Marc Liebman's Blog

Source of Presidential Power to Deploy the National Guard to Help Enforce Federal Law

The first sentence of Article II (Executive), Section 2, Clause 1, states “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States …”

Herein lies the source of the power to call up state militias, which are now called the National Guard. In the wake of the Whiskey Rebellion, our Founding Fathers went a step further when the 2nd U.S. Congress passed the Militia Act of 1792.

In Article I, Section 2 of the Militia Act of 1792, it states “Whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act”. The term “marshals” referred to any law enforcement officer.

At the time the Militia Act of 1792 was passed, Washington was President, and the Federalists had control of both the House and Senate. Congress wanted to make sure that the President of the United States could deploy the state militias at any time to protect U.S. citizens who were, at the time, being attacked by Native Americans in the Northwest Territories when the United States did not have a standing Army or Navy. The legislation to create a standing U.S. Army and Navy would not come until 1794.

Fast forward to 1807, when our Founding Fathers took a significant step further to give the president to step in when states fail or are unable to enforce U.S. and state laws. Jefferson was in the White House, and his Democratic-Republicans had majorities in both the House and the Senate. The law, now codified in Title 10, Sections 251, 252, and 253 of the U.S. Code enables the President to mobilize the National Guard for law enforcement purposes under any one of three conditions:

If requested by a state’s legislature or governor to address an insurrection against the state;To suppress an insurrection in any state that makes it impossible to enforce the law; andTo put down an insurrection, domestic violence, unlawful combination or conspiracy in any state or states which results in the deprivation of any individual’s constitutional rights where the state is unable, fails, or refuses to protect said rights.

To use Sections 2 and 3, the President doesn’t need the acquiescence of the state’s governor or legislature. Once he activates, the term is Federalize, the National Guard, the units report to him as the commander-in-chief of the U.S. military.

The Insurrection Act of 1807 has been modified twice. In 1871, clauses were added to U.S. law to protect African Americans from the actions of the Ku Klux Klan, and then in 2016 to add coverage to the U.S.’s Trust Territories of Guam and the U.S. Virgin Islands.

For the record, the Insurrection Act of 1807 has been upheld by the Supreme Court on numerous occasions. It was used by President Lincoln in 1863 to use the U.S. Army to quell anti-draft riots. In 1932 when President Hoover employed it to disband the Bonus Army.

President Eisenhower used the National Guard to enforce desegregation in 1954. Thirteen years later, in 1967 President Johnson called out the National Guard to put down race riots in Detroit and Newark, and then in 1968, riots following the assassination of Martin Luther King. Then, in 1992, the National Guard was called out by President George H.W. Bush to quell the L.A. riots.

For those politicians who rail against any President using the National Guard to help Federal Authorities enforce Federal law, it would behoove them, as well as judges who rule on their filings, to read the Constitution, the Insurrection Act of 1807 as well as the appropriate sections of the U.S. Code, specifically Title 10, Sections 251, 252 and 253. If they did, then they wouldn’t make stupid statements that assume that We the People don’t know the law.

Photo titled LA Riot Aftermath by Mick Taylor.

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Beginnings of a Global U.S. Navy Presence

Our Founding Fathers faced a combined international commerce/foreign policy/military conundrum. From the very beginning of their history, the Thirteen Colonies were involved in what we would call international trade or commerce today.

Initially, the colonies were a source of food, lumber, indigo, and other natural resources that were sent initially to England. In return, American traders bought manufactured goods to sell to their domestic customers.

When the American Revolution began, U.S. merchants were trading with England, France, The Netherlands, The Kingdom of Naples and Sicily, along with most of the other Italian duchies, The Holy Roman Empire, Norway/Denmark, Spain, and Sweden. The goods and materials traveled by ship. Before April 19th, 1775, they were under the protection of the Royal Navy, the largest and most powerful maritime force in the world.

The American Revolution ended that protection. Naively, U.S. leaders believed that by staying neutral, their merchant ships would be safe. That worked to a degree until the French Revolution began. Suddenly, both the French and British were pressuring the new United States to take sides. We refused.

Between 1783 and 1794, the United States didn’t have a standing Army or Navy. Except for detachments kept to guard Fort Pitt (near modern Pittsburgh) and West Point, the Continental Army was dissolved and its weapons given to state militias. All the ships of the small Continental Navy were either sold or scrapped.

Some in Congress, mostly Federalists led by Washington and Adams, wanted to create a small, frigate-based, standing Navy. Those in the Democratic-Republican Party, led by Jefferson and Madison, opposed this idea.

Pressure from merchants whose ships and cargoes were at risk, and a raging war in Europe, led the Congress to pass the Navy Act of 1794. Through it, despite the efforts of the Democratic-Republicans in Congress to hinder the construction and manning of the ships, the bill authorized six heavy frigates – Chesapeake, Constellation, Constitution, Congress, President, and United States – plus sloops and brigs.

They arrived none too soon because in 1798, the French Revolutionary Government ordered its Navy and privateers to seize U.S. merchant ships in the Caribbean in what is known as the Quasi-War. The fight ended in 1800, and now President Jefferson proposed to mothball the frigates and create a small, coastal defense force that would be cheaper to man and maintain.

Greedy Barbary Pirates caused Jefferson to change directions. He sent ships to the Mediterranean to change their behavior. Once peace broke out in 1805, except for a few ships, the squadron was recalled, put in ordinary, and again, Jefferson forced his idea of a coastal defense force composed of small gunboats on the U.S. Navy.

We again learned the folly of this approach in 1812 when the Royal Navy swept the gunboats and small sloops (and the U.S. Army) aside and landed the British Army on U.S. soil, burned Washington, and attempted to take Baltimore.

With the Treaty of Ghent signed, we were again at peace with Great Britain, but the Barbary Pirates raised their ugly head again. Two squadrons were sent to the Mediterranean to show the Barbary pirates the error of their ways.

This was the second time that the United States Navy and Marine Corps were ordered to conduct expeditionary warfare far from the U.S. The Navy had to figure out how to support ships and Marines more than 4,000 miles from home using bases in foreign lands.

At the end of his presidency, Madison, having learned the lessons from Jefferson’s (and his failed naval policies between 1800 and 1815), gave in to the faction in Congress that urged him to maintain a small standing navy based on heavy frigates. He also authorized the U.S. Navy to maintain a squadron in the Mediterranean to protect U.S. shipping.

Since then, the United States Navy has maintained a presence in the Mediterranean that continues to this day. By the 1820s, the U.S. Navy had ships stationed in the Caribbean and off Africa. By the 1840s, the U.S. Navy had a squadron in the Western Pacific.

1813 Thomas Birch Painting of United States defeating H.M.S. Macedonian.

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Three Ship Navy Legacy of the U.S.’s First Ship-of-the-Line

Prior to 1814, the U.S. built only one ship-of-the-line. Named America, the keel was laid down in John Langdon’s shipyard in Kittery, NH (which became part of Maine when it became a state in 1820) and was not launched until 1782. The delays were caused by a lack of almost everything, from money to pay the shipbuilder to enough skilled labor to build a large ship to materials.

Congress authorized the ship on November 20th, 1776, the keel was laid in May 1777. Its first captain was supposed to be John Barry and his appointment is dated November 6th, 1779.

However, during construction, members of the Continental Congress proposed to reduce America’s armament to 54-guns to save money. Barry successfully fought this proposal, and due to the delays in getting America built led to Barry being given command of Alliance, 36-guns.

The new CO was John Paul Jones who threw himself into getting America ready take on the Royal Navy with its 74 guns. Getting the ship fitted out with its planned armament of thirty long 18-pounders, 32 long 12-pounders, and fourteen long 12-pounders was a struggle due to a lack of money.

