Foreign Aggression: Where's The Constitution's Take?

The US Constitution does not explicitly mention aggression from foreign lands, but it does address the concept of invasion and the protection of states against external threats. Article IV of the Constitution includes a security guarantee, assuring mutual defense against invasion and domestic violence. This provision was intended to safeguard states from both foreign hostility and potential aggression from other states within the union. The Guarantee Clause of Article IV, Section 4, specifically mentions protection against invasion, stating that the United States shall protect each state against invasion. The interpretation of invasion has been a subject of debate, with some arguing that it includes illegal migration and drug smuggling, while others refute this claim, emphasizing that it refers to military invasions or predatory incursions by foreign nations or governments.

Explore related products

The British Political Elite and the Soviet Union

$63.07 $82.99

Habits of Empire

$5.99 $18

Law without Nations?: Why Constitutional Government Requires Sovereign States

$25.01 $47

On Palestine

$12.62 $16.95

Sovereignty disputes and the United Nations Convention on the Law of the Sea: A public order perspective (Melland Schill Studies in International Law)

$160

The United States of America and the Crime of Aggression

$56.99 $56.99

The founding generation's worry about military threats

The founding generation of the United States was concerned about the threat of foreign invasion and military coups. They sought to ensure that the military resources of the union could be used to suppress local insurrection or interstate aggression. This is reflected in the US Constitution, which provides a security guarantee to the states, promising mutual defence against "invasion" and "domestic violence".

At the Constitutional Convention, multiple framers expressed the view that the Articles of Confederation did not provide the national government with sufficient powers to defend against foreign invasion or domestic insurrections. For example, Virginia Governor Edmund Randolph criticised the New Jersey Plan's weak executive, which he believed would lead to military weakness. The founding generation's concerns about foreign invasion were shaped by their experiences with British troops during the War of Independence. They viewed the professional British army as a "conspiracy against liberty", and this influenced Madison's reference to armies having "enslaved" the people they were meant to defend.

The founders had a clear conception of war as a formally declared state, distinguishable from peace. They were cautious about the dangers posed by a standing army, believing it to be a threat to the liberty of the people. James Madison, one of the most vocal proponents of a strong centralised government, argued that "a standing military force, with an overgrown Executive will not long be safe companions to liberty". He believed that the means of defence against foreign danger could become instruments of tyranny within a nation.

While the founders sought to prioritise national unity, justice, domestic tranquility, general welfare, and liberty, the expansion of special operations forces and covert operations in modern times has led to concerns about civilian control and accountability. The founding generation's views on military threats were shaped by their historical context, just as younger generations today have been influenced by witnessing lengthy, unsuccessful wars and military interventions.

Insufficient powers to defend against foreign invasion

The founding generation of the United States was concerned about two types of military threats: armed insurrection against state governments and invasions of one state by another or a confederation of states. To address these concerns, they wanted to ensure that the military resources of the entire union could be utilised to suppress local insurrection or interstate aggression.

At the Constitutional Convention, several Framers expressed the view that the Articles of Confederation needed to be replaced as they provided the national government with insufficient powers to defend the nation and individual states against "foreign invasion" or domestic insurrections. For instance, Virginia Governor Edmund Randolph criticised the New Jersey Plan for a new constitution, arguing that its strong legislature and weak executive would result in military weakness.

Similarly, Massachusetts delegate Rufus King observed the insufficiency of congressional powers in protecting against foreign invasion, stating that "Congress was intended to be a body to preserve peace among the states; and, in the rebellion of Massachusetts [Shay’s Rebellion of 1786-87], it was found that they were not authorized to use the troops of the Confederation to quell it."

Article IV of the Constitution contains a basic security guarantee, providing mutual defence against "invasion" and, upon special request, against "domestic violence" or insurrection. Madison, in Federalist 44, emphasised the need for states to be protected against invasion by "foreign hostility" or potentially aggressive fellow states of the union. He described both invasion and insurrection as "bloody" events requiring "military talents and experience" and "an appeal to the sword."

The Guarantee Clause of Article IV, Section 4 of the Constitution states: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion." This clause prescribes the mode of military organisation and empowers Congress to call forth the Militia to execute the laws, suppress insurrections, and repel invasions.

However, the interpretation of "invasion" in the context of immigration law and policy has been a subject of debate. The Trump administration and some red state governments have controversially argued that illegal migration and drug smuggling across the southern border constitute an "invasion" under the Constitution and the Alien Enemies Act of 1798. This claim, if accepted by the courts, would have far-reaching implications, including the authorisation for states to engage in war with neighbouring foreign nations without congressional approval.

