Simone Lawson
The US Constitution's Guarantee Clause of Article IV, Section 4, states that 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 was understood to protect against foreign invasion and invasions of one state by another. 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 local insurrection or interstate aggression.
| Characteristics | Values |
|---|---|
| Founding generation's concerns | Military threat, armed insurrection against state governments, and invasions of one state by another |
| Framers' view | Articles of Confederation needed replacement due to insufficient powers to defend against "foreign invasion" |
| Madison's emphasis | States require "protection against invasion" by foreign hostility and potentially aggressive fellow states of the union |
| Invasion provisions | Protect against foreign invasion and invasions of one state by another |
| Guarantee Clause | "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion" |
| Alien Enemies Act of 1798 | Allows detention and removal of migrants when there is a declared war, invasion, or predatory incursion by a foreign nation or government |
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What You'll Learn
The founding generation's concerns about military threats
The founding generation of the United States had a clear conception of war and military threats. They understood war as a conflict that occurs when military force is employed by one party against another. This was distinguishable from peace, which was considered the normal and preferable state of affairs.
The founding generation was concerned about two primary types of military threats: armed insurrection against state governments and invasions of one state by another state or confederation of states. They sought to ensure that the military resources of the entire union could be used to suppress local insurrection or interstate aggression. This concern was reflected in the Constitution, with Article IV guaranteeing mutual defence against "invasion", and, upon special request, against "domestic violence", or insurrection.
The founders' views on military threats were shaped by their experiences with the British and their opposition to a standing army. They believed that a standing army could pose a danger to the young government and the populace, requiring immense costs to raise and maintain, and potentially leading to financial burdens and taxation. Madison, for example, referred to the establishment of a standing army as a "calamity".
Additionally, the founding generation's perspective on war and military threats was influenced by their understanding of self-defence. They cautioned against purchasing defence at the expense of other strategic priorities, such as national unity, justice, domestic tranquility, and liberty.
Today, the military landscape has evolved with the advent of weapons of mass destruction, cyberwarfare, drones, and other autonomous technologies. The founders' counsel on these modern challenges would undoubtedly be valuable, and their statesmanship and dedication to civic virtue remain relevant in navigating contemporary military and national security affairs.
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Insufficiency of the Articles of Confederation
The Articles of Confederation, written in 1777, was the first written constitution of the United States. It established the first governmental structure unifying the 13 colonies that had fought in the American Revolution. The Articles were ratified in 1781, but lasted only eight years before being replaced by the US Constitution in 1789.
The Articles of Confederation were designed to keep the national government weak and allow the states to be as independent as possible. This was due to widespread fear of a strong central government and strong loyalties among Americans to their own states. However, this led to many significant problems that became apparent once the Articles took effect.
One major issue was that Congress lacked the authority to regulate commerce, making it unable to protect or standardize trade between foreign nations and the various states. Congress could not levy taxes, making it difficult for the new nation to repay its debts from the Revolutionary War. The states rarely complied with Congress's suggestions for raising revenue. Additionally, there was no executive or judiciary, meaning there were no checks and balances in place.
The Articles also did not provide the national government with sufficient powers to defend the nation or individual states against "foreign invasion" or domestic insurrections. For example, during Shays' Rebellion of 1786-87, Congress was unable to use the troops of the Confederation to quell the uprising.
Amendments to the Articles of Confederation required a unanimous vote, and laws required a 9/13 majority to pass in Congress. This, along with issues with trade and taxation, meant that there was no stable national economy. The weaknesses of the Articles of Confederation led to the realization that a new form of government was needed, leading to the creation of the US Constitution in 1787.
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The Guarantee Clause of Article IV, Section 4
Article IV, Section 4 of the US Constitution, also known as the Guarantee Clause, makes three assurances to the states. Firstly, it guarantees a republican form of government. Secondly, it promises protection against foreign invasion. And lastly, upon request by the state, it ensures protection against internal insurrection or rebellion, also referred to as "domestic violence" in the now-archaic sense of "insurrection or unlawful force fomented from within a country".