During the fitting out process, Congress decided to give America to the French Navy to replace the 74-gun Magnifique, which broke up after grounding in Boston Harbor. Despite the difficulties, Jones got America equipped and ready to sea. It left Kittery with a French crew on June 24th, 1783.

Though under-gunned compared to other French ships-of-the-line that were armed with 24- and 36-pounders, America served with the French Navy for a little over three years. There are few records about America’s service in the French Navy until 1785, when a French Marine surveyor found dry rot in her frame and bulwarks and could not be repaired. In their haste to complete America, Langdon’s shipyard, used “green” wood instead of properly dried wood.

The French scrapped the American-built America and a new 74-gun Temaire-class ship-of-the-line was built and named America. It had twenty-eight 36-pounders on the lower gundeck, twenty 18-pounders on the upper gun deck, and sixteen 8-pounders and four 36-pounder carronades on the forecastle and upper deck.

During the battle known as the Glorious First of June which took place on June 1st, 1794, the French America was captured by H.M.S. Leviathan, repaired and renamed Impétueaux because the Royal Navy already had another ship named America.

In early March 1799, the crew of Impétueaux’s crew mutinied. With the help of his Royal Marine detachment, Impétueaux’s captain, Sir Edward Pellew, put down the mutiny. The ship’s career ended in 1813 when Impétueaux was broken up.

Except for the original America, first the Continental Navy and then the U.S. Navy eschewed building more ships-of-the-line until 1814. Before it left office in 1800, the Adams administration proposed two 74-gun ships-of-the-line, Columbus and Franklin. Neither was built.

It would be another 14 years before the U.S. again began building ships-of-the-line. With the nation locked in a war with Britain, U.S. frigates of the Navy did more than hold their own against the Royal Navy frigates. However, the U.S. Navy had nothing that could go toe-to-toe with the British ships-of-the-line.

Model of Achille, sister ship to the French 74-gun ship-of-the-line America displayed at the Musée National de la Marine National de Paris

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Three Navy Legacy of the U.S.’s First Ship-of-the-Line

Prior to 1814, the U.S. built only one ship-of-the-line. Named America, the keel was laid down in John Langdon’s shipyard in Kittery, NH (which became part of Maine when it became a state in 1820) and was not launched until 1782. The delays were caused by a lack of almost everything, from money to pay the shipbuilder to enough skilled labor to build a large ship to materials.

Congress authorized the ship on November 20th, 1776, the keel was laid in May 1777. Its first captain was supposed to be John Barry and his appointment is dated November 6th, 1779.

However, during construction, members of the Continental Congress proposed to reduce America’s armament to 54-guns to save money. Barry successfully fought this proposal, and due to the delays in getting America built led to Barry being given command of Alliance, 36-guns.

The new CO was John Paul Jones who threw himself into getting America ready take on the Royal Navy with its 74 guns. Getting the ship fitted out with its planned armament of thirty long 18-pounders, 32 long 12-pounders, and fourteen long 12-pounders was a struggle due to a lack of money.

During the fitting out process, Congress decided to give America to the French Navy to replace the 74-gun Magnifique, which broke up after grounding in Boston Harbor. Despite the difficulties, Jones got America equipped and ready to sea. It left Kittery with a French crew on June 24th, 1783.

Though under-gunned compared to other French ships-of-the-line that were armed with 24- and 36-pounders, America served with the French Navy for a little over three years. There are few records about America’s service in the French Navy until 1785, when a French Marine surveyor found dry rot in her frame and bulwarks and could not be repaired. In their haste to complete America, Langdon’s shipyard, used “green” wood instead of properly dried wood.

The French scrapped the American-built America and a new 74-gun Temaire-class ship-of-the-line was built and named America. It had twenty-eight 36-pounders on the lower gundeck, twenty 18-pounders on the upper gun deck, and sixteen 8-pounders and four 36-pounder carronades on the forecastle and upper deck.

