Oath Keepers, Emergency Powers, & Constitutional Interpretation
So I looked a bit into that “Oath Keepers” organization Truth Excavator keeps mentioning, and came across a page containing, I assume, a decent summation of their ideas regarding the Constitution. While I know their general raison d’etre is to promote adherence to the Constitution generally, my SWAG is that they’d be rather unpleased if the parties they wished to persuade (i.e., law enforcement & military) were based upon plausible theories of constitutional interpretation with which the Oath Keepers themselves disagree. As such, it seems worthwhile to consider what exactly the Oath Keepers mean by “upholding the Constitution.” Presumably, the Oath Keepers proffer their “Declaration of Orders We Will Not Obey” as an example of correct constitutional interpretation. So let’s consider some of the implications of this “Declaration.”
“1. We will NOT obey any order to disarm the American people.”
This would’ve made it rather difficult to suppress the Great Rebellion of 1861-1865 (sometimes known as the “American Civil War”). Kinda hard to fight rebels if you’re not allowed to disarm them. The same would apply to any future armed insurrection occurring on American soil, if said insurrection happened to draw American citizens to its cause.
“2. We will NOT obey any order to conduct warrantless searches of the American people, their homes, vehicles, papers, or effects — such as warrantless house-to house searches for weapons or persons.”
Civil War history isn’t my strong suit, but I wouldn’t be surprised if the Union Army occasionally cleared houses in Confederate territory during their combat operations. I presume that, when dealing w/ any future insurrection, the Oath Keepers would require the military to get court orders prior to entering houses or other domiciles from which they were taking fire.
“3. We will NOT obey any order to detain American citizens as “unlawful enemy combatants” or to subject them to trial by military tribunal.”
In that case, we’d better hope that any future insurrection is a stand-up war like the Civil War, and not a Maoist-style insurgency. Because if it’s the latter, the “combatants” will almost certainly be “unlawful,” since guerrillas inherently violate the laws of war by not wearing uniforms & failing to bearing arms openly. ISTM detaining people we know to be insurgents is part & parcel of competent counterinsurgency.
Of course, I suppose we could simply employ targeted killing instead. We might lose valuable intelligence that way, but at least we’d neutralize some insurgents.
“4. We will NOT obey orders to impose martial law or a “state of emergency” on a state, or to enter with force into a state, without the express consent and invitation of that state’s legislature and governor.”
Another order that would’ve made things difficult on Lincoln & company. Kinda hard to resist state secession backed by armed force, when you’re prohibited from responding in kind. No need for a seceding state to raise an army; simply raise a handful of troops – enough to blow away any intruding FBI, ATF, or the like – and then have its government steadfastly deny permission for US military entry into said state.
“5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty and declares the national government to be in violation of the compact by which that state entered the Union.”
Yet another order that would’ve made things difficult on Lincoln & company. By effectively arrogating final say over constitutional questions to state governments, it would’ve basically rendered secession constitutional.
“6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.”
In that case, we’d better hope we never get hit by a really contagious disease. “[B]lockad[ing] American cities” might, in such a scenario, be necessary IOT prevent said disease from spreading to uninfected areas.
“7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.”
See response to #3. I guess the Oath Keepers would also have disapproved of detaining Confederate POWs during the Civil War.
“8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control” during any emergency, or under any other pretext. We will consider such use of foreign troops against our people to be an invasion and an act of war.”
So let’s say American policymakers got hit with a revelation soon after sending troops to Vietnam, and decided to bring over some British veterans of the Malayan Emergency, to give our troops advice & training on how to conduct a proper counterinsurgency campaign. I guess we would’ve needed to conduct all such training at our overseas military bases?
Or, to directly respond to the Oath Keepers’ implications: Do they really believe that anarchy is preferable to the preference of nasty foreign troops upon sacred American soil?
I assume the Oath Keepers would also have rejected French assistance during the American Revolution; and would’ve opposed Baron von Steuben’s help in retraining of the Continental Army. Ditto the use of such assistance against Loyalist forces had it been necessary.
“9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies, under any emergency pretext whatsoever.”
Most glaringly, #9 would’ve mandated noncooperation with the Emancipation Proclamation. (Sorry to say, slaves really were legally recognized as property prior to at least 1861.) I guess the Oath Keepers also would’ve opposed the First & Second Confiscations Acts during the Civil War. And in the future, any insurgent seeking to rebel against the American government would be well-advised to acquire arms as his personal property, so as to render himself immune from disarmament by Oath-Keeping law-enforcement or troops.
“10. We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.”
This is the only one I can kinda agree with, given my sympathy for Sagan’s notion that “real patriots ask questions.” And while I also realize that in a republic such as ours, public opinion is the center of gravity in pretty much any war, I’m not sure resurrection of seditious libel would be a good way of opposing enemy progress on that front.
[Update: as correctly noted in comments, foreign assistance in military training is irrelevant to #8. I have edited the post to reflect this.]