Published Online: Jan 27, 2024
Page range: 1 - 42
DOI: https://doi.org/10.2478/bjals-2023-0014
Keywords
© 2024 Robert G. Natelson et al., published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
Recent events at the southern border of the United States have raised controversy about whether, and to what extent, states may respond without federal cooperation. Central to the controversy are two constitutional questions: (1) Upon ratification of the Constitution, did any state sovereign war powers survive, or was all such authority ceded to the federal government? and (2) if any state war powers did survive, what is their scope?
Thus far, scholarship and Supreme Court jurisprudence have provided no clear answers to those questions. (2) This article tackles them.
Nearly all the leading Founders had been born and raised under the British flag—either in the North American colonies, Britain, Ireland, or (as in the case of Alexander Hamilton) the British Caribbean. Understanding the Constitution they adopted requires some information on the empire they had inhabited.
The island of Great Britain consisted (as it still consists today) of England, Wales, and Scotland. England and Wales had been united for legal purposes in the sixteenth century. The English and Scottish Crowns were conjoined upon the accession of James I in 1603, but England and Scotland remained separate kingdoms, each with its own parliament. Then in 1707, both parliaments passed Acts of Union, thereby creating the Kingdom of Great Britain with a common British Parliament. Within those limitations, Scotland retained its own legal system, as it does today. (3)
After the territorial losses from the American Revolution, the Empire encompassed the following territories: the island of Great Britain along with small nearby islands, Ireland, Canada, much of India, Bermuda, an incipient colony in and near Australia, and valuable Caribbean islands, including the Bahamas, Jamaica, and Trinidad.
Most colonies enjoyed at least some degree of self-governance, but they usually fashioned their institutions from English (rather than Scottish or Irish) models. Some core legal concepts (such as “allegiance,” discussed below in Part IV), were common to the entire empire.
As might be expected, the Constitution’s language and structure were influenced heavily by English jurisprudence.
(4) One subdivision of that jurisprudence was the
To assist in reconstructing the Constitution’s meaning, we draw heavily on the European “law of nations” treatises and on Anglo-American case reports, law dictionaries, digests, and other legal works used by Founding-era lawyers. We also draw on contemporaneous lay dictionaries and other literary sources.
Courts and lawyers typically refer to Article I, Section 10 of the Constitution as the Compact Clause and Article IV, Section 4 as the Guarantee Clause. Our examination, however, focuses only on selected components of those two provisions. To increase precision, we identify the relevant components as follows: The
The Founders’ international law authorities recognized that the term “war” could describe episodes of combat, but for legal purposes they defined it as a continuous state or condition. Hugo Grotius defined war as “the State or Situation of those . . . who Dispute by Force of Arms.” (9) Emer de Vattel described it as “that state in which a nation prosecutes its right by force.” (10) For a state of war to exist, actual fighting was not necessary. (11)
Wars were classified as private, public, or mixed.
(12) A
A war could be offensive and just, offensive and unjust, defensive and just, or—in rare cases—defensive and unjust.
(18) The mark of a
A
Under the law of nations, only a sovereign was privileged to make war or to delegate the power to do so. (26) The sovereign designated the precise officials empowered to begin a war, who might be agents of subordinate units of government. (27) Even without an express authorization, the governor of a political subdivision had implied authority to defend against invaders or insurrectionists. (28) He was not, however, “rashly to carry the War into an Enemy’s Country.” (29)
Initiation of hostilities might be signaled by a declaration of war—sometimes called a “denunciation,” after
A just war empowered the sovereign to undertake nearly all means necessary to accomplish its purpose of preventing or repairing injury or forestalling future injury.
(32) (“Nearly all means” because some, such as assassination and poisoning, were prohibited by the law of war.)
(33) Vattel wrote of defensive conflicts:
The enemy attacking me unjustly, gives me an undoubted right of repelling his violences; and he who opposes me in arms, when I demand only my right, becomes himself the real aggressor by his unjust resistance . . . For if the effects of this force proceed so far as to take away his life, he owes the misfortune to himself; for if by sparing him I should submit to the injury, the good would soon become the prey of the wicked. Hence the right of killing enemies in a just war is derived; when their resistance cannot be suppressed, when they are not to be reduced by milder methods, there is a right of taking away their life . . . . But the very manner by which the right of killing enemies is proved, points out also the limits of this right. On an enemy’s submitting and delivering up his arms, we cannot with justice take away his life.
(34)
Besides killing enemies who refuse to surrender their arms, a belligerent could capture them, (35) hold them for ransom, (36) make reprisals in certain circumstances, (37) execute war criminals, (38) and seize enemy property. (39) The belligerent could seek out enemies in their territory, in its own territory, or in areas belonging to no one. (40) It could prosecute for treason any of its own subjects caught assisting the enemy. (41) The belligerent also could take many defensive measures that are characteristic of war but which by themselves would fall short of (or be incidental to) full-blown hostilities, such as building protective barriers. (42)
Eighteenth century war was often a brutal exercise (43)—far more so than the relatively controlled conduct of both sides during the American Revolution. (44) International law scholars, among others, sought to curb the brutality. (45) Their writings encouraged belligerents to exercise mercy and restraint whenever possible, (46) and to transport and release enemies in safe locations. (47)
These authorities on the law of nations also laid down the rule that a belligerent should not pursue, seize, or kill enemies in a neutral country.
(48) This rule was heavily qualified both in theory and practice. A nation aspiring to neutral status had to “shew [
Founding-era international law identified persons engaged in particularly reprehensible activities outside ties of national allegiance as “enemies of the human race”—
Wars against enemies of the human race were always just.
(61) Enemies of the human race could be attacked wherever they happened to be, even if they had not crossed any international boundary. As Vattel remarked:
[I]f the justice of each nation ought in general to be confined to the punishment of crimes committed in its own territories; we ought to except from this rule, the villains, who by the quality and habitual frequency of their crimes, violate all public security, and declare themselves the enemies of the human race. Poisoners, assassins, and incendiaries by profession, may be exterminated wherever they are seized….
(62)
A nation capturing enemies of the human race had the choice of treating them as prisoners of war or as common criminals. William Blackstone argued for their being treated as criminals rather than as prisoners of war in the first volume of his Commentaries.
(63) In the second volume, however, he implied that civilian-style due process was not required:
As, therefore, he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him; so that every community hath a right by the rule of self-defence, to inflict that punishment upon him which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property.
(64)
Treating captured
The concept of “allegiance” also defined the scope of permissible conduct during war. This subject is addressed in Part IV.