During the battle known as the Glorious First of June which took place on June 1st, 1794, the French America was captured by H.M.S. Leviathan, repaired and renamed Impétueaux because the Royal Navy already had another ship named America.

In early March 1799, the crew of Impétueaux’s crew mutinied. With the help of his Royal Marine detachment, Impétueaux’s captain, Sir Edward Pellew, put down the mutiny. The ship’s career ended in 1813 when Impétueaux was broken up.

Except for the original America, first the Continental Navy and then the U.S. Navy eschewed building more ships-of-the-line until 1814. Before it left office in 1800, the Adams administration proposed two 74-gun ships-of-the-line, Columbus and Franklin. Neither was built.

It would be another 14 years before the U.S. again began building ships-of-the-line. With the nation locked in a war with Britain, U.S. frigates of the Navy did more than hold their own against the Royal Navy frigates. However, the U.S. Navy had nothing that could go toe-to-toe with the British ships-of-the-line.

Model of Achille, sister ship to the French 74-gun ship-of-the-line America displayed at the Musée National de la Marine National de Paris

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Barbary Pirates Déja Vu All Over Again

History will tell us that the treaty signed in June 1805 with Dey Yusuf Karamanli of Tripoli turned out to be more of a truce rather than a treaty. The United States paid both tribute and a ransom of $60,000 (~$1,262,244 in September 2025) for the return of all Christian prisoners, ships, and cargos. In addition, Dey Karamanli agreed not to seize any more U.S. ships. The U.S. negotiator – Tobias Lear – would say that the war was over, but the reality was far different.

By 1807, the Tripolitans but also the Algerians were again seizing U.S. ships. Jefferson ignored the problem because he had bigger problems, i.e., the U.K.’s trade policies and the Royal Navy’s practice of impressing seamen in ever-increasing numbers.

Jefferson, tried to turn the U.S. Navy into a gunboat-based defense force rather than what is known as a blue water navy. Other than the small number of frigates that made it to sea, Jefferson’s gunboats failed to protect U.S. harbors and led to the burning of Washington and the British attack on Baltimore.

Once the war of 1812 was over, Madison now had a battle-tested Navy that had won battles on Lake Erie and Lake Ontario as well as many frigate duels. Many of those Navy commanders who had been junior officers during the First Barbary Pirate War were now senior officers and well-versed in what was needed to deal with the Algerians.

On March 3rd, 1815, Congress authorized President Madison to send two squadrons to the Mediterranean to deal with the Algerians. War was not declared.

Stephen Decatur’s squadron had Constellation, Macedonian (captured by Constellation from the British during the War of 1812), Guerriere (new construction 54-gun heavy frigate and named after the ship captured by Constitution), and seven other smaller ships. Decatur flew his flag on Guerriere and his squadron left New York on May 20th, 1815. Shortly thereafter, William Bainbridge left the U.S. flying his flag on Independence, a 74-gun third-rated ship of the line and 17 other ships.

Off Cape Gata near Almeria, Spain, Constellation and the sloop-of-war Ontario, eighteen 32-pounder carronades engaged the Algerian flagship Mashouda, 44 guns which was trying to run from the American squadron. In the engagement, Algerian Admiral Raïs Hamadou was killed when Guerriere fired a broadside into his damaged ship causing the Algerians to haul down their flag. Mashouda was escorted to Cartagena, Spain by Macedonian.

On June 19th, Decatur’s squadron captured the Algerian brig Estedio of Cape Palos, Spain. It too was taken to Cartagena.

Decatur then sailed into the port of Algiers to meet with the Dey of Algiers who agreed to a treaty that returned all captured U.S. vessels and sailors and committed to no longer demand tribute or seize American ships in return for U.S. $10,000 in gold (~$210,374 in September 2025).

One would have thought that matters ended there, but they didn’t. Now not having to deal with Napoleon, the British sent a squadron under Vice Admiral Edward Pellew to the Mediterranean to convince the Dey of Algiers, Tunis, and Tripoli not to seize British ships. Pellew thought, after difficult negotiations that resulted in a treaties with all three, that he’d accomplished his mission.