Article IV's basic security guarantee

Article IV of the US Constitution contains a basic security guarantee, which was a primary incentive for the states to join a constitutional union. This guarantee includes protection against "invasion" and, upon request, "domestic violence".

The Guarantee Clause, as it is known, requires the United States to guarantee every State in the Union a republican form of government. However, it does not specify the details of this republican government. For example, it does not address state denial of the right to vote on the basis of race, sex, age, wealth, or property ownership.

The founding generation was concerned about military threats, including armed insurrection against state governments and invasions of one state by another. They wanted to ensure that the military resources of the entire union could be used to suppress insurrection or interstate aggression. At the Constitutional Convention, some Framers criticised the New Jersey Plan for a new constitution, arguing that its strong legislature and weak executive would lead to military weakness.

The Guarantee Clause has been invoked in various court cases, including Luther v. Borden in 1849, where the Supreme Court held that questions arising under the Clause are political, not judicial, in nature. In Pacific States Telephone & Telegraph Co. v. Oregon (1912), the Supreme Court refused to invalidate various forms of direct democracy permitted by state law, such as popular initiative and referendum, on the ground that they violate the Guarantee Clause.

More recently, the Supreme Court has suggested that the justiciability of a Guarantee Clause challenge must be decided on a case-by-case basis. However, as protection against invasion or domestic violence is usually only available from Congress and the President, the political branches have at least the primary duty to carry out the Clause's obligations.

Explore related products

The EU Constitution in Time of War: Legal Responses to Russia’s Aggression Against Ukraine

$129.99 $130

Fascism, State Terrorism and Wars of Aggression (Sison Reader)

$29.99

The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats (Human Rights and Crimes against Humanity)

$14.45 $42

War Powers: The Politics of Constitutional Authority

$28.99 $31

Making Aggression a Crime Under Domestic Law: On the Legislative Implementation of Article 8bis of the ICC Statute (International Criminal Justice Series, 32)

$137.36 $179.99

Critical Race Theory, Ibram X. Kendi and his Book How to be an Antiracist

$6.99

Trump's Invasion Executive Order

The "Invasion" Executive Order refers to a claim by the Trump administration that illegal migration and drug smuggling across the US's southern border qualify as an "invasion" under the US Constitution and the Alien Enemies Act of 1798. This argument is based on Article IV, Section 4 of the Constitution, which states that the US government should "protect each [state] against invasion".

The implications of this claim are far-reaching and dangerous. Firstly, it would empower the federal government to detain people without charge or trial, and open the door for states to engage in war with neighbouring countries without congressional authorisation. Secondly, it would give the president the power to shut down legal pathways to migration across the border, even in violation of laws enacted by Congress.

The Trump administration has also restricted the entry of foreign nationals from certain countries, citing national security and public safety interests. This has been criticised as a broader anti-rights agenda to weaken international human rights and evade accountability.

In addition, Trump has implemented tariffs on goods from allies such as Canada and Mexico, which has inadvertently facilitated China's expanding influence. This has created opportunities for China to strengthen its economic and diplomatic ties, potentially at the expense of US strategic interests.

While it may not be a major issue in the next four years, letting states declare invasions over migration poses dangers. It empowers them to flout federal law and authorises them to "engage in war" in response. This creates a risk of a state government dragging the US into a war with a foreign nation without congressional authorisation.

To date, courts have rejected the immigration/invasion argument, and there have not yet been legal challenges filed against Trump's "invasion" order. However, it is important to reject this dangerous invasion theory to prevent the usurpation of power by the executive branch.

The Alien Enemies Act of 1798

The Act was passed in anticipation of a potential war with France, as the United States believed that "aliens", or non-citizens, living in the country might sympathise with the French. The Federalist Party, which advocated for a robust central government, viewed Democratic-Republican criticism of Federalist policies as disloyal. As a result, a Federalist-controlled Congress passed four laws collectively known as the Alien and Sedition Acts.

The Alien Enemies Act authorises the president to target immigrants based solely on their country of birth or citizenship. It permits the detention and deportation of male "natives, citizens, denizens, or subjects" of hostile nations aged 14 and above who are not naturalised citizens of the United States. This Act has been invoked three times during significant conflicts: the War of 1812, World War I, and World War II. During World Wars I and II, the law was used to justify detentions, expulsions, and restrictions targeting German, Austro-Hungarian, Japanese, and Italian immigrants based on their ancestry.

The Act reflects the founding generation's concerns about military threats, including armed insurrection against state governments and invasions by foreign states or confederations. It addresses the need to ensure that military resources can be employed to defend against foreign invasion and domestic insurrection. However, it is important to note that immigration is not considered an "invasion" under the Constitution, and the Act's broad authority has been questioned in modern times.

Frequently asked questions