. So, however iniquitous or unreasonable the measure which hurts you, you must submit ( 2000: 252)."[ii]
Texas bill HB7 is an extension of former President Trump’s relentless attacks on the institutions of democratic government that have proven so popular with the GOP base. These provide a dubious sense of empowerment in lieu of a structured government that has allegedly abandoned white America. In turn, the twenty-two states where Republicans control the legislatures and the governorships have aped and multiplied his destructive antics. In the US, Tocqueville’s tyranny of the majority could even materialize as a tyranny of the minority. Given the configuration of the US political system, the minority can overpower the majority. The US Electoral College and the Senate overrepresent Republicans at the expense of Democrats. This imbalanced situation has enabled the GOP to disparage otherwise impartial governing institutions. It makes sense that the aristocratic Frenchman explained that he feared democracy not because of “the extreme freedom reigning there but the shortage of guarantees against tyranny” (ibid: 252).[ii]
[i] As of March 2023, 84% of very conservate Republicans still maintain that Biden’s election was illegitimate, though more Republicans are now leaving the issue behind to focus on the 2024 election.
[ii] Tocqueville, Alexis de. (1835) 2000. Democracy in America. New York: Perennial Classics, p. 252.
Greg Feldman (political anthropologist) is an Associate Professor of Political Sciene at the University of Windsor. His latest book is titled The Subject of Sovereignty: Relationality and the Pivot past Liberalism (Berghahn Books, October 2023)
Cite this article as: Feldman, Greg. June 2023. 'Militias in America: False Reality and the US Constitution.' Today's Totalitarianism. https://todaystotalitarianism.com/militia-in-america
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