The charters of the North American colonies typically granted them authority to wage defensive war. For example, the 1629 royal charter for Massachusetts Bay colony provided in part:
AND WEE [i.e., the king] DOE further . . . give and graunte to the said Governor and Company, and their Successors, by theis Presents, that it shall and maie be lawfull . . . to incounter, expulse, repell, and resist by Force of Armes, as well by Sea as by Lande, and by all fitting Waies and Meanes whatsoever, all such Person and Persons, as shall at any Tyme hereafter, attempt or enterprise the Destruccon, Invasion, Detriment, or Annoyaunce to the said Plantation or Inhabitants . . .
(65)
When the Declaration of Independence was issued, the thirteen colonies signing the document became states. They thereby assumed as a matter of sovereign right what previously had been a subject of grant. Thus, under both the Articles of Confederation and the Constitution, the source of most
To be sure, the controversial “doctrine of inherent sovereign authority” holds that the states never enjoyed power over military and other foreign affairs subjects, and that the federal government received that authority directly from its congressional predecessors—thereby bypassing the Articles and the Constitution entirely. (69) As one of us recently demonstrated, however, this thesis is fatally flawed on every level: historically, legally, and logically. (70) In this article, therefore, we do not address it further.
As the North Atlantic Treaty was to do 168 years later,
(71) the Articles of Confederation deputized a central authority with certain prerogatives and limited the signatories accordingly. The rules pertaining to war powers were laid out in Articles VI
(72) and IX.
(73) The text of the two articles was somewhat disorganized, but it laid out a coherent scheme in which Congress received general authority to declare and wage war for the Confederation. State war powers were reserved but limited in the following respects:
(74)
Congress could set a maximum on the number of naval vessels states could maintain in time of peace; Congress could, upon review, limit the number of state vessels during a state war against pirates; states could grant commissions to ships and vessels of war and issue letters of marque and reprisal only after a congressional declaration of war and only against the declared enemy; states were required to maintain “a well-regulated and disciplined militia, sufficiently armed and accoutered . . . and constantly . . . ready for use;” a state was not to engage in war unless “actually invaded
(75) by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted.”
The upshot was that the states retained virtually unlimited flexibility to engage in defensive land war—even after Congress had been consulted—except for power to strike preemptively at non-Indian enemies. Their naval scope was more constricted: They could maintain navies to fight congressionally-declared wars. They could issue letters of marque and reprisal only against congressionally-declared enemies. They could maintain fleets and launch them to suppress pirates, although limited by congressional review.
As for other powers related to war, the states retained authority to limit foreign immigration, impose embargoes, and suspend the writ of habeas corpus. However, state treaties and alliances were subject to congressional review, and state imposts and duties had to be consistent with congressional treaties. (76)
Founding-era international law scholars acknowledged each nation’s prerogative of dividing war powers among different administrative levels. (77) The Constitution divided war powers between the federal government and the states by granting authority to the federal government and limiting the reserved authority of the states.
The Protection From Invasion Clause and the Domestic Violence Clause imposed duties on the federal government to wage defensive war under certain circumstances: “The United States . . . shall protect each [state] . . . against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” (78) The mandates were addressed to the United States government as a whole rather than solely to any branch. (79)
The Take Care Clause (80) similarly mandated the President to “take Care that the Laws be faithfully executed.” This was another authorization to wage defensive war.
In addition, the Define and Punish Clause deputized Congress to “define and punish Piracies and Felonies committed on the High Seas.” (81) This permitted “mixed wars” against pirates and any other nautical “enemies of the human race.” Finally, the Constitution granted Congress power to “declare War.” (82) This enabled Congress to fight both defensive and offensive wars, both public and mixed (83)—although declarations of war were associated primarily with offensive rather than defensive operations.
Other enumerated powers granted Congress the “grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”
(84) “raise and support Armies”
(85) and “provide and maintain a Navy;”
(86) “make Rules for the Government and Regulation of the land and naval Forces;”
(87) “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”
(88) “provide for organizing, arming, and disciplining, the Militia,
(89) and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
In addition, the Constitution granted Congress and the President certain powers wholly or partly associated with war. Specifically, the Constitution—
conferred on the President, with the advice and consent of the Senate, sole authority to make treaties;
(90) designated the President as “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;”
(91) implicitly granted Congress, as a traditional incident of war-making, the prerogative of suspending the “Privilege of the Writ of Habeas Corpus . . . when in cases of Rebellion or Invasion the public Safety may require it,”
(92) thus authorizing suspension during certain defensive, but not offensive, operations; granted Congress authority to “regulate Commerce with foreign Nations,”
(93) which enabled it to override certain state measures related to war, such as embargos and other trade restrictions
(94) and those governing commercial immigration, including the slave trade;
(95) and granted Congress power to “define and punish . . . Offenses against the Law of Nations.”
(96) This provision permitted Congress to enact statutes protecting diplomats, fixing protocols of international practice, and restricting non-commercial immigration and emigration.
(97) Of course, this clause, like other grants in the Constitution, carried with it incidental powers, recognized under the Necessary and Proper Clause.
(98)
To the extent the Constitution did not qualify them, war powers remained in the states by reservation.
(99) The ratifiers understood this, as demonstrated by the proceedings of the Virginia ratifying convention. At one point, the discussion turned to the Constitution’s grant of power to Congress to
provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
(100)
The Constitution’s opponents objected that this clause gave Congress exclusive power over state militias. But the Constitution’s advocates pointed out that the opponents were overlooking state reserved powers. The future Chief Justice John Marshall explained:
The State Legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away …. All the restraints intended to be laid on the State Governments (besides where an exclusive power is expressly given to Congress) are contained in the tenth section, of the first article. This power is not included in the restrictions in that section.—But what excludes every possibility of doubt, is the last part of it.—That “no State shall engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” When invaded, they can engage in war; as also when in imminent danger. This clearly proves, that the States can use the militia when they find it necessary.
(101)
Marshall’s analysis was reinforced by James Madison (102) and Edmund Pendleton, the convention chairman. (103) George Nicholas also affirmed that the states, “are at liberty to engage in war when invaded, or in imminent danger.” (104) The popular Federalist essayist Tench Coxe made the same point in the public press: “Any state may repel invasions or commence a war under emergent circumstances, without waiting for the consent of Congress.” (105)
The Constitution limited and qualified reserved state war powers in several respects. The result was a balance between federal and state prerogatives roughly similar to that under the Articles of Confederation. But in one way the Constitution constricted the states’ war powers further, and in four ways it actually
The Articles had permitted states to maintain naval vessels in peacetime up to a congressionally-prescribed maximum. The Constitution provided, “No State shall, without the Consent of Congress . . . keep . . . Ships of War in time of Peace.” (106) Since the Articles gave Congress authority to fix the peacetime maximum at “zero,” the substantive effects of the two restrictions were the same.
