Donald Trump and the Insurrection Act

the great populist who sent troops against striking workers

It’s sickening to be talking about what Donald Trump might do as a re-elected president. I fervently hope that all such discussion becomes utterly irrelevant to events, but the fact remains that the worst president in U.S. history—a pretty high bar—could be returned to office, and if he is, the chaos and mayhem that marked every day of his first term might well become more pointed and organized, to even more dire effect for this country.

The chaos and mayhem also might not become more pointed and organized, regardless of how much Trump wants it to. Either way, a second term of his kind of chaos and mayhem would be crushing.

At the most trivial level of impact, a second Trump term would put an end to this blog. There’s no way I’m going to make connections between U.S. history and whatever he might then start doing, or not doing. That’s what every other liberal history type did, for four tedious years, to no evident effect, given the current possibility both of his reelection and of his instituting dictatorial systems if reelected. I started BAD HISTORY right after the 2020 election precisely because that particular aspect of our day-to-day public discourse had come—I still hope permanently, possibly temporarily, but in any event mercifully—to an end.

The longer-range issues haven’t come to an end. Naturally I’ve referred to Trump a number of times in these essays, and to his and his followers’ actions, and to issues his presidency and post-presidency raise. Still, the key thing for this blog has been—and remains—to focus on what those issues point to in our history, not to focus on him.

The fact that serious problems posed by Trump and Trumpism will go on, whether he gets back in or not, is something all liberal history-oriented commentators warn of, and of course I think they’re right. But I also think that a fundamental problem, built into their conceptions of Trump’s relationship to U.S. history, prevents those historians and commentators from really getting it. Only on matters of race and racism are liberals likely to hold our nation’s founders and the form of government they founded accountable for disastrous national problems like Trumpism. On issues other than race, they position Trump as an ultimate, egregious violation of American foundational and constitutional principles.

Liberal history therefore identifies the origins of what has now flowered as Trumpism—pro-authoritarian incidents like Nazi-inspired conspiracies of the 1940’s and the overturning of Reconstruction—in populist impulses troping toward a supposedly white-Southern-inspired reaction formation to U.S. victory in the Civil War, shared by various elements of the American people in opposition to, liberal history insists, the thinking of our founders about the basic operations of government. Upholding and defending the founders’ thinking and operations therefore continue, in this line of thought, to offer the best defense against Trumpist assaults.

Hence liberal historians’ having charged themselves with a duty to instruct the public in what I see as a fatally sentimentalized view of how we got here. It’s a view that I think is perpetrated to the detriment, not the encouragement, of the public realism that might actually help (or might not). Even as Heather Cox Richardson, to name perhaps the most important voice in that mode, firmly and correctly underscores, in her bestselling Democracy Awakening, the inextricability of racial slavery from the American founding, she just as firmly strives to present the writing and ratification of the Constitution as, on balance, flaws duly noted, a fundamentally progressive step toward the creation of American democracy. Many of you already know that I see the development of democracy in America as a fitful and messed-up, positive yet painfully limited process of overcoming and outright demolishing many important aspects of the original framers’ efforts. There’s every reason to agree or disagree with either or both of us on the big picture; my point today is that Richardson’s current political preoccupations get worked back into her narrative of the republic’s creation to what I think is a damaging effect on public understanding of what’s been happening here all along.

You don't have to read the founding period my way to see that it's almost impossible to read it her way. According to Democracy Awakening, for example, the Articles of Confederation “could not protect property of either the poor or the rich and thus faced the threat of landless mobs”; hence the need for the U.S. Constitution.

That's an amazingly broad and confused description of the situation prevailing during and after the so-called Shays Rebellion, a description suggesting, I guess, that the framers convening at Philadelphia hoped to protect poor people’s property as well as rich people's in order to avoid threats to stability posed by mobs. The suggestion is flatly contradicted both by the framers’ correspondence and by their actions at the convention, which was openly dedicated, across political and regional and other divides, to shoring up the property of the rich and cracking down, with newly consolidated police power of the kind Trump now dreams of using, on crowd actions traditionally taken by the unenfranchised against such regressive measures.

Another of Richardson’s assertions about the early republic connects with ideas pursued in her book How the South Won the Civil War. In Democracy Awakening, Richardson tells us that when the framers began fighting over how to interpret the Constitution, “Southern leaders opposed Washington’s policies,” as carried out by Hamilton, and that this southern opposition to the Federalist majority led to our first political partisanship, which she endorses, on the one hand, for engaging ordinary people in politics, yet follows Washington himself, on the other, in casting as a nationally weakening factor.

Many southern leaders did oppose Washington’s and Hamilton’s policies. It fits with Richardson’s larger narrative that she leaves out the many important northern leaders who did too, from the Massachusettsman Elbridge Gerry to the Livingstons of New York. The party to become known as Jeffersonian would never have prevailed in the 1800 election without pan-regional support connecting, especially, rural Virginia to urban New York City. On the flipside, the South’s Federalists, men like North Carolina Senator Benjamin Hawkins, though increasingly embattled, remained close to Washington (also of course a southerner) and served as best they could as inter-party brokers.