Unfortunately, after the treaty was signed, the Algerians massacred 200 Corsican, Sicilian, and Sardinian fishermen they had as prisoners. Pellew returned in August 1816 and pounded the city of Algiers. His gunfire destroyed the Dey of Algiers’ fortifications and his remaining ships. In September 1816, the Dey again agreed to the original terms. The remaining 1,083 slaves held by the Algerians were freed, and the U.S. got its $10,000 back.

There are several important facts to note from this Second Barbary Pirate War. First, Congress authorized Madison to use military force without a declaration of war.

Second, as it did in the First Barbary Pirate War, the U.S. Navy had again proved that it could successfully conduct expeditionary warfare far from U.S. shores.

Third, the Second Barbary Pirate War led to a “permanent” squadron of ships patrolling the Mediterranean that has been deployed there ever since.

Warren painting of the capture of the Algerian frigate Mashouda courtesy of the Naval History and Heritage Command.

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Seeds of Our Defense Procurement Issues

When Congress passed the Naval Act of 1794 on March 27th, 1794, the modern U.S. Navy was born. Note that the Continental Navy, was created in 1775 and was disbanded in the summer of 1793. For 11 years, the United States of America, a nation whose economy depended on overseas trade, had no navy.

The act is very specific in what Congress wanted. To be fair, John Barry, the man considered the father of the modern U.S. Navy, had significant input into the text of the bill. You can see Barry’s influence in the specificity of the desired armament, mission, and desired manning. They can be found in Sections 2, 3, and 4.

Section 2 states that six ships, four with 44 guns and two with 36. Sections 6 through 8 address pay, rations, terms of enlistment, etc.

It was Sections 1 and 9 that caught my attention. When Vice President John Adams signed this bill into law, the United States was paying tribute to the Dey of Algiers, the Bey of Tripoli, and other leaders along the North African littoral. By the time the U.S. went to war with the Barbary Pirates in 1803, 20+% of the Federal budget went to tribute to these pirates in the hopes that they would stop seizing U.S merchant ships.

Section 1 states, WHEREAS the depredations committed by the Algerine corsairs on the commerce of the United States render it necessary that a naval force should be provided for its protection. In other words, we need a navy to protect our ships.

Section 9 states, Provided always, and be it further enacted, That if a peace shall take place between the United States and the Regency of Algiers, that no farther proceeding be had under this act. This section gave Congress carte blanche to interfere with the funding (and later armament) of the construction of these ships, depending on how they perceived the threat. This section was added by the Federalists to appease Thomas Jefferson’s and James Madision’s allies in the Democratic-Republican party who did not want to pay for a Navy.

Nonetheless, six frigates were authorized. Chesapeake, Constitution, President, and United States would have 44 guns. Congress and Constellation, 38. Then Secretary of War Henry Knox (the first Secretary of the Navy had not yet been appointed), suggested that in order to help boost the economy, the six frigates should be built in six different yards in six different cities in six different states. President Washington approved and contracts were issued to shipyards in Baltimore, Boston, Gosport (now Norfolk), Kittery (Maine), New York, and Philadelphia to build Joshua Humphrey’s design.

Back then, frigates of this size would take 12 – 18 months to build in Virginia where work could proceed year-round, and longer in northern cities where harsh weather could impede progress. However, it took almost five years from the date the bill was passed until the last frigate, President was commissioned in on April 10th, 1799.

The first off the ways was United States, launched on May 10th, 1797, followed by Constellation on September 7th, 1797, Constitution on October 21st, 1797. Two years would pass before the next three ships, Chesapeake, Congress, and President were completed. Why?

Money. Each year, the Democratic-Republicans (which became the Democratic Party in 1824) forced Congress to reduce and/or cut funding for the frigates, or pay for the crews, etc., etc., etc. No money, no progress.

