In the Epoch Times on January 8, 2024 there’s an opinion piece by Rob Natelson titled "Understanding the Constitution: How States May Respond to Illegal Immigration—Part I". Here’s an excerpt:
Does the peaceful, but illegal, flood of immigrants across the border qualify as an “invasion” as the Constitution uses the term? Put another way, are unauthorized migrants “invading” Texas, Arizona, and other states?…The first stop on the path to learning what the Constitution means by “invaded” and “invasion” is to look up those words in Founding-era (i.e., 18th century) dictionaries….It was clear from the dictionaries that “invasion” covered much more than military assault.
The next stop on the journey consisted of the debates over the Constitution itself. They showed that the Constitution’s use of “invaded” and “invade” meant only physical intrusions, not intrusions on rights or personal space. Otherwise, though, the definitions were quite broad….They certainly weren’t limited to attacks by foreign armies. Madison himself, for example, wrote in Federalist No. 41 of attacks along the Atlantic coast by “licencious [sic] adventurers … daring and sudden invaders.” The phrase included not only formal military operations, but also raids by pirates and other illegal opportunists.… [T]he Founders’ books on international law all confirmed that people had no right to enter a sovereign’s territory without the permission of the sovereign. And no nation had the right to assist or allow its citizens to enter another sovereign’s territory without permission.
One of the most interesting pieces of evidence came from an actual 18th-century case of illegal immigration. Before the Constitution was adopted, the State of Connecticut had a claim to land in the Wyoming Valley. The Wyoming Valley is the part of modern-day Pennsylvania around Scranton and Wilkes-Barre. Relying on their state’s claim, Connecticut citizens poured into the Wyoming Valley—to the great distress of Pennsylvania authorities. The newcomers settled on rich farmland that, according to Connecticut law, was theirs—but according to Pennsylvania law was not. This immigration into the Wyoming Valley wasn’t a military assault. Local Indians and Pennsylvania officials eventually attacked the settlers, and they resisted. But the immigration itself seems to have been almost entirely peaceful. But to Pennsylvanians, the unauthorized immigration was an “invasion.” In 1754, Benjamin Franklin authored a plan “to divert the Connecticut Emigrants from their Design of Invading this Province.” And in 1783 the Pennsylvania legislature wrote to the Confederation Congress, labeling the Connecticut settlers “invaders of the State.”
And in conclusion:
The Constitution’s words “invaded” and “invasion” include unauthorized mass migration into the United States or into individual states. Unauthorized mass migration therefore triggers certain government powers and duties—state as well as federal. The following installments in this series will explain what those powers and duties are.
This opinion piece by Rob Natelson and forthcoming installments rely upon a law review article that he and I collaborated on recently. Rob mercilessly compelled me to scour hoary works by the likes of Grotius, Pufendorf, Vattel, and especially old British sources, but I admit it was worth it. Future researchers in this area should keep in mind that, being an island, Great Britain did not have to deal with unauthorized caravans of immigrants, but they did have to deal with unauthorized immigrants coming by sea, and we found evidence that such people were considered to be “invaders,” albeit not the most threatening kind; for example, a 1758 essay discussed “invasion by a fleet of unarmed flat-bottomed boats,” while denying that such an invasion was serious enough to justify a large navy. We found no pre-ratification evidence that such nonviolