This article first appeared in the Originalism Blog at the University of San Diego.
Frank O. Bowman III has written a post for the “Just Security” blog called “Immigration Is Not an ‘Invasion’ under the Constitution.” It argues in part:
[T]he claim that a large increase in the number of would-be migrants gaining entry at the southern border constitutes an “invasion” under Article IV is constitutional nonsense. It cannot be sustained by any reasonable reading of the text of the Constitution, the original understanding of the Constitution, or subsequent interpretations of the Constitution by courts or constitutional scholars.
In his view, the Constitution uses the term “invasion” to mean only an armed military threat, particularly an invasion by a foreign army.
His post caught my eye because Andrew Hyman and I recently spent months investigating this very question as part of our examination of state war powers. (We concluded that the federal government has a monopoly over offensive war, but under specified circumstances a state may wage defensive war.)
We examined almost every kind of source available, and I think we are decent researchers and know how to read “reasonably.” Moreover, the British Journal of American Legal Studies has just published our conclusions, and it is a reputable outlet.
Can it be true that our conclusion is mere “nonsense” that “cannot be sustained by any reasonable reading” of the evidence?
Let me start by noting some points of agreement with Prof. Bowman. We agree that the Constitution uses the words “invasion” and “invaded” in a political sense, so political usage (as opposed, for example, to epic poetry) is a primary indicator of meaning. We agree that those terms apply to physical invasions rather than invasions of rights. We further agree the Founders conceived an “invasion” as an event to which American governments may have to respond militarily. In fact, our article focused on the military options states have in case of invasion.
And finally, we agree that several appeals courts have limited (at least in dicta and without much investigation) the constitutional term “invasion” to assaults by foreign military forces. For many reasons, however, we conclude that those courts were mistaken.
Despite these areas of agreement with Prof. Bowman, I have decided to respond to his post for two reasons. First—and this should be obvious—I believe that his core thesis is wrong, and that as one who has reached quite different conclusions I should point out where I think he went wrong.
Second, I recently was asked to write a basic guide to originalist research, so I have been considering the topic in some depth. The guide would discuss both sources and methods. Whether or not I undertake that project, I do believe readers might benefit from a discussion of some of the errors in the Bowman essay.
The errors I address here are of four kinds:
- relying on insufficient evidence of original understanding or meaning;
- over-reading the evidence cited;
- relying on non-probative evidence;
- committing the logical fallacy of non-sequitur.
I’ll address his arguments in that order, with the understanding that it is somewhat different from the order he adopts.
Prof. Bowman accurately identifies the Constitution’s four uses of “invade” and “invasion.” They are in the Calling Forth Clause (I-8-15), the Suspension Clause (I-9-2), the part of the Compact Clause my co-author and I call the Self-Defense Clause (I-10-3), and the Guarantee Clause (I-4). He argues that “Whether considered individually or collectively, these four usages plainly refer to a hostile armed incursion into or against U.S. territory. Indeed, they cannot reasonably be understood any other way.”
When inquiring into the meaning of a term in an 18th century text, an early step is to look up the term in a contemporaneous dictionary. When the text is a legal one (as the Constitution is), another early step is to consult contemporaneous legal sources.
Andrew Hyman and I consulted 13 dictionaries in common use during the Founding Era. The definitions of “invade” and “invasion” in all but one were broad enough to encompass unarmed and unauthorized incursions across national borders. (I leave aside the fact that many of those coordinating the southern border incursions are, in fact, heavily armed.)
We further consulted authorities on international law popular with the founding generation—including, although not limited to, Grotius, Pufendorf, and Vattel. They all made it clear that a sovereign has the right to control its own borders, and that an unauthorized breach of those borders is a hostile act. So also is facilitating the breach. So also is a sovereign’s failure to prevent its own citizens from participating in the breach.
Then we undertook a comprehensive search of a database of 18th century writings—particularly political and legal writings—and found multiple instances in which actors other than foreign armies were classified as “invaders.” Among the examples were unauthorized and unarmed immigrants using small boats and hostes humani generis (“enemies of the human race”), a label applied to pirates and criminal gangs comparable to the Mexican cartels.
We also found a specific instance in which Americans of the founding generation classified illegal immigration as an “invasion.” This was the unauthorized, but essentially peaceful, migration of Connecticut settlers into the Wyoming Valley of Pennsylvania. Among those referring to this migration as an “invasion” were Benjamin Franklin and, by a formal resolution, the Pennsylvania state legislature. In response, Pennsylvania sought to defend itself by resorting to its war powers. The resulting conflict was called the “Pennamite War”.
It is unclear if Prof. Bowman has seen our paper, but he should consult the sources we cite. Anyway, an incomplete survey of the evidence is one error in method.
