December 12, 2022
By Matt O’Brien
Both Arizona and Texas have recently claimed that the flow of illegal aliens over the southern border of the United States constitutes an invasion of the type that states may respond to independently under Article I, Section 10 of the United States Constitution. Those assertions have been roundly criticized, and derided as false, by a number of historians, economists, media pundits and other talking heads. There’s only one problem: none of these commentators have any idea what they are talking about.
Article IV, Section 4 of the Constitution plainly states that “[t]he United States… shall protect each [state in this union] against invasion.” This provision is known as the “Invasion Clause.” It imposes an obligation on the federal government to defend the states against what James Madison referred to in The Federalist 43 as “foreign hostility,” as well as the “ambitious or vindictive enterprises of [a state’s] more powerful neighbors.”
Art. I, Sec. 10 states, “No State shall, without the consent of Congress…engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” This provision is known as the “State Self-Defense Clause.” It says that when a state is invaded, or when it is facing imminent invasion, it is free to go to war with the invaders, without asking Congress for permission.
But does an unchecked stream of uninvited aliens spilling over our national boundary constitute an “actual invasion” of the type necessary for states to invoke the right of self-defense? The aforementioned pundits generally say, “No.” But their arguments are based on flimsy claims that the term “invasion” was, at the time the Constitution was drafted, understood by English speakers to refer specifically to conquest-oriented attacks by military forces.
They also rely on equally rickety assertions that illegal aliens can’t be invaders since they merely wish to reside in the United States, not govern it. But the narrative the chattering classes advance is utter hogwash. The true answer is, “Yes, mass influxes of uninvited foreign nationals do, in fact, constitute an invasion for purposes of invoking the State Self-Defense Clause.”
The fact is that while early dictionaries such as Noah Webster’s A Compendious Dictionary of the English Language define “invade” and “invasion” in terms of entrance into another’s domain with hostile intent, they rarely make any reference to such an attack being conducted by military forces. In fact, the earliest edition of Webster’sdefines “hostile” as having multiple meanings, chief among them, “adverse,” which is, in turn, defined as, “contrary, calamitous, unfortunate.”
In modern colloquial English, hostile is used to mean “aggressive” or “violent.” But, as a legal term of art – which is what matters when interpreting provisions of the Constitution – hostile is an adjective that describes parties whose interests are in opposition. As such, most English speakers of the time would have presumed that any action undertaken in violation of the law, or against the interests of the United States, was a manifestation of “hostile” intent.
Accordingly, an invasion can be an incursion by an armed military force. However, it can also be a mass influx of people whose very presence violates U.S. law and undermines the legal order upon which our nation operates. Whether those people wish to take over and govern isn’t the issue, the fact that they have crossed the border without authorization from the U.S. government is the key point.
Moreover, Madison’s references to ambitious or vindictive enterprises in The Federalist 43 indicate he emphatically was not referring solely to armed incursion by military forces. Subversion of a young and relatively weak United States by foreign powers quietly exploiting American vulnerabilities, through the use of soft power, was a common fear among the Founding Fathers.
For example, in his Notes on the State of Virginia Thomas Jefferson expressly noted that mass influxes of immigrants might result in the same type of political volatility associated with foreign attempts to destabilize an opponent via the use of force. He stated, “Suppose 20 millions of republican Americans thrown all of a sudden into France, what would be the condition of that kingdom? If it would be more turbulent, less happy, less strong, we may believe that the addition of half a million of foreigners to our present numbers would produce a similar effect here.”
The State Self-Defense Clause was included in the Constitution to ensure that states were free to protect themselves if the federal government was either unwilling or unable to meet its obligations pursuant to Article IV, Section 4. And the complete breakdown of civil control at the southern border, coupled with the federal government’s refusal to enforce our immigration laws, are exactly the set of circumstances for which the State Self-Defense Clause was intended.
Arguments that there is no invasion because the Mexican Army hasn’t seized the Border Patrol stations at Nogales and Brownsville and publicly declared its intention to take over U.S. territory are beyond absurd.
Matt O’Brien is the director of research at the Immigration Reform Law Institute. Immediately prior to working for IRLI he served as an Immigration Judge. He has nearly 30 years of experience in immigration law and policy, having held numerous positions within the Department of Homeland Security.
Also published at The Washington Times, December 12, 2022.
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