The central question is as old as the Republic itself: What is the limit of federal power?


As citizens of a free state, we anticipate that in extreme circumstances our federal government will provide protection and security and restore the peace, if it is disrupted, preserve it if it is threatened. We often have seen instances of government overreach and overt actions that were both inappropriate and illegal in their execution–Selma, Kent State, Ruby Ridge, Waco all come readily to mind. In those circumstances, though, the perpetrators of government atrocities and abridgment of Civil Rights were clearly badged and clearly identified and clearly a part of a command structure that emanated from some individual who was both responsible and accountable for what happened–although, sadly, in most instances, no repercussions of any dimension followed. I also note that Douglas McCarther came to the notice of the military high command when he led U.S. Army forces, flagged and uniformed, and violently expelled veterans from the Washington D. C. Mall when they were demonstrating for their pension benefits; similar military actions have been launched against recalcitrant enclaves of demonstrators and rioters dating back from Coxey’s Army to the New York Conscription/Race Riots of 1863 to the Whiskey Rebellion. And one mustn’t forget Wounded Knee and then, much later, Alcatraz. But, again, whether the government forces arrayed against the disturbers and threateners of the peace were state militias, regular troops, or civil police forces, possibly augmented by armed and uniformed federal marshals, FBI agents, AFT agents, etc. And, again, in all cases, these official officers or troops, were properly uniformed, properly identified, properly accountable to some individual or command structure that was both recognizable and approachable. 

There are two factors about the recent Portland incidents that are unusual, still. One is that the “officers” or “troopers,” or whatever they are, involved were not clearly badged; they refused to identify themselves, refused to respond to demands even of public officials as to their authority or rights, even, to be where they were or doing what they were doing. Their obvious violation of individual liberties and administration of unwarranted violence against civilians off to one side, they were seemingly operating from an anonymous platform of authority and a vague set of unspecified protocols that were directing their actions and dictating their methods. From a general democratic standpoint, this is in violation of the spirit of the Constitution if not the letter of it. Whether it also violated either or both state and civic statutes is a separate but no less vital question. The truly frightening thing about it is that no official, neither the governor nor the state senators nor any judges or justices had the authority to contravene their actions or hold them accountable for them; no one below the federal level apparently had the authority or right to order them to stand down, withdraw, cease operations, or even to reveal who they were and who they were working for.

Frightening as this is, it is revelatory of a significant flaw in the Constitution. But it is a thorny issue to address. It has to be done surgically not wholesale, for the precedent for federal troop intervention in times of crisis is firmly established and, honestly, honored in the historic record. I evoke the Civil War’s outbreak as a precedent, for the central question in the spring of 1861 was whether or not Abraham Lincoln had the constitutional authority to mobilize the army and force the seceded states to abandon their rebellion and be restored, by dent of arms and arrest, to the Union. The catalytic incident that April, the firing on Ft. Sumpter by a  gathering of presumptive Confederate Army troops was unquestionably a deliberate and provocative act of civil violence against a federal facility; the question Lincoln had to address immediately was whether or not he had the legal right to send federal troops in to protect federal property. Of course, when that did happen, Lincoln sent them in under the United States flag, properly uniformed, openly led and commanded by identified officers; and from the lowliest corporal and seaman all the way up to the Secretary of War and Lincoln himself, accountability was clear.

I back away from the Portland incident a step and ask myself if the public outrage in response to this action would have been the same if the protesters, the rioters, those who were defying curfews and continuing to threaten property and peace had been white supremists, neo-Nazis, KKK, or some similar group of miscreants and malcontents. Would the actions of these troops be seen as righteous expressions of the correct and morally superior if not majority supported point of view? I suspect they well might have been portrayed more sympathetically in the press. But I submit that they would have been no less wrong in the greater context of the actions of a government of a free state.