The states’ sole loss of war power was on the naval side. This was the Constitution’s removal of their prerogative to issue letters of marque or reprisal against an enemy upon whom Congress had declared war. (107)
The increases in state war powers were as follows: First, the Constitution did not require a congressional declaration of war for states to build ships. It required only war de facto, with no requirement that the war be one waged by the federal government. Second, the Constitution deprived Congress of its veto over state naval actions against invading pirates.
Third, on the land side, the Constitution preserved general state control over their militias while providing that “No State shall, without the Consent of Congress . . . keep Troops . . . in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” (108) This limitation omitted the Articles’ contingent requirement of consultation with Congress. (109)
Fourth, while the Articles had permitted state preemptive strikes against imminent invasions by Indians only, the Constitution permitted them against all invasions.
The states also retained unmentioned prerogatives sometimes associated with war. As participants in the ratification debates observed, states would continue to have power to suspend the writ of habeas corpus. (110) In addition, the Constitution implicitly recognized that states could continue to control foreign immigration, subject to some federal preemption before 1808 and more extensive preemption thereafter. (111) The Constitution retained state power to impose embargoes, although subject to federal preemption. (112)
Some readers may find the conclusion that the states retained significant military authority to be counterintuitive. In part, this may be due to the fact that the states rarely exercise such authority today. In part, also, it may be due to the general conception of the Constitution as uniformly increasing central power.
The truth, however, is more complicated. In negotiating the constitutional re-arrangement, the states sometimes gained as well as lost, and military affairs may not be the only case of this happening. (113) Furthermore, we should not overestimate the extent to which the Constitution increased central power. During the ratification debates, Justice Nathaniel Peaslee Sargent of the Massachusetts Supreme Judicial Court observed that the Constitution conveyed “[v]ery few” more powers than the Articles of Confederation. (114) The more significant difference between the two documents was that, within its sphere, the new federal establishment was a genuine government, rooted in popular consent and able to enforce its power directly on the people. It was not a mere treaty among state legislatures, as the Confederation had been.
Additionally, curbing state prerogatives and strengthening the central power were not the only reasons for the Constitution. The Founders also sought to protect the states, to prevent them from degenerating into monarchy or anarchy, and to improve the quality of their governance. All these policies are evident in the first sentence of Article IV, Section 4. (115)
The words
During the eighteenth century, “invasion” and its variants in their broadest sense could include infringements or attacks on rights and privileges—as in the phrase, “The censorship policy was an invasion of the right of free speech.” (120) The context of the words in the Constitution itself, however, demonstrates that their constitutional meaning is less metaphorical and more concrete: “Invasion” is an incursion into home territory by outsiders.
But what kind of incursion? Is the meaning limited to intrusion by a foreign army? Several Court of Appeals opinions have said as much, but on very sparse evidence. (121) Or is the meaning wider? And if wider, how is it circumscribed?
Eighteenth-century dictionaries inform us that when “invasion” and its variants applied to physical intrusions, the scope was not limited to incursions by a foreign army. Among the thirteen Founding-era English dictionaries we examined, only one seemed to limit “invasion” and its variants to formal military operations. (122) The other twelve included formal military operations, to be sure; but they also added definitions comprehending many other kinds of encroachments and intrusions. These definitions appear in the footnote below. (123)
The reader may observe that some of these definitions required that an invasion be “hostile.” For that reason, we included in footnote 125 the entry for “hostile” from each dictionary employing that word when defining “invasion” or its variants. As those entries show, “hostile” often meant merely “adverse.” Readers may recognize this as the non-military definition preserved in the modern law of adverse possession and in legal phrases such as “hostile takeover” and “hostile witness.” Thus, all we can infer from the requirement of “hostility” is that for an entry to be an invasion it must be unauthorized and uninvited.
Eighteenth-century American political discourse confirms what the dictionaries suggest: the scope of “invasion” and its variants was quite broad.
First: An invasion could be by sea as well as by land. Both the congressional records (124) and participants in the constitutional debates referred to maritime invasions. (125)
Second: An invasion need not be incident to actual warfare, nor an operation of war. The Massachusetts Constitution of 1780, for example, spoke of “time of war
Third: An invasion need not be launched by a formal military force. Participants in the constitutional debates referred to “invasions of barbarous tribes,”
(127) “invasion of the savages,”
(128) and “hostile invasions of lawless and ambitious men intending . . . to . . . introduce anarchy, confusion, and every disorder.”
(129) In
An “invasion” could refer also to uninvited entry by groups of immigrants.
(132) Pennsylvanians used that term to describe the essentially peaceful immigration of Connecticut settlers into Pennsylvania’s Wyoming Valley, because the settlers were relying on legal title that the Pennsylvania government did not recognize.
(133) Thus, in 1754, Benjamin Franklin wrote a plan “to divert the Connecticut Emigrants from their Design of
In 1775, Congress recommended that Connecticut stop sending settlers until further notice.
(137) When, in 1783, the Confederation Congress established a court to adjudicate Wyoming Valley land claims,
(138) the Pennsylvania legislature responded in resolutions again charging that the unauthorized Connecticut immigration was an invasion:
[I]f Congress should consent to establish courts at the instance of persons not first proving themselves to be included in the description aforesaid, the citizens of this State may be harassed by a multitude of pretended claims
The Constitution did not limit invasions to large-scale incursions—an aspect of the document specifically criticized during the ratification debates.
(140) Perhaps the framers agreed with Sir William Yonge’s comment in Parliament that “a small Invasion may be as fatal in its Consequences as the most formidable and most successful Invasion at another Time.”
(141) The passage of time seems to have confirmed the judgment that an intrusion may be small and still be classified as an invasion: In the 1942 case of
Nor would it seem that “invaders” had to be armed when crossing the border. Even unarmed persons can cause local disruption, and once they cross the border they may acquire arms and defend their position (144) or cause other damage. By way of illustration, the terrorists of September 11, 2001 arrived unarmed, exceeded the scope of their visas, and hijacked three aircraft on U.S. territory and used them to kill thousands of Americans. Under the Constitution’s definition, they qualify as “invaders.”
In Federalist No. 43, Madison justified the broad meaning of “invasion” when discussing the Constitution’s Protection From Invasion Clause: “The latitude of the expression here used, seems to secure each state not only against foreign hostility, but against ambitious or vindictive enterprizes [
There were some limiting factors, however. “Invasion” and its variants did not comprehend all unauthorized intrusions. There had to be detriment (loss, harm, or annoyance) beyond the mere fact of intrusion. Franklin’s letter referred to the “injurious” consequences of the unauthorized immigration into his state. (146) The Pennsylvania legislature felt “harassed” by the unauthorized immigrants. Invasion that had not yet occurred but was imminent posed some “danger” (147)—risk of detriment (148)—against which “defense” was required.
