“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —Fourth Amendment to the U.S. Constitution.
On May 31st, I closed my observations with the hope that, in places where rioting persisted, lawful authorities would stop it only with proportionate means, without vindictiveness, and without harm to peaceable protesters. In cities throughout our Union, most violence soon subsided, due largely to the discipline of the many who came to demonstrate peacefully.
Yet in Portland, Oregon, hazards to liberty have arisen from the federal response to the few who persist with violence. That response, in the whole, has been marked by excess, vindictiveness, and harm to peaceable protesters. Grave principles are in play; but a shallow show is also being made of them, which works insidiously to erode all sense of principle. It ought not to be followed blindly.
The details of the events in Portland are complex, conflicted, and best understood by those who are well-acquainted with that city; I shall not attempt to establish them all. A few, however, do not appear to be seriously disputed by the parties involved:
1. That crowds have regularly formed around a federal courthouse, and at various times, some individuals have shot fireworks at it, set fires around it, and attempted to break into it.
2. That federal agents from U.S. Customs and Border Patrol, and perhaps other agencies, have been deployed to Portland and have been operating from the courthouse.
3. That those federal agents have not been readily identifiable from their uniforms or vehicles.
4. That those federal agents apprehended at least one person beyond the courthouse grounds by forcing him into an unmarked vehicle, and then held him at another location without charge.
5. That the State of Oregon and the City of Portland opposed the abovementioned actions of those federal agents, and the State of Oregon filed a federal lawsuit to restrain them. The Mayor of Portland urged the federal agents to depart the city.
6. That the President of the United States has encouraged the actions of those federal agents and threatened publicly to deploy them to other cities across the Union. He subsequently ordered such a deployment, over the objections of some of those city governments.
With these facts in mind, I have a few new observations to make.
The act of unidentifiable agents apprehending a man on a street at some distance from the scene of unrest, taking him to another location in an unmarked vehicle, and holding him without charge, appears in every way to be violation of the right of the people to be secure in their persons against unreasonable searches and seizures. Whether it is in violation of current law, the court will decide; but if it is found not to be, then Congress ought to consider whether that law is in keeping with the Constitution’s spirit, and modify it. Abductions do not befit a free government.
In considering the rights of the federal government to deploy agents in a State or city without the consent of its government, two portions of the Constitution come to mind:
“The Congress shall have Power… To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” —Article 1, Section 8.
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” —Article 4, Section 4.
Here the founding intent is less clear. My layman’s view is that Article 1, Section 8 grants the federal government full rights to send its forces, without state or local consent, to enforce federal law and to suppress rebellion. This view was established in the Insurrection Act, which was passed in 1807, within living memory of our Republic’s founding. Article 4, Section 4 of the Constitution describes the Union’s obligations to the States; it therefore renders the federal government duty-bound to respond to unrest in a State if the state government requests aid, but does not expressly prohibit the federal government from doing so if the state government does not request such aid.
The legal questions in relation to the events in Portland are more numerous and complex. I desire only to make the point that federalism in these United States does not entirely preclude the exercise of federal authority when State and local governments do not wish it. Indeed, in the past, that authority has been used for good: federal agents, including Border Patrol officers, were deployed to suppress riots against James Meredith’s admission to the University of Mississippi in 1962.
Today, that same power is being exercised with a more capricious intent. Yet the misuse of it can be checked without challenging the power itself. The Constitution may vest in the federal government the power to deploy forces into the States to execute the laws of the Union, but the States may hold the Union to its laws: by bringing suit, as Oregon has done, against the agencies involved, and so ensuring that their actions are scrutinized in court.
That federal agents have, and ought to have, the legal authority to protect a federal courthouse from attempts at looting and arson is beyond reasonable dispute. The Constitution, as is clear from the passages quoted above, grants no indulgence to lawless violence. If the City of Portland desires federal agents to depart, the best way it may now achieve that end is to show that it will not allow the courthouse to be damaged by those individuals who still reject the dignity of peaceful protest.
This conclusion may seem unfair. The deployment of federal agents provoked more unrest, the city authorities might say, after a period when violence was seemingly declining; why, then, must the city once again take on the unenviable task of defusing it?
Because caprice, like lawlessness and injustice, cannot be overcome with more of the same. It must be countered by responsibility, steadfastness, and duty. The government of Portland is faced with a new opportunity to show that, unlike the present federal administration, it can calm its streets without excess, vindictiveness, or harm to peaceable protesters. It ought to seize that chance, and the city’s residents ought to support their elected government in doing so — thereby showing that they, in demanding justice, are determined to uphold principle.
All citizens of these United States ought to recognize that these events, as with so much else today, are being used in an act of showmanship, and it is in following that act that the greatest danger lies. Though the would-be arsonists in Portland may fancy themselves revolutionaries, they on their own present no formidable rebellion; though Mr. Trump may be a despot at heart, he does not yet — even now — possess the unrestrained power to be one in practice. Lacking the ability to impose their will alone, these actors’ scripts are meant to push Americans to extremism, and thus to their support. Mr. Trump, in particular, has a nervous eye on the coming election.
Their common wish is to make citizens lose faith in the very idea of free and dignified government, and that is where tyranny begins. We must stand firm.