I recently blogged here about the first article in Rob Natelson’s series of articles at the Epoch Times, in which he concluded that there is an “invasion” at the southern U.S. border. Now I’d like to discuss the second article in that series, which is titled, "
Article IV, Section 4 [of the Constitution] says that “The United States shall … protect each [state] against Invasion”….[T]he federal government is [thus] empowered—and required—to wage defensive war against invasion ….
The Constitution didn’t transfer all sovereignty to the federal government. Some sovereignty—including some sovereign war powers—remained in the states…. Article I, Section 10, Clause 3 limited these reserved state war powers, but also recognized them: “No State shall, without the Consent of Congress … keep Troops, or Ships of War in time of Peace … or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Let’s flip that language to an affirmative form: “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”…. Which brings us to the next topic.
The Constitution left the states with the power to conduct war against invasions launched by [e.g.] enemies of the human race. It also left the states with police power to respond to their criminal acts…. Can you think of some “enemies of the human race” operating along our Southern border today?
Some readers may find it implausible or obnoxious that a state would have power to use the machinery of war against peaceful people who migrate unlawfully into the United States. But that is not how the founding generation understood defensive war, and here is what Vattel (who was widely admired and quoted by the founders) wrote about opponents or enemies in such a war:
[W]hen their resistance cannot be suppressed, when they are not to be reduced by milder methods, there is a right of taking away their life . . . . But the very manner by which the right of killing enemies is proved, points out also the limits of this right. On an enemy’s submitting and delivering up his arms, we cannot with justice take away his life.
In other words, states that have power to wage defensive war are limited, so that the state’s legitimate aims can be attained with minimal use of force.
Posted at 9:33 AM