The actual or threatened detriment from invasion could be injury to persons; (149) physical damage, (150) such as that resulting from plundering; (151) or the breakdown of normal processes of law (152) and communication. (153) During the Connecticut invasion of the Wyoming Valley, Pennsylvania president John Dickinson—later one of the Constitution’s more important framers (154)—identified another kind of detriment: the Connecticut settlers were occupying land the state otherwise could sell to raise revenue. (155)
Did an incursion have to be organized to qualify as an invasion? We found no evidence that prior coordination was necessary. A spontaneous mob might launch an invasion. On the other hand, prior coordination might demonstrate the existence of detriment or quantify the extent of the risk. Coordination also might demonstrate causation—i.e., that the intrusion was responsible for specified injury.
Relying on the premise that no government in the United States has authority to restrict peaceful immigration, some may exclude non-violent mass immigration from the definition of “invasion.” (156) One problem with this conclusion lies in its premise. It overlooks the Constitution’ explicit recognition that individual states may restrict immigration. (157) It also overlooks the Constitution’s grant to Congress of authority to “define and punish . . . Offenses against the Law of Nations,” (158) which encompasses authority over trans-border migration. (159)
Professor Ilya Somin is among the few who deny any federal authority to restrain peaceful immigration from nations with which the United States is not at war. He relies
(160) largely on James Madison’s 1800 Virginia legislative report on the Alien and Sedition Acts.
(161) However, this document is not useful evidence on the question of whether the Constitution grants Congress authority to restrict immigration. For one thing, it focused not on immigration, but on
Nor does the substance of the document provide any evidence on whether Congress has power to restrict immigration.
Madison argued that the Constitution gave Congress no authority to deport “alien friends,” and he classified them as such because they had come from countries with which the United States was at peace.
(163) But he did not address the fact (because there was no need to) that not all foreigners from friendly countries qualified as alien friends. As explained in Part IV, an alien friend was a person in
In sum: the modern judicial decisions limiting the term “invasion” only to attacks by an outside sovereignty are clearly erroneous and should not be followed. Rather, as the Constitution employs the words “invasion” and “invaded,” those words denote an unauthorized and uninvited intrusion of any size across a border—including significant unauthorized immigration—where the intrusion causes, or threatens to cause, detriment beyond the fact of the intrusion itself. An invasion need not be armed or even formally organized, although organization does tend to show a link between the intrusion and potential or actual detriment.
The previous discussion has led us to the subject of
The location in which an individual was physically present was one factor in determining the sovereign to whom he or she owed allegiance. Other factors included birthplace, parental allegiance, and individual conduct and intent. In Edward Coke’s report on
As understood when the Constitution was written, allegiance (or
A person in allegiance to a monarch was a
English law recognized four kinds of British subjects: natural born subjects, naturalized subjects, denizens, and resident alien friends. We shall discuss each of these briefly in turn.
The
A natural born subject usually was an individual born within the Empire
(174) of parents then in allegiance to the Crown.
(175) But the requirement of birth within the Empire was waived if the father was natural born and not engaged in disloyal activity.
(176) Thus, if the father and mother were of different nationalities, in allegiance cases the English courts generally followed the doctrine
Not everyone born within British dominions was natural born. The child born in London of a foreign ambassador’s wife was not a natural born Englishman, because his father’s allegiance was solely to his homeland. (178) Likewise, the child of a foreign invader born on British territory was not natural born: His parent’s act of invasion rebutted any inference of allegiance to the British Crown. (179) More generally, no alien could enter into any sort of allegiance to the British Crown unless “received” into the country. (180)
Natural born subjects enjoyed unique privileges, such as qualification to serve in national office (181) and unfettered power to own land. (182)
The second class of subjects were
The third class of subjects were A DENIZEN is an alien born, but who has obtained
As in the case of naturalized subjects, the denizen’s promise of obedience was express. His or her children born on British territory were natural born.
The fourth class of subjects consisted of
An alien (Latin:
If a resident alien friend betrayed the duty of allegiance seriously enough, he or she could be convicted of treason. (194) An alien enemy could not be. (195) Moreover, any alien, whether an alien friend or an alien enemy, was “liable to be sent home whenever the king sees occasion.” (196)
The two classes of subjects known as denizens and resident alien friends approximately corresponded to the two species Vattel referred to in the wider genus he called “inhabitants:”
The inhabitants, as distinguished from citizens, are strangers, who are permitted to settle and stay in the country [
Perhaps the most famous English case involving a resident alien friend was
An alien was a friend if not classified as an enemy. (199) The presumptive definition of an alien enemy was a foreigner from a country at war with Britain. (200) However, this definition was presumptive only. Circumstances, including the alien’s own conduct, could designate a foreigner as an alien friend or an alien enemy.
Suppose, for example, that a Dutch merchant resided and did business in London during a time of peace between Britain and the Netherlands. This merchant conducted himself according to English law and was classified as an alien friend. Suppose further that war then broke out between Britain and the Netherlands. According to international norms, (201) the merchant was permitted to remain for a while to wrap up his affairs before departing. Parliament fixed the period for Britain at 40 days, extendable to 80. (202) During that time the Dutch merchant remained, or at least was treated as, (203) an alien friend. By the time of the American Founding, this courtesy was extended to all foreigners, not just merchants. (204)
In wartime, resident aliens could petition (either explicitly or implicitly) to remain in Britain indefinitely, promising to obey local law and do nothing contrary to British interests. This was an affirmation of allegiance. If the authorities acquiesced, the alien could remain as long as he conducted himself properly. (205) But if he betrayed that trust and violated his obligation of allegiance to the British Crown, the authorities could opt to treat him either as a traitor who could be tried under municipal law (206) or as an alien enemy who could be tried and punished under martial law. (207)
It worked the other way, too: a person from a friendly country could be an alien enemy. If a foreigner participated in an invasion of British territory, this negated any implication of allegiance to the British Crown. The invader was an alien enemy and subject to martial law, even though his home country was in amity with England.
(208) For example, as the
The facts in If the States [i.e., the Netherlands] be in alliance, and the French at war with us, and certain Dutchmen turn rebels to the States, and fight under command of the French King, they are
The Supreme Court cited
The wider principle was, as Vattel stated it, “Whoever offends the state, injures its rights, disturbs its tranquility, or does it a prejudice in any manner whatsoever, declares himself its enemy, and puts himself in a situation to be justly punished for it.”
(214) In another passage, Vattel clarified the terms on which one entering a country was to be treated as an alien friend:
Since the lord of the territory may forbid its being entered when he thinks proper, he has, doubtless, a power to make the conditions on which he will admit of it . . . . But, even in those countries which every stranger freely enters, the sovereign is supposed to allow him access, only upon this tacit condition, that he be subject to the laws . . . The public safety, the rights of the nation, and of the prince, necessarily require this condition; and the stranger tacitly submits to it, as soon as he enters the country, as he cannot presume on having access upon any other footing. The empire has the right of command in the whole country, and the laws are not confined to regulating the conduct of the citizens among themselves; but they determine what ought to be observed by all orders of people throughout the whole extent of the state.