The next obvious question is why did Congress fund their completion? It is a one-word answer – war. When the French Navy and privateers began seizing U.S. merchant ships in the Caribbean, we needed to protect them, and the three completed frigates weren’t enough. Once the last three were finished, the war was over, and Jefferson was now in office and the frigates were decommissioned, thus beginneth Jefferson’s war with the U.S. Navy.

1997 Photo by JO2 Todd Stevens of the U.S.S. Constitution under sail for the first time in 116 years.

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Establishing What a Crime Is

When we became an independent nation on September 3rd, 1783 (the day the Treaty of Paris was signed by both sides), we inherited the British legal system. It was, however, in conflict with many of the rights granted under the Constitution.

If you look at the acts passed by the First U.S. Congress which was in session from March 4th, 1789, to March 3rd, 1791, many were aimed at codifying what was in the Constitution. One of the first laws was the Judiciary Act of 1789, which was signed into law by President Washington. Its purpose was to create a layered judicial system that would operate under the Supreme Court. Besides establishing Federal District Courts, it set the number of Supreme Court Justices at five. Our Founding Fathers believed that the Supreme Court Justices could act in an appellate capacity for each of the five judicial districts.

Now that Congress had established a judicial framework, it needed to define what a Federal crime was and establish standardized punishments. In the Constitution, there is only one crime – treason – listed. This was a direct result of living under the rule of King George III and his minions, who could accuse anyone of treason and have the accused hanged.

The primary author of the Judiciary Act of 1789, Connecticut Senator (and later the third Chief Justice of the Supreme Court) Oliver Ellsworth. He set about to write a law that defined Federal crimes and punishments for those who were convicted. To be fair, it was not the first law passed by Congress defining crimes, but it is the one that became the foundation of the U.S. Criminal Code.

To create what became The Crimes Act of 1791, Ellsworth’s committee studied the laws from Massachusetts, New Jersey, Pennsylvania, South Carolina, and Virginia. All the members of the committee were attorneys who either went to law school in the U.S. or at one of the English Inns of Court. The law generated very little debate and was passed on April 30th, 1791, and signed into law the same day.

If you read the act, the first crime defined is treason. Suppose one is convicted of committing treason or knowing that treason was about to be committed. In that case, the only punishment listed is death.

Piracy, whether one commits the act, or is an accomplice, if convicted the only punishment is death. If you are considered an accessory, i.e. aiding someone to commit piracy, the fine was $500 and three years in prison.

Counterfeiting is the third crime listed in the bill. Anyone convicted of this crime, whether it be currency, bonds, or any legal document of the U.S., the only punishment listed is death.

Article One outlines what the legislation calls “offenses against the laws of nations” which are defined as affecting diplomatic immunity or obstructing the work of an ambassador or counsel. If a jury convicted you, then you would face three years in prison and be fined. No amount was set.

There are other crimes listed, e.g., perjury, and covering them would take up way too much space. Understand that what the act does is lay out what are considered Federal crimes, which would be tried in Federal courts rather than state courts. Ellsworth’s text clearly defines the scope and the limits of Federal jurisdiction as “Federal enclaves, properties of the Federal government, territories of the United States and the seat of government….”

While the punishments for some of the crimes listed in The Crimes Act of 1791 have changed, its core terms and language have been upheld many times by the Supreme Court. Some of the terms have been modified to make them more “current.”

Three other interesting points. One, the specific use of the word “death” for treason and piracy strongly suggests that the Founding Fathers believed the death penalty was a legitimate punishment and allowed by the Constitution. Two, The Crimes Act of 1791 also firmly establishes that Congress and the President have power over the Federal judiciary, which can be interpreted as going beyond approving judges and providing funding.

And three, what is most interesting, is that it reaffirms Congress’ power to impeach Federal judges and remove them from the bench. Or, if a judge is convicted in state court for a crime, allow the judge to be terminated..

Image is Oliver Ellsworth, Federalist Senator from Connecticut and 3rd Chief Justice of the Supreme Court of the U.S.

