The Pendulum Swings: The Militia Acts, the Coleman Doctrine, and the Limits of Judicial Power
In times of national unrest or political fracture, the United States has often looked to its founding laws—and to the courts—for clarity. But recent events suggest a shift in how these institutions interpret their own powers, responsibilities, and boundaries. At the heart of this shift lies a renewed reliance on two long-standing principles: the President’s authority to suppress insurrection under laws like the Militia Act of 1795 and the Insurrection Act of 1807, and the Supreme Court’s refusal to resolve so-called “political questions” under what has come to be known as the Coleman Doctrine. These principles, once tools of stability, are now being repurposed in a volatile political landscape. The pendulum of constitutional interpretation is swinging again—this time in favor of executive authority and judicial abstention.
The Militia Act of 1795, passed in the early republic, granted the President power to call out the militia to suppress insurrections or enforce federal law when states were unwilling or unable to act. It was a response to early fears of domestic rebellion, such as the Whiskey Rebellion, and was later expanded by the Insurrection Act of 1807, which remains on the books today. The language of these statutes—broad and contingent—has provided presidents with legal cover for military intervention in domestic affairs. What was once intended to quell armed uprisings has, in modern times, been cited to justify federal action against protesters or resistant state authorities.
This statutory authority is not merely historical. President Donald Trump and his advisers have invoked these precedents to justify or propose the deployment of federal forces—including the National Guard and potentially even the Marines—into American cities, especially during the protests and unrest of 2020. The logic echoes that of 1795: where states fail, the federal government must step in. But the scope and intent of such interventions today are far more ambiguous, raising profound questions about federalism, civil liberties, and executive overreach.
Compounding the concern is the Supreme Court’s increasing reluctance to intervene in these disputes. The Coleman Doctrine, named after the 1939 decision in Coleman v. Miller, holds that certain constitutional issues—especially those related to the amendment process—are “political questions” best left to Congress. But the roots of this doctrine lie deeper, in cases like Luther v. Borden (1849), where the Court refused to decide which of two competing Rhode Island governments was legitimate during the Dorr Rebellion. The reasoning? It was not the role of the judiciary to determine the structure or legitimacy of state governments; that task fell to Congress and the President.
This deference has become a powerful shield for the Court to avoid wading into politically explosive territory. When Trump threatened to invoke the Insurrection Act, the judiciary largely stood aside. When states pushed constitutional boundaries, as with controversial voting laws or challenges to the 2020 election, the Court frequently declined to intervene. Under the banner of judicial restraint, the Court has signaled that some of the most pressing constitutional crises of our time are not its concern.
The result is a troubling dynamic: an empowered executive branch, drawing authority from centuries-old statutes, and a retreating judiciary, invoking doctrines like Coleman to avoid settling fundamental disputes. This dynamic shifts the constitutional balance. The original intent of laws like the Militia Act and the Insurrection Act was to ensure order when all else failed. But without judicial oversight, they risk becoming tools for executive control rather than public stability.
What we are witnessing is not a legal crisis, but a redefining of constitutional roles. The definitions are shifting: from judicial activism to abstention, from congressional leadership to paralysis, from executive enforcement to executive command. As the pendulum swings, the legal justifications remain the same—but the political consequences are radically different.
In this moment, history is not just background—it is precedent. And those precedents are being reinterpreted to fit a very different kind of America. Whether this shift stabilizes or erodes our constitutional system will depend not just on the choices of our leaders, but on the willingness of all branches to remember the purpose—not just the power—of the laws they wield.
Resources: For more about Baker v Carr, the case that drove one justice mad and another to write a famous dissent related to the Coleman Doctrine see
1. Anastasia Boden, The dissent that broke a justice, SCOTUSblog (Jul. 8, 2025, 12:34 PM), https://www.scotusblog.com/2025/07/the-dissent-that-broke-a-justice/
2. Howe, M. D., & Bickel, A. M. (1964). The least dangerous branch: the Supreme Court at the bar of politics. Harvard Law Review, 77(3), 579. https://doi.org/10.2307/1339044
3. https://static.c-span.org/landmarkCases/pdf/Baker_Frankfurter_Dissent.pdf
4. Bickel, A. M. (1986). The least dangerous branch: The Supreme Court at the Bar of Politics. Yale University Press.
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