(215)
We have seen that reserved state power to wage defensive military action is triggered by insurrection, actual or threatened invasion, or challenges from transnational criminal organizations of the kind the founding generation referred to as “enemies of the human race.” The discussion below assumes state policy makers have reached a determination that one of these triggers has been pressed.
Except in cases of actual civil war, official response to insurrection is generally a matter for the police power rather than the war power. Even during civil war, the punishment of insurrectionists is likely to be handled through the civilian criminal justice system, including the prosecution of civil crimes such as treason and sedition.
To the extent permitted by a state constitution, officials may suspend the writ of habeas corpus or declare martial law, (216) so long as they do not dispense entirely with the due process guarantee of the Fourteenth Amendment. (217) If the circumstances call for it, they also may request that Congress suspend the writ. They may restrict immigration to the extent that doing so does not conflict with federal law. Obviously, they may employ other devices common in wartime, such as curfews and roadblocks.
Under the Domestic Violence Clause, the state legislature may, by due notice (“Application”) compel the federal government to suppress “domestic Violence.” (218) A state resolution to that effect probably does not need the signature of the governor, because an application to Congress is not an act of lawmaking. (219) If the state legislature cannot be convened, then the governor may issue the application. (220)
The Constitution’s Self-Defense Clause specifically recognizes the reserved state power to wage defensive war against invaders. (221) As documented above, (222) the Constitution’s definition of “invasion” is quite broad: It is not, as some courts have opined, (223) limited to military attack from another sovereignty. An incursion qualifies as an invasion if it is unauthorized and uninvited and causes or threatens detriment beyond the mere fact of crossing. (224)
If a state is invaded, the Protection From Invasion Clause requires the federal government to protect that state. However, a state’s ability to respond to the invasion does not depend on federal compliance with the Protection From Invasion Clause. The state may react with the full panoply of measures traditionally associated with defensive war—that is, with all means necessary to repel the invasion, (225) while avoiding excessive means. (226)
Thus, under the Constitution, a state facing an imminent or actual invasion may issue warnings against further invasion and erect barriers at the border. (227) It may conscript and otherwise raise troops and ships beyond its militia and National Guard establishments. (228) It may deploy those troops in all ways traditionally characteristic of defensive war, other than by issuing letters of marque and reprisal. (229) It may create internal checkpoints, fight the invaders within the state, repel them at the border, or return them whence they came. In the course of military operations, state armed forces may capture invading combatants and seize their property, or kill them if they refuse to surrender their arms. (230) The state may launch preemptive attacks and, under some circumstances, make forays into a neighboring sovereignty (including one claiming to be neutral) if that sovereignty is guilty of harboring the enemy. (231) As in cases of insurrection, the state may, consistently with its constitution, suspend the writ of habeas corpus and, of course, may ask Congress to do so as well. (232)
Typically, invaders are not in allegiance to the state before the invasion. Rather, they are alien enemies or persons the state lawfully can treat as such. This renders them subject to rules different from those applied to insurrectionists. (233) Generally speaking, the state must treat captured combatants as honorable prisoners of war, unless found guilty of war crimes or qualifying as “enemies of the human race.” (234)
In some cases, state policy makers may determine that international criminal organizations qualifying as
There are clear limits on the power of states to wage defensive war, even when faced with insurrection or invasion. Federal statutes or treaties may override state efforts to restrict immigration or the free flow of goods. (236) The Fourteenth Amendment prohibits dispensing with due process or equal protection of the laws, although both concepts are malleable enough to take wartime exigencies into consideration. (237) Congressional approval is necessary for mutual agreements with other states, military or otherwise, (238) although such approval can be implied. (239)
More difficult is the question of the extent to which federal execution of incidental powers, such as statutes enacted under the Necessary and Proper Clause, (240) may impair further the ability of states to wage defensive war.
There are several relevant Supreme Court cases.
Finally,
Several Supreme Court cases have determined that the “republican Form” mandate in Article IV, Section 4 is committed to the political branches of the federal government, and, therefore, “republican Form” cases are not justiciable. (248) Without much analysis, some lower courts have extended this rule to the Protection From Invasion Clause (249) and to other aspects of reserved state territorial integrity. (250)
Detailed examination of modern justiciability issues is beyond the scope of this article. Several observations may, however, assist in framing future discussion.
First: the Supreme Court’s reasons for rendering “republican Form” cases non-justiciable are based on considerations unique to that portion of Article IV, Section 4. These considerations involve matters of definition (“When is a government republican?”) and matters of practicality (“What is the retroactive and prospective legal effect of declaring a government “non-republican?”). (251) Those considerations are of limited relevance to invasion cases, because the definitional doubt is smaller, and the meaning of “invasion” can be determined by a state government having authority to do so.
Second: the courts’ opinions holding “invasion” cases to be non-justiciable also displayed the belief that the constitutional term “invasion” refers only to a military attack from a foreign government. (252) Because such an attack was not a feature of those cases, it was easier to dismiss them as non-justiciable. As demonstrated above, however, (253) that belief is clearly erroneous.
Third: The consequences from failing to enforce the insurrection and invasion mandates may be far more severe than those arising from failing to enforce the “republican Form” mandate. If Texas or Montana decided to enthrone a king, the Union could continue with all 50 states intact. Failure to protect a state against insurrection or invasion could sever or topple the Union itself. (254)
Fourth: Judicial failure to enforce the federal duty to protect states from insurrection or invasion would convert a clear constitutional requirement into a mere suggestion that federal politicians could ignore at will. This, in turn, would undercut a central reason the Constitution was adopted: to “provide for the common Defence.” (255)
Treating insurrection and invasion as non-justiciable has implications beyond the scope of the federal duty to protect. It also has implications for the extent of state war powers. After all, “Insurrection” and “invasion” not only trigger the federal government’s duty under the Protection From Invasion Clause, but also trigger exercise of state war powers. If the terms are too vague for courts to define for federal purposes, then they also are too vague for courts to define for state purposes. If Protection From Invasion Clause cases are held to be non-justiciable because the Constitution commits the decision of whether and how to protect states against invasion to the political branches of the federal government, then the Constitution even more clearly commits (as demonstrated by the Self-Defense Clause) the determination of whether a state has been “Invaded” or in “imminent Danger” to the state government. If redressibility issues impede justiciability in Protection From Invasion Clause cases, then they could also impede justiciability when a state has gone onto a war footing and raised an army.
To be clear: If federal officials are proceeding in good faith to crush an insurrection or repel an invasion, the courts should not second-guess their tactics. (256) But judicial intervention is appropriate when federal officials utterly neglect their duty or adopt measures so plainly insufficient as to demonstrate a lack of good faith effort.