In his discussion of the Constitutional Convention and the ratification debates, he writes:
At the Constitutional Convention, multiple Framers repeatedly expressed the view that the Articles of Confederation required replacement because they provided the national government insufficient powers to defend the nation or individual states militarily against “foreign invasion” or domestic insurrections.
That is certainly true: The framers believed the central government needed strengthening—militarily as in other areas.
But as we point out in our article, the strengthening of federal authority did not come at the expense of state defensive war power. In fact, under the Constitution the states actually gained ground compared with the defensive powers they enjoyed under the Articles of Confederation.
Not considering the Articles in depth is another example of the first methodological failure. Moreover, the Articles reference one particular non-military group the founding generation often classified as “invaders:” pirates.
Prof. Bowman then quotes several statements made during the Constitution’s framing and ratification to show that the Founders thought of “invasion” purely in terms of an armed military incursion:
Later in the Convention, Massachusetts delegate Rufus King observed of the constitution under construction: “What are the great objects of the Genl. System? 1. difence agst. foreign invasion. 2. agst. internal sedition.” (emphasis added).
[A]t the Convention, Alexander Hamilton disparaged continental examples of loose federal systems by saying:
Let us examine the federal institution of Germany. It was instituted upon the laudable principle of securing the independency of the several states of which it was composed, and to protect them against foreign invasion.
In Madison’s discussion of Article IV in Federalist 44, he emphasizes that states require “protection against invasion” by both “foreign hostility” and potentially even aggressive fellow states of the union.
The problem in relying on these statements is that they merely reflect the obvious fact that invaders usually are foreigners. They say nothing about whether they have to be armed or part of an armed force, governmental or otherwise.
Thus, this is an example of the methodological fault of over-reading the evidence. Another example of the same failing arises when Prof. Bowman writes:
The Constitution leaves only one narrow exception for emergencies in which states can “engage in War” if they are “actually invaded” or under imminent threat of invasion or a “Danger” so great that it would merit war in response. Even then, the plain implication of the opening requirement of consent of Congress together with the concluding exception for dangers that “will not admit of delay” is that even a state “actually invaded” cannot make war on its own indefinitely, but must appeal to Congress as soon as possible for its consent and support.
Well, no. Actually, the effect of this constitutional provision (I-10-3) is only to allow a state to defend itself fully—and without congressional consent—when invaded or about to be invaded. Converting the phrase into its positive equivalent makes this very clear:
“Any state may keep troops and ships of war in time of war, . . . and engage in war . . . if actually invaded or in such imminent Danger as will not admit of delay.”
This language does not require the state, once it rightfully commences defensive war, to lay down its arms merely because federal functionaries tell it to. Nor is the state right of self-defense limited to congressionally-declared wars. By contrast, the Articles of Confederation did include congressional limits on state self-defense activities. The Constitution’s framers dropped them.
Professor Bowman also relies on Prof. Ilya Somin’s use of James Madison’s 1800 Virginia legislative report, a document attacking the Alien and Sedition Acts:
. . . [As law professor Ilya Somin has pointed out in a series of excellent posts rebutting the contention that peaceful immigration can be termed a constitutional “invasion,” James Madison rejected such claims in his Report of 1800, declaring unequivocally: “Invasion is an operation of war. To protect against invasion is an exercise of the power of war.”
This is an example of relying on a document that proves little about the Constitution’s original meaning. First, the report did not address illegal immigration, but only the potential deportation of aliens who had been “invited” (Madison’s word) into our country. More importantly, as we point out in our article, the report “was written a decade after ratification, and did not represent any kind of consensus among the Founders; on the contrary, it was highly partisan and its conclusions were disputed hotly.”
Finally, Prof. Bowman’s essay includes several quotations suggesting that because a sovereignty responds to invasion militarily, then invasion itself must be military in nature. For example:
Similarly, when Luther Martin, a delegate to the federal convention, later wrote of his concerns about the draft constitution to the Maryland convention, he noted that the power to “suppress insurrections and repel invasions” necessarily involves “calling forth the militia.”
Logic buffs may recognize this argument as a non-sequitur. Essentially the argument runs:
Premise: The response to an invasion must be military in nature.
Conclusion: Therefore, an invasion must be military in nature.
The premise does not follow from the conclusion.
To put the point in more concrete terms: The fact that states have the option of responding with armed force does not mean the invaders have to be armed. The invaders could be a mob. Or just a mass of people far larger than those seeking to stop them. Or individuals sneaking across the border.
We don’t require a police officer to throw away his gun because he is chasing a suspect who is unarmed.
Thus, Andrew and I will have to stand by our conclusion, however “unreasonable” or nonsensical it may seem to those who don’t want it to be true.
Some of the activities at the southern border do, in fact, meet the Constitution’s definition of “invasion.” As such, they trigger the right of the invaded states to respond with legitimate methods of defensive war. These methods do not include killing unresisting and unarmed persons, but they do include sufficient force to end the invasion.