Some conservatives argue that illegal immigration and drug smuggling across the southern border constitutes an “invasion” under the Constitution. Two lawsuits have been filed in the U.S. Court of Appeals for the Fifth Circuit.Two leading constitutional scholars:Larry Sorum (University of Virginia) and Mark Tushnet A group of Harvard professors recently wrote an article outlining how constitutional theory can be used to address the meaning of “invasion.” Here are some excerpts from Tushnet’s article:
How should we interpret the word “invasion,” which appears three times in the Constitution (the Habeas Corpus Clause and the Treaty Clause)? [as “actually invaded”]as found in Article IV, this term has become entrenched in contemporary conservative discourse and characterizes what is happening on the U.S. southern border as an invasion. It is not difficult to imagine the Trump administration suspending habeas corpus for people crossing the border without authorization. Conservatives might argue that Article IV imposes an obligation on the United States to protect the states from invasions (one of which is currently occurring) and that the president’s failure to do so is grounds for impeachment for failing to ensure that the law is faithfully executed (at least one impeachment resolution has invoked this theory).
Is this (a) an impermissible linguistic aberration, or (b) an acceptable example of prescribing vague constitutional language within the bounds of reasonable interpretive flexibility? I did some quick research (this is a blog post, after all) and came to the following conclusions: Samuel Johnson’s 1785 dictionary defines “invasion” as “a hostile intrusion into the rights or possessions of another” and gives four examples, two of which relate to invasion by organized armies of an enemy nation (the other two seem metaphorical to me). Noah Webster’s 1828 dictionary’s first definition is “A hostile intrusion into the possessions of another; especially the entry of an enemy force into a country, or an attack by an army, for the purpose of conquest or plunder. Northern England and southern Scotland had been the subject of mutual invasion for centuries. William I’s invasion of England was in 1066.”
What really puzzles me is not *the* answer to the question posed in the previous paragraph. (Some 15 years ago, I suggested in passing that the September 11 attacks might be characterized as an act of aggression for purposes of the suspension of habeas corpus, and thus that coordinated attacks by hostile non-state actors might count as acts of aggression. What about the attack by ISIS-inspired individuals at Fort Hood a few years later?) The question is how to think in order to arrive at the answer.
Actually, I don’t think this issue is particularly difficult. The word “invasion,” both then and now, usually means a systematic armed attack, but it also has secondary meanings, many of which are more figurative. Which is more appropriate in a particular case depends on the context.
The use of “invasion” in the Constitution is an example of a potentially ambiguous word whose meaning becomes clear in context: in other contexts, “invasion” may simply mean a violation of a right (e.g., “invasion of privacy”) or, as in the 1960s, a mere metaphorical opposition. “British Invasion” A British rock band performs in America.
In the context of giving states the right to “go to war” (which the Constitution allows states to do in the event of “actual invasion”), the suspension of habeas corpus (which the federal government can do in the event of “invasion”), and other related features of the Constitution, it is limited to organized armed attacks. Evidence from the founding era supports this position. For more information, see my Legal warfare article On this matter, and Amicus Brief I filed one of the cases in the Fifth Circuit Court of Appeals on behalf of the Cato Institute and myself.
Solm’s post is much more extensive and detailed than I can summarize briefly; I encourage anyone interested in the topic to read the full article. For now, I will simply say that from a primitivism perspective, Solm emphasizes that “rather than focusing on the word ‘invasion’ alone, we aim to determine the meaning of the entire clause or article in context.”
I completely agree. What ultimately determines the meaning of “invasion” in the Constitution is the context, specifically the wording of the clause in which it appears, and the context makes it clear that it is limited to organized armed attacks and does not include things like illegal immigration or drug smuggling.
This context, I believe, is crucial from the perspective of living constitutionalism, which does not allow states to wage war on illegal immigration or drug smuggling without the federal government’s permission, nor does it give the federal government the power to suspend habeas corpus whenever such events occur. article and Amicus BriefThe latter powers would not be limited to the detention of illegal immigrants, but would apply to U.S. citizens and legal residents as well.
I plan to write an academic paper on the meaning of “invasion” in which I will discuss these issues in more detail.
Update: I forgot to include the link originally. Posted by Larry SorumThat error has been fixed.