Like the issue of justiciability, the choice of remedies against recalcitrant officials is best left to another day. We might suggest, however, that where mandamus, declaratory judgments, or injunctions are not practical, monetary damages might well be. Damages could, for example, fund or reimburse state expenses incurred in addressing the problem without federal assistance.
Before ratification of the Constitution, the fourteen North American states were the ultimate repository of the power to wage war, although all but Vermont had entered a treaty (the Articles of Confederation) pooling some of their war powers. While the Articles lasted, most war-making authority—including exclusive authority to wage offensive war—was lodged in the Confederation Congress. The states were required to maintain militias, enjoyed wide flexibility to wage defensive land war, and retained more limited flexibility to wage defensive naval war.
Under the Articles, the states also reserved the prerogative, with congressional approval, of entering treaties, and they could levy exactions on imports not inconsistent with congressional treaties. They reserved almost untrammeled authority in certain areas related to war, such as immigration and the writ of habeas corpus.
The Constitution re-arranged this scheme. The new central government received exclusive power to wage offensive war, symbolized by the grant of an enumerated power to Congress to declare war. The federal government also received the exclusive right to enter treaties and alliances and issue letters of marque and reprisal. The states retained their militias, although subject to federalization for limited and enumerated purposes. States were freed of some of the Articles’ restrictions on their flexibility in waging defensive war.
The federal government also obtained the prerogative of suspending habeas corpus in certain circumstances. States retained that prerogative as well. States kept the power to restrict immigration and regulate foreign trade, but their laws on these matters were largely subject to congressional preemption. (257)
The Constitution imposed certain war-related obligations on the federal government. The federal government was charged with defending the states against invasion and, upon state request, with suppressing insurrection.
The states reserved the sovereign’s prerogative of engaging in defensive military action. That authority is triggered by insurrection, by actual or imminent invasion, or by attacks from “enemies of the human race”—that is, by transnational criminal gangs. The Founders envisioned insurrectionaries being treated as criminals who have betrayed their legal obligation of allegiance to the state, “invaders” as alien enemies, and international criminals being treated either way, at the option of the state.
The constitutional term “invasion” denotes an unauthorized and uninvited intrusion of any size across a border, where the intrusion causes, or threatens to cause, detriment beyond the fact of the intrusion itself. It includes illegal immigration of a kind, magnitude, or degree of organization that may inflict harm.
State warmaking authority is at its apex in the case of invasion, against which the states have reserved full defensive land war powers. Of course, a state may opt not to exercise the full scope of its war powers, and any actions it undertakes are subject to the law of war.
Finally, the Constitution’s reservation of defensive war power to the states encompasses all procedures customary during the Founding era for fighting defensive war except those, such as letters of marque and reprisal, specifically interdicted by the Constitution. These procedures are constrained only by necessity, the law of war, and specific constitutional provisions (such as the ban on state letters of marque and reprisal). They include, when necessary, preemptive and even cross-border attacks.
State resort to their war powers does not depend on federal assistance or federal permission, and federal measures adopted as incidents to enumerated powers—including legislation adopted to enforce treaties—may not destroy or unreasonably burden the ability of a state to defend itself. (258)
Bibliographical Footnote: This note collects secondary sources employed more than once in this article. For multiple-edition works available to the Founders, we usually cite the latest accessible edition issued before the 1787–1790 ratification debates.
M
N
T
T
T
H
M
S
J
J
A
Robert G. Natelson,
S
S
T
E
One of the few, and perhaps the only, law journal article dedicated to state war powers is a student comment: Heather Dwyer,
Scotland recovered its own parliament in 1999.
Robert G. Natelson,
U.S. C
U.S. C
U.S. C
1 G
2 V
1 G
1 G
Grotius recognized even combats among single individuals as “war.” 1 G
2 V
1 G
2 V
The Causes of just War may be reduc’d to these three Heads: First, To defend ourselves and Properties against others that design to do us Harm, either by assaulting our Persons, or taking away or ruining our Estates. Secondly, To assert our Rights when others, who are justly obliged, refuse to pay them to us. And lastly, To recover Satisfaction for Damages we have injuriously sustained, and to force the Person that did the Injury, to give Caution [security] for his good Behaviour for the future.
P
1 V
1 V
3
2 V
1 G
P
2 V
P
2 V For when the end is lawful, he who has a right to prosecute this end is warranted in the use of all necessary means to attain it . . . On a declaration of war, therefore, this nation has a right of doing against the enemy whatever is necessary to this justifiable end of bringing him to reason, and obtaining justice and security from him.
2 V
3 G
3 G
P
Dennis Showalter,
J
David B. Kopel, Paul Gallant & Joanne D. Eisen,
P
2 V
3 G
2 V
1 V
2 V
The concept of “enemy of the human race” appears in a 358 C.E. decree of the Roman Emperor Constantius II. The Empire’s rulers were then Christian, and they disapproved of magicians:
B
3 G
1 V
2
1 W
Richard J. Samuels,
2 G
1 V
1 W
2 W
M [W]e . . . do give power . . . to levy, muster and train all sorts of men, of what condition or wheresoever born, in the said province for the time being, and to make war and pursue the enemies aforesaid, as well by sea as by land, yea, even without the limits of the said province, and by God’s assistance to vanquish and take them, and being taken to put them to death by the law of war, or to save them at their pleasure; and to do all and every other thing, which unto the charge of a captain general of an army belongeth, or hath accustomed to belong, as fully and freely as any captain general of an army hath or ever had the same.
Although several charters authorized the grantees to oppose anyone seeking their “destruction, invasion, detriment, or annoyance,” we caution against inferring from the canon
“Most” because the Constitution does grant a few specific powers to the states. Robert G. Natelson,
U.S. C
The leading statement of this doctrine appears in United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936).
Robert G. Natelson,
The North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243,
Article VI of the Articles of Confederation provided:
No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility. No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue. No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain. No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage. No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the Kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by
A
Article IX stated in relevant part: “The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article….”