On the other hand, the point remains that the crux of the matter lies not in what they did or who they did it to but rather in the manner in which they did it, their anonymity, their refusal to communicate either their purpose or their claim of responsibility or their right even to be where they were and doing what they were doing. As one witness stated, “Anybody can buy camo and equipment, automatic rifles and pistols and a fake ‘Police’ badge. How do we know who they are? They could have been white supremists, gangsters. It was kidnapping.” That point is well taken, and it’s the absolute fulcrum on which the entire issue turns.

Comparisons to Nazi Storm Troopers, the SA, specifically, have been made with regard to this event–I have made them myself. But in truth, while there are similarities, there are also important differences that make the analogy incomplete. For one thing, Nazi Party members who formed the street thugs and criminal gangs that were in support of Hitler and his party were not shy about displaying their colors or identifying who they were. They wore the brown shirts, Sam Browne belts, jackboots, caps and helmets and Swastika armbands, flew Swastika flags, and announced their identity openly, both before and after they were officially sanctioned by Hitler’s government in 1933. Their actions were illegal and violated the civil rights of ordinary citizens; and when local officials protested and abhorred the violence they caused, their voices went unheard. Even the civic and state police were helpless in dealing with them.  These camo-uniformed thugs in Portland are not identified, apparently not declaring any specific political agenda–at least not one they’re prepared to announce–and it’s absolutely uncertain to whom they’re answerable, other than to the president himself. That’s not even clear. 

But there is an answer to that question. They are answerable to the people, to the democratic state and a legal process that requires some kind of transparency in the use of federal force in any circumstance or situation. This is a matter for Congress to address, and quickly and efficiently. It is not a partisan issue. It needs to be examined and then corrected so that citizens of a free state can look upon any police force as a benevolent and protective factor, and if this force misbehaves or makes mistakes, that there is someone individual ultimately who is responsible.

This matter must not be cluttered with anecdotal details and individual instances of abuse of power; these are evidentiary, but they are not the central question. The central question is as old as the Republic itself: What is the limit of federal power? Does it extend to the very street and household of every city and citizen? Is it bound by the rules of behavior that cover all law enforcement, military or civil?  Or is it subordinate to local or state authority? Ultimately, this may become a matter for the Supreme Court to settle, or for an Act of Congress to rectify. 

It’s distressing at the moment, but it’s potentially calamitous if it’s not clarified. It might be a simple matter of an authorized demand for exposure and accountability, transparency and openness in tactics; but whatever it is, it needs to be fixed.


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My background is that I am a well-published novelist, essayist, scholar, and literary critic, the author over 1,000 publications ranging from scholarly studies to short fiction and poems, essays, critical reviews and twenty published volumes, including nine novels and a collection of short fiction. I am recently retired after serving as Professor of Arts and Humanities at the University of Texas at Dallas, where I also served as Director of Creative Writing. I hold academic degrees from the University of Texas at Austin, Trinity University, and a PhD from the University of Tulsa. My published novels include The Vigil, Agatite, Franklin's Crossing, Players, Monuments, and The Tentmaker, Ars Poetica: A Post-Modern Parable, Vox Populi: A Novel of Everyday Life, and Threading the Needle; I also have published a collection of essays, Of Snakes and Sex and Playing in the Rain, and a collection of short fiction, Sandhill County Lines. My nonfiction books, authored and edited, include Stage Left: The Development of the American Social Drama, Taking Stock: A Larry McMurtry Casebook, A Hundred Years of Heroes: A Centennial History of the Southwestern Exposition and Livestock Show, Twenty Questions: Answers for the Inquiring Writer, The Plays of Jack London, and Hero of a Hundred Fights: The Western Dime Novels of Ned Buntline. My novels, short fiction, and essays have won numerous regional and national awards, including the Violet Crown Award, which I have has received twice for fiction, and theSpur Award for short fiction as well as the Spur Award for Creative Nonfiction; I was nominated for a Pulitzer Prize for fiction in 1993; I am a National Endowment for the Arts Fellow and is a member of the Texas Institute of Letters.