The inclusion of the Guarantee Clause in the Constitution was motivated by the founding generation's concern over potential military threats, including armed insurrection against state governments and invasions of one state by another. They sought 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 did not provide the national government with sufficient powers to defend the nation and individual states against "foreign invasion" and domestic insurrections. For instance, Virginia Governor Edmund Randolph criticised the New Jersey Plan's weak executive, arguing that it would lead to military weakness.
The Guarantee Clause was intended to address these concerns by providing explicit guarantees of protection against external and internal dangers. In an April 1787 letter to Randolph, Madison emphasised the need for an article that would "guarantee the tranquility of the states against internal as well as external danger". He warned that without efficient organisation on republican principles, more objectionable innovations might be imposed.
The Guarantee Clause has been referenced in several court cases, including New York v. United States (1992), Baldwin v. Fish & Game Comm'n of Mont. (1978), Baker v. Carr (1962), and Texas v. White (1868).
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The Alien Enemies Act of 1798
The Act allows the detention and removal of migrants when there is a "declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." In such cases, the president has the authority to detain or deport "all natives, citizens, denizens, or subjects of the hostile nation or government."
The Act has been invoked three times during major conflicts: the War of 1812, World War I, and World War II. Notably, during World Wars I and II, the Act was used to justify detentions, expulsions, and restrictions targeting German, Austro-Hungarian, Japanese, and Italian immigrants based solely on their ancestry.
The Alien Enemies Act has been criticised for its potential to violate constitutional rights and its susceptibility to abuse. It grants the president significant power over immigrants without a hearing, based solely on their country of birth or citizenship. While the Act was intended to prevent foreign espionage and sabotage during wartime, it has been used against immigrants who are lawfully present in the United States and pose no threat of disloyalty.
In recent times, the Trump administration and some red state governments have attempted to use the Act to justify mass detention and deportation of immigrants, arguing that illegal migration and drug smuggling across the southern border constitute an "invasion" under the Constitution. This interpretation has been criticised as ill-founded and dangerous, as it could lead to states engaging in war without congressional authorisation and the federal government detaining people without charge or trial.
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Trump's Invasion Executive Order
The Constitution of the United States contains a basic security guarantee in Article IV, which promises mutual defence against "invasion" from external forces and "domestic violence" or insurrection. This was intended to ensure that the military resources of the union could be used to suppress insurrection or interstate aggression.
Trump's "Invasion" Executive Order cites the danger of illegal migration, drug smuggling, and the spread of contagious diseases as justification for his assertion of power. The order claims that illegal migration constitutes an "invasion", allowing Trump to shut down legal pathways to migration across the southern border, even in violation of laws enacted by Congress. This includes halting asylum claims and launching mass deportations.
Trump's order is based on the argument that the federal government has failed to protect states from millions of illegal aliens, resulting in costs to state and local governments. The order directs the Department of Homeland Security, the Department of Justice, and the Department of State to take action to repel, repatriate, and remove illegal aliens, restricting their access to immigration laws and asylum.
Trump's characterisation of immigration as an "invasion" has been criticised as dangerous and inaccurate, with evidence contradicting claims about the impact of migration on public health and national security. Courts have rejected similar arguments in the past, and legal challenges to Trump's order are expected. The order's implications include the potential for the federal government to detain people without charge and for states to engage in wars with foreign nations without congressional approval.
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Frequently asked questions
Article IV, Section 4 of the US Constitution, also known as the Guarantee Clause, 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."
The Guarantee Clause was understood to protect not only against foreign invasion but also against invasions of one state by another.
The Trump administration and some red state governments have claimed that illegal migration and drug smuggling across the southern border qualify as an "invasion" under the Constitution. However, this interpretation is ill-founded and dangerous, as it would empower the federal government to detain people without charge or trial.
The Alien Enemies Act of 1798 is a component of the Alien and Sedition Acts, allowing for the detention and removal of migrants when there is a declared war or "invasion" by a foreign nation. If the interpretation of "invasion" is expanded to include migration or smuggling, it would empower states to flout federal law and "engage in war" in response.