U.S. C
One of us (Natelson) believes the Guarantee Clause (U.S. C
U.S. C
U.S. C
U.S. C
The Militia Organization and Calling Forth Clauses had time frames different from the Guarantee Clause, U.S. C
The Guarantee Clause, on the other hand, referred to the power and duty to
U.S. C
U.S. C
Robert G. Natelson,
U.S. C
On the scope of incidental powers generally,
2 F
U.S. C
Debates of the Virginia Convention (Jun. 16, 1788)
Debates of the Virginia Convention (Jun. 16, 1788)
“A Freeman II” (Tench Coxe), P
U.S. C
Earlier drafts of the Constitution retained the consultation language, but for unspecified reasons it was dropped two days before adjournment. 2 F
Debates of the Massachusetts Convention (Jan. 26, 1788)
U.S. C
2 F Mr. Madison moved to insert after the word “reprisal” (art. XII) the words “nor lay embargoes”. He urged that such acts <by the States> would be unnecessary—impolitic—& unjust— Mr. Sherman thought the States ought to retain this power in order to prevent suffering & injury to their poor. Col: Mason thought the amendment would be not only improper but dangerous, as the Genl. Legislature would not sit constantly and therefore could not interpose at the necessary moments—He enforced his objection by appealing to the necessity of sudden embargoes during the war, to prevent exports, particularly in the case of a blockade— Mr Govr. Morris considered the provision as unnecessary; the power of regulating trade between State & State, already vested in the Genl—Legislature, being sufficient.
Arguably Indian affairs was another area. Under the Articles of Confederation, Congress enjoyed plenary authority over Indians outside state boundaries. Under the Constitution, Congress’s authority was limited to the scope of its enumerated powers. Robert G. Natelson,
Letter from Nathaniel Peaslee Sargent to Joseph Badger (1788) (exact date uncertain),
U.S. C
U.S. C
In Perpich v. Dept. of Defense, 496 U.S. 334 (1990), the Supreme Court held that the National Guard can be federalized also through the congressional power to “raise and support armies,” U.S. C
This construction is reinforced by the modern non-commandeering doctrine and by comments from advocates of the Constitution during the ratification debates.
In any event, during a defensive war the state still may raise “Troops” other than its militia. U.S. C
U.S. C
California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997); Padavan v. United States, 83 F.3d 23, 28 (2d Cir. 1996); New Jersey v. United States, 91 F.3d 463, 468 (3d Cir. 1996) (all interpreting “invasion” as limited to an incursion by a foreign army).
T to come violently, illegally, unfairly, or unjustly, into the lands, possessions, or country of another; and is commonly understood of the army of one nation coming suddenly and unprovoked into another’s kingdome [sic] or country, and keeping possession of all or part thereof by violence, or driving away the cattle, making prisoners of the people, or doing other acts of hostility.
The same source defined “invasion” as “the violent, sudden, and illegal entering of an army, &c. into another’s country and keeping possession, or committing hostilities.”
All of the following dictionaries are unpaginated, and are listed alphabetically according to the authors’ last names.
F to enter into a country in a warlike manner; to attack; to assail or assault; to seize on like an enemy . . . . one who enters into the possessions or dominions of another; one who assails or attacks; one who encroaches or intrudes . . . . to invade the right and property of another . . . . to come in without invitation or permission; to trust one’s self rudely into company or business; to undertake a thing without being permitted, called to it, or qualified for it.
J To enter with hostile intentions, to attack a country, to assault, to assail, to encroach on another’s right or property . . . . An hostile entrance, an assault, the attack of an epidemical disease . . . . To make invasion on the right of another, to advance gradually and by stealth on the property or right of another; Suitable to an enemy, warlike, adverse, opposite.
B to attack or set upon . . . usurpation. to intrench upon, to make invasion on the right of another.”
F to enter into a country in a warlike manner. To attack; to assail, or assault. To make the first attack. To seize on like and enemy. To encroach . . . . one who enters into the possessions of another and attacks them as an enemy. One who assails or attacks. One who encroaches . . . . the entrance or attack of an enemy on the dominions of another. The act of entering and attacking the possessions of another as an enemy. An incroachment. The attack of an epidemical disease . . . . in Law an unlawful trespass upon a man’s grounds. Extortion, or the insisting upon the payment of more than is due . . . . “to invade the property of another. To advance by stealth to that which a person has no right to. To come upon or seize the territories of another.”
J
E
A to attack a country; to make a hostile entrance. To attack; to assail; to assault . . . . one who enters with hostility into the possessions of another. An assailant. to make invasions upon the right of another. To advance gradually and by stealth upon that to which one has no right. To invade . . . . to come in unwelcome by a kind of violence; to enter without invitation or permission. To encroach; to force in uncalled or unpermitted.— adverse; opposite; suitable to an enemy.
J 1. To attack a country; to make a hostile entrance, 2. To attack; to assail; to assault, 3. To violate with the first act of hostility; to attack . . . . 1. One who enters with hostility into the possessions of another. 2. An assailant. 3. Encroacher, intruder . . . . 1. To make invasions upon the right of another; to put a hook into another man’s possessions and draw them away. 2. To advance gradually and by stealth upon that to which one has no right . . . . Adverse; opposite; suitable to an enemy.
W To attack a country; to make a hostile entrance.—to attack; to assail; to assault.–To violate with the first act of hostility; to attack, not defend . . . . Hostile entrance upon the rights or possessions of another; hostile encroachment.—Attack of an epidemical disease . . . . An unlawful gathering in upon another man.—Advance into the territories or rights of another . . . . Adverse; opposite; suitable to an enemy.
J to attack or set upon, to usurp . . . . an invading or setting upon, an encroachment or inroad upon a Country . . . an encroaching. to get wrongfully, to usurp.”
W to enter in a hostile manner . . . . a hostile entrance, an attack . . . . adverse, opposite; suitable to an enemy.”
S Hostile entrance upon the rights or possessions of another, hostile encroachment . . . . An unlawful gathering in upon another man; advance into the territories or rights of another . . . . To attack a country, to make a hostile entrance; to assail, to assault.”
30 JCC,
P
M
Charles Carroll of Carrollton,
“A Democratic Federalist,” P
“Monitor,” H
T
Because of its insular position, Britain did not need to defend its border against unauthorized crossing by land. But Britain faced similar issues on the coast. Thus, a 1758 essay discussed “invasion by a fleet of unarmed flat-bottomed boats,” although denying that the problem was serious enough to justify a large navy.
Letter from Benjamin Franklin to Peter Collinson, Jun. 26, 1755,
M
3 JCC, Whereas the colony of Connecticut has, by a certain act of their assembly, resolved that no further settlements be made on the lands disputed between them and Pennsylvania, without license from the said assembly, Resolved, That it be recommended to the colony of Connecticut not to introduce any settlers on the disputed lands with Pennsylvania until further order of Congress, or until the dispute shall be settled.
26 JCC,
“John DeWitt,”
William Yonge,
317 U.S. 1 (1942).
Thus, there seem to have been no resort to arms when the Connecticut “invasion” crossed the Pennsylvania border. However, the settlers subsequently defended themselves with arms. S
T
32 JCC,
26
15
20
9
23
Many persons are settling without legal authority upon lands belonging to the State, which have always been considered as a very valuable fund for relieving the Commonwealth from the heavy burthen of public debts. These settlers may become numerous and troublesome, unless some effectual means can be devised for preventing the mischiefs that are to be apprehended from such irregular proceedings.