 

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The District of Columbia’s Chain of Command

Presidential power over the administration of what is known as the District of Columbia comes from the Constitution. In Article I, Section 8, Clause 17, the Founding Fathers wrote (Capitalization is from the original document) –

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and their needful Buildings….

Constitutional scholars will tell you that this clause gave the nascent Federal government the power to acquire land for a seat of government. Eventually, Maryland ceded the land we now call the District of Columbia. These same scholars will also tell you that this clause gives Congress the power to write laws governing the capital district. And, by definition, the courts come under Federal jurisdiction and the person empowered to enforce the law in the District of Columbia is the President of the United States.

Wait you say, didn’t this change with the 23rd Amendment? The answer is sort of…. Clause 1 of the amendment enables the District of Columbia to elect three electors which is the total from the least populous state. Clause 2 gives the Congress to enforce this amendment.

Well, what about home rule? Again, the answer is sort of. The District of Columbia Home Rule Act of 1973 gives the residents of the district the power to elect a city council and a mayor who will run the district. This council has limited power and through the Home Rule Act, Congress specifically retained the power to block any action by the mayor and/or city council. The good news is that residents of the district do not pay state or local taxes.

Does the District have a representative in Congress. Yes. It elects one member to the House of Representative but this individual can participate in hearings, committee votes but cannot vote for passage of any bill.

There is a movement among District of Columbia residents for statehood. This effort has failed because it is a Constitutional one. Until the aforementioned clause in the Constitution is changed, the district will remain under the auspices of the Federal government.

In our governmental system, the District of Columbia is an anomaly. Constitutionally, the Congress makes the laws, the Supreme Court determines if they are constitutional and the President through various agencies, enforces the laws.

The Federal government funds the District of Columbia and the operation of the city, including its police force. Judges are appointed by the president. And, because the Executive Branch of the Federal Government is charged with enforcing Federal law, ultimately law enforcement in the district.

In Section 740 of DC Home Rule Act, titled Emergency Control of Police, it states that if the President “determines an emergency of a special nature exits” he can take control of the DC Metropolitan Police. He needs to give notice to the mayor and can do so only for 30 days without support from the Congress via legislation.

To sum up, like it or not, when you clear away all the chaff, the ultimate responsibility for running the District of Columbia ultimately resides with the President of the U.S.

Image is Pierre Charles L’Enfant’s original drawing for what became Washington D.C. courtesy of the Library of Congress.

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Lighthouses, Beacons, Buoys and Public Piers

Our Founding Fathers knew that the nation they created, the United States, was at its core a maritime nation. Yes, its economy was agriculturally based, but we had and still do have a plethora of natural resources. More importantly, since the founding of each of the Thirteen Colonies, they have all had customers overseas.

Since many of them were traders who dealt in what we now call international commerce, functioning harbors were a vital necessity. Back then, there were no airplanes, and like today, most products traveled by ship. Merchant ships running aground were bad for business. Accurate charts had to be created and channels marked for captains to see. Mariners needed to be warned of dangerous waters, and our Founding Fathers didn’t want anyone or any business to have a monopoly on piers and docks.

Early in the First U.S. Congress, Senators and Representatives gave the power to assume the support – funding, maintenance, design, and installation – of beacons, buoys, lighthouses, and public piers. The act was signed into law by President George Washington in July 1790.

This piece of legislation had far-reaching implications.

Congress created the Lighthouse Establishment to manage these navigational aids and put it under the Department of the Treasury. This arrangement lasted until 1851, when problems – corruption and inefficiency – caused Congress to create the Lighthouse Board. The new organization gave responsibility for the construction and maintenance of the lighthouses to the U.S. Corps of Engineers. The legislation also gave the responsibility for creating and managing navigational aids on inland waterways to the Corps of Engineers while the Coast Guard (back then known as the Revenue Cutter Service) maintains those on the coasts.