Regionalisms always played roles. They didn’t play the roles that liberalism, looking back obsessively through the lens of the Civil War, in search of explanations for Trumpism, wants them to. And when Washington condemned the emergence of formal political parties, he was a) the head of the majority party and b) believed that any form of standing opposition to a legislative majority—anything beyond one-off protesting an individual law—was wrong and should be shut down. That one-party idea of anti-partisanship is among the founding antidemocratic ideas that had to be overcome. Trump is promoting it today.

(Washington could even go a bit Q. By the late 1790’s, he was concerned about the secret influence of the Illuminati on U.S. politics. I don’t make anything of it. Fun fact, though.)

Democracy Awakening is clearly intended more as an all-too simplistic civics primer for a readership with foregone conclusions than a realistic history. I’m not going to get into it all now. Suffice it to say you’ll find a very different drama of democracy in America in my forthcoming book The Hamilton Scheme (now available for pre-order!).

Trump is doing a very good job, as he might put it, of aiding liberal American historians and their followers in constructing U.S. history in these intellectually insupportable and politically ineffectual ways. For it’s true: his regard for the Constitution and founding American principles—for the rule of law itself—is nonexistent. That’s in contrast to the feelings of his most ardent followers, who see themselves as defenders of those very principles, their hero a new Washington. They’re deluded about both the founding and Trump, but which delusions have been more damaging to American politics? Theirs? or those of a voting intelligentsia and a Democratic Party governing class, misinformed by liberal civics and representing the most responsible segment of our citizenship?

I got to thinking about all this today thanks to an essay in the Times by David French on the Insurrection Act, calling it our most dangerous law (I’ll link to the essay in “Further Reading,” below). French, that is, doesn’t make the error of presuming that if and when a hypothetically reelected Trump invokes the Insurrection Act to send federal troops to crack down on political enemies, press critics, and non-insurrectionist protestors, he’ll be illegally subverting an otherwise excellent law given to us by great American leaders of the past. Trump is more likely than others to abuse a law that, French suggests, already has the abuse built into it, and I like that angle, because in “a government of laws, not of men,” you shouldn’t be forever looking at the “men” (officeholders and powerseekers) but also at the laws.

Say you do succeed in keeping Trump himself out of the presidency. You might still, given the fundamental operations of the Insurrection Act, be enabling anti-democratic authoritarianism in the U.S. Maybe look to fixing the system.

Still, when French dives into the history of the act, he seems reflexively eager to get prior presidents off the hook. “You might wonder, “ he says, “why the Insurrection Act hasn’t presented much of a problem before now. It’s been used rarely, and when it has been used, it’s been used for legitimate purposes.”

I usually avoid linking off this blog in the main body of a post, but I included French’s embedded link there because it’s to a Brennan Center list of the thirty times the act has been invoked. Which might sound rare. Or might sound surprisingly common. It depends on where you sit.

Also depending on where you sit, “it’s been used for legitimate purposes” needs parsing. In 2020, when Trump was threatening to call out federal troops against protesters, Senator Tom Cotton published a op-ed in the Times urging him to do so. The reaction of liberals and the left was a general recoil, casting federal military suppression of a protesting, even at times rioting citizenry as inherently fascistic and racist. The entire Times opinion department went into a tailspin over Cotton’s piece, yet French is now saying—and saying in the Times—that all thirty instances where federal troops have actually been used against citizens (Trump didn’t) were legit.

Do I predict an outraged walkout by younger Times staff over the French article? No. Does the liberal intelligentsia have a coherent pov on this issue? I don't think so. French evidently believes Andrew Jackson’s calling out federal troops to put down a strike—the first but not the last time that happened—was all good. I don’t. No federal crime had even been alleged; the deployment was a personal favor to the company’s owner, a Jackson crony. I have a feeling LBJ’s bringing federal troops into Washington, D.C., in 1968 remains pretty controversial too; it does with me, anyway. On the other hand, many of those who in ’20 condemned the idea of using troops against citizens probably see Eisenhower’s sending troops to Little Rock, in ’57, to enforce federal anti-segregation laws, as a good thing. The Insurrection Act is generally thought to have its roots in militia acts of the earlier 1790’s, which, when invoked by President Washington in 1794, led to manifestly illegal actions by government against citizens that I’ve written about so many times I won’t bore you by going into now (the Brennan Center doesn’t have that episode on the list because it pre-dated the act).

I do agree with French. The issue is popular, representative oversight of executive power. We should rewrite the Insurrection Act before not just Trump but anyone else has a chance to use it. Yet the curious notion, embedded in French’s piece, that until a second-term Trump’s invocation of the act—which hasn’t even happened yet and, God and the electorate willing, won’t—all invocations of the act were benign, plays straight into liberal fantasies about U.S. history and civics that, given Trump's increasingly blatant promises to establish dictatorship if reelected, I find—I’ll say it—dangerous.

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Further Reading

“The Insurrection Act Has Got to Go,” by David French

A U.S. civics primer in the guise of a one-volume history of the United Stares, which I find a good read, though I largely disagree with its premises: These Truths, by Jill Lepore.

Sorry, paywalled, on JSTOR: “Andrew Jackson, Strikebreaker,” by R.B. Morris.