Some conservatives consider illegal immigration and drug smuggling across the southern border to be an “invasion” under the Constitution. The issue is currently being litigated in two cases in the U.S. Court of Appeals for the Fifth Circuit. Two leading constitutional theorists—Larry Sorum (University of Virginia) and Mark Tushnet (Harvard University)—recently published articles outlining how constitutional theory can be used to explain the meaning of “invasion.” . Here’s an excerpt from Tushnet’s post:
How are we to understand the word “invasion,” which appears three times in the Constitution (in the Habeas Corpus Suspension Clause, in the Compact Clause) [as “actually invaded”], and Article 4)? The term has found a place in contemporary conservative discourse, describing what is happening at the U.S. southern border as an invasion. One could imagine the Trump administration suspending habeas corpus for unauthorized border crossers. Conservatives might claim that Article IV obliges the United States to protect states from invasions (one of which is occurring), and that the president’s failure to do so provides grounds for impeachment for his failure to ensure that the laws are faithfully executed. (At least one impeachment resolution invoked this theory.)
Is this an example of (a) impermissible language drift or (b) vague constitutional terminology that is permissible within reasonable interpretive flexibility? I did some quick and dirty research (this is a blog post after all) and came up with this. The 1785 edition of Samuel Johnson’s Dictionary defines “invasion” as “a hostile entry into the rights or property of another” and provides four examples, two of which involve invasion by the organized military force of a hostile nation (the other two Seems like a metaphor to me). The first definition from Noah Webster’s 1828 dictionary is: “Hostile entry into the property of another; especially the entry of hostile troops into a country for the purpose of conquest or plunder, or the attack of military force. England The north and south of Scotland had been invaded by each other for centuries, and William the Norman invaded England in 1066.
My real confusion is not about the “answer” to the question posed in the previous paragraph. (About 15 years ago, I suggested in passing that the September 11 attacks could plausibly be characterized as an invasion for purposes of suspending habeas corpus, and thus assuming that an organized attack by hostile non-state actors could count as an invasion. So how many Years later, a man launched an ISIS-inspired attack at Fort Hood?
In fact, I think the problem here is not particularly difficult. Whether at the time of the nation’s founding or today, “invasion” usually meant an organized armed attack, but also had secondary meanings, many of which were more metaphorical. Which one is relevant to a particular situation depends on the circumstances.
The use of the word “invasion” in the Constitution is an example of how the meaning of a potentially ambiguous word can become clear in context. In other cases, “invasion” may sometimes mean simply a violation of rights (such as “invasion of privacy”) or even a metaphorical conflict, such as the “British Invasion” in the 1960s when British rock bands came to perform in the United States.
In the context of giving states the right to “engage in war” in response (the Constitution empowers states to do so in the event of “actual invasion”), the suspension of habeas corpus (the federal government can do so in the following circumstances): There is a “invasion”), and other related features of the Constitution, which are limited to organized armed attacks. Evidence from the founding period supports this position. For more details please see my Laufar articles on the subject, as well as amicus briefs I filed in the Fifth Circuit case on behalf of the Cato Institute and myself.
Solum’s post is more extensive and detailed and cannot be easily summarized. Anyone interested in this topic should read the full article! I would just like to point out here that Solem emphasizes that from an originalist perspective, “we do not want to focus solely on the word ‘invasion.’ Rather, our goal is to determine the meaning of the entire clause and article in context.” .
I totally agree! What ultimately determines the meaning of “invasion” in the Constitution is context, particularly the wording of the clause in which the word appears. And the context clearly states that it is limited to organized armed attacks and does not include illegal immigration, drug smuggling, etc.
I believe that this background is also decisive from the perspective of living constitutionalism. No viable theory of constitutionalism would allow states to wage war over illegal immigration or drug trafficking without federal authorization. It would also not give the federal government a blank check to suspend habeas corpus in the event of such an incident. As noted in my article and amicus brief, the latter’s authority is not limited to detaining undocumented immigrants but also includes U.S. citizens and legal residents.
I plan to write an academic article on the meaning of “invasion” in which I will discuss these issues in more detail.