This arrangement lasted until 1910, when the Lighthouse Board was dissolved and the Lighthouse Service created. Finally, in 1939, the Coast Guard was given the responsibility for design, construction, installation, and maintenance of all maritime navigational aids, making the Lighthouse Service part of the Coast Guard.

However, since the 1930s, we’ve added navigational aids for aircraft, which are the responsibility of the FAA. Initially, the Department of Defense was responsible for the constellation of GPS satellites, which is now managed by the Space Force.

In 1807, Congress created the Survey of the Coasts, which became the U.S. Coast Survey in 1836, until some bright bulb in Congress decided to rename it the U.S. Coast and Geodetic Service in 1876, the name it holds today. These are the folks charged with charting and mapping the coasts, rivers, and lakes of the United States and its territories for which buoys lighthouses were needed.

Then in 1970, the government merged the Coast and Geodetic Agency with several other agencies to create what we now know as the National Oceanic and Atmospheric Agency a.k.a. NOAA.

All of these navigational agencies and systems weren’t even in the imaginations of scientists and engineers back in 1790 when the Lighthouse Establishment was created. Yet, our Founding Fathers realized the importance of them not only for national security but also as an aid to efficient commerce.

Image is the pennant flown on ships of the U.S. Lighthouse Service.

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Righting a Constitutional Wrong

One of the most influential and forgotten figures in American History is John Bingham, representative from Ohio. Before the Civil War, he was one of the most vocal opponents of slavery and served in the Union Army during the Civil War as its judge advocate general. After the assassination of President Lincoln, Bingham was one of the Federal prosecutors at the trial of John Wilkes Booth.

In 1866, with the Civil War over, the Joint Committee on Reconstruction, of which Bingham was a member was tasked with writing legislation that would (a) prohibit any state or person from ever owning a slave, (b) ensuring that former slaves were granted U.S. citizenship and (c) require every existing state, if it hadn’t already done so, and every new state to ratify the Bill of Rights.

One of the first bills submitted to Congress, but didn’t pass, had the words – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Bingham and the other members of the sub-committee kept working. If you read their correspondence, their major concerns were ensuring that whatever amendment was submitted for ratification ended all chances for slavery in the United States, and two, granting full U.S. citizenship to those individuals and their descendants who were brought to this country involuntarily.

That was the intent of what ultimately became the 14th Amendment. However, as it wound through the write and re-write process, clauses were added and deleted.

The words listed above became Clause 1 of the 14th Amendment because the Constitution is silent on the promises of the Declaration of Independence. This clause, known as the Equal Rights Clause, has been the basis of many laws such as the Civil Rights Act. At the time, many members of Congress wanted to limit this clause just to freed slaves, but ultimately, Bingham won out, and any reference to slavery was dropped. The broad terms of Clause 1 are now part of our Constitution.

However, there are other clauses that are relevant. It was clear that Bingham et al were targeting members of the Confederacy.

Clause 2 sets the voting age at 21. It also emphasizes that any citizen of the U.S. can vote unless they participated in a rebellion, i.e., the Confederate Army or the government of the Confederacy.

Clause 3 states that no one who has sworn allegiance to another country or participated in a rebellion against the U.S. can be a judge, member of Congress, or elected to Federal office.

Clause 4 prohibits the Federal government from assuming the debts of any states or individuals who have participated in a rebellion against the U.S. It also forbids the former Confederate states from assuming the debts of their citizens. Keep in mind, under the Constitution, the U.S. picked up the tab for the states’ individual debts incurred during the War for Independence once they ratified the Constitution.

Clause 5 gives Congress the right to modify the amendment.

From both the language of the 14th Amendment and the writings of Bingham and the sub-committee, it is clear that the gift of citizenship given to slaves who were brought here and/or were born here. No other group of residents of the U.S. was considered in 1866 when the amendment was proposed and when it was ratified in June 1868.

Official Photo of John C. Bingham, Representative from Ohio.

 

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