U.S. C
Robert G. Natelson,
Ilya Somin,
M
M
M
The concept of
Calvin’s Case (1608) 77 Eng. Rep. 377, 388; 7 Co. Rep. 1, 9b (K.B.). Formally, the case was entitled Calvin v. Smith. Although presented in the Exchequer, judges from other courts participated in the argument, including all five judges of the King’s Bench, as well as Sir Edward Coke, then Chief Justice of the Court of Common Pleas. Calvin’s Case became the leading English authority on alienage and related subjects as well as allegiance.
1 W
2 V
1 C
1 W
Calvin’s Case (1608) 77 Eng. Rep. 377, 399; 7 Co. Rep. 1, 18a (K.B.). Thus, the British-born child of an alien friend living in England and in temporary allegiance (discussed
1 W
Some commentators have argued that a person who, for any reason, was a citizen at birth is therefore qualified as a natural born citizen and that power to grant such citizenship is unlikely to be abused because Congress “may not declare any person a ‘citizen at birth’ retroactively.” Jill Pryor,
1 B
1 B
1 W
1 B
1 W
1 B
1 W
Courteen’s Case (1618) 80 Eng. Rep. 416, 417; Hobart 270, 271 (Star Chamber) (ruling that Dutch alien friends were subjects, although not natural born subjects);
Every alien was either a friend or an enemy. Calvin’s Case (1608) 77 Eng. Rep. 377, 397; 7 Co. Rep. 1, 17a (K.B.).
1 W
1 W
Conflicting allegiance likewise would not be a problem if an alien friend foreswore allegiance to the nation of his birth, but that generally was not done prior to the U.S. Constitution. J
Tucker’s Case (1693) 91 Eng. Rep. 533; 2 Salk. 630 (K.B.).
1 W
1 V
Somersett v. Steward (1772), 98 Eng. Rep. 499, 501; Lofft 1, 4 (K.B.) (“From the submission of the negro to the laws of England, he is liable to all their penalties, and consequently has a right to their protection”).
2 V
3 G
1 Hale,
Sometimes it is not clear whether a protected person was classified as an alien enemy against whom hostilities are suspended or as an alien friend. Women, children, the sick and aged, are in the number of enemies…. And there are rights with regard to them, as belong to the nation with which another is at war…. But these are enemies who make no resistance; and consequently give us no right to treat their persons ill, or use any violence against them, much less to take away their lives.
2 V
1 H
Calvin’s Case (1608) 77 Eng. Rep. 377, 384; 7 Co. Rep. 1, 6b (K.B.). An excerpt:
But if an alien enemy come to invade this realm, and be taken in war, he cannot be indicted for treason . . . for he never was in the protection of the King, nor ever owed any manner of ligeance unto him, but malice and enmity, and therefore he shall be put to death by martial law.
Duke of Norfolk’s Case (1603), Duke. I beseech you, my Lords the Judges, may a subject be the Queen’s Majesty’s enemy while the [subject’s own] prince is her friend, and in amity with her? Catline, C. J. In some cases it may be so; as in France, if the dukedom of Brittany should rebel against the French King, and should (during the amity between the French and the Queen’s Majesty) invade England, those Britons were the French King’s subjects, and the Queen’s enemies, though the French King remaineth in amity; and so in your case.
Vaughan’s Case (1696) 91 Eng. Rep. 535; 2 Salk. 634 (K.B.).
“Citizens” rather than “subjects” because at the time the Netherlands was a federal republic: the United Provinces of the Netherlands. The echo of that name in “the United States of America” is not accidental. The United Provinces lasted until 1795 with the establishment of the Batavian Republic. The Netherlands became a kingdom in 1806.
Vaughan’s Case (1696), 91 Eng. Rep. at 536; 2 Salk. at 635.
Miller v. United States, 78 U.S. 268 (1870):
It is ever a presumption that inhabitants of an enemy’s territory are enemies, even though they are not participants in the war . . . But even in foreign wars persons may be enemies who are not inhabitants of the enemy’s territory . . . And it would be strange if they did, for those not inhabitants of a foreign state may be more potent and dangerous foes than if they were actually residents of that state . . . Clearly, therefore, those must be considered as public enemies, and amenable to the laws of war as such, who, though subjects of a state in amity with the United States, are in the service of a state at war with them, and this not because they are inhabitants of such a state, but because of their hostile acts in the war.
1 V
1 V
Originally “due process of law” referred to all the rights a person held according to the law of the land.
The Supreme Court has adopted quite different formulations.
U.S. C
U.S. C
U.S. C
A decision by federal officials to waive or not enforce applicable federal law may give rise to the claim that the intruder has been “invited” and therefore is not an alien enemy and cannot be treated as such by states. Such a claim might be warranted if that decision is pursuant to state or federal pardon powers; we do not believe such a claim is warranted simply because the executive fails to enforce federal law.
As a practical matter, states and the federal government usually will classify the same people as either alien friends or enemies. However, outside the naturalization and bankruptcy contexts, U.S. C
1 W
U.S. C
U.S. C
United States Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978).
U.S. C
Missouri v. Holland, 252 U.S. 416 (1920).
Reid v. Covert, 354 U.S. 1 (1957).
Bond v. United States, 572 U.S. 844 (2014).
Prinz v. United States, 521 U.S. 898 (1997).
Luther v. Borden, 48 U.S. 1 (1849); Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912); Baker v. Carr, 369 U.S. 186 (1962); Rucho v. Common Cause, 588 U.S. ___, 139 S. Ct. 2484, 2506 (2019) (dicta).
California v. United States, 104 F.3d 1086 (9th Cir. 1997); Padavan v. United States, 83 F.3d 23 (2d Cir. 1996) (both holding the Protection From Invasion Clause to be non-justiciable).
New Jersey v. United States, 91 F.3d 463 (3d Cir. 1996).
Luther v. Borden, 48 U.S. 1 (1849) (discussing such factors).
One is reminded of the neglect of the administration of President James Buchanan in the face of secession.
U.S. C
In Arizona v. United States, 567 U.S. 387 (2012), the court said that the federal government’s authority over immigration “rests, in part, on the National Government’s constitutional power to ‘establish an uniform Rule of Naturalization’ . . . and its inherent power as sovereign to control and conduct relations with foreign nations . . . .”
We leave unresolved the question of the extent to which federal actions within core federal powers (such as the power to regulate Commerce), U.S. C
Natelson believes that incidental powers trump reserved ones, because only powers not granted are reserved, and the Constitution grants incidental powers; Hyman believes that the Self-Defense Clause is a concurrent power, and is an express right similar to those enumerated in the Bill of Rights, not just a residual effect of granting limited power to the federal government. They agree that, where possible, federal statutes should be interpreted to avoid intruding into traditional areas of state authority, including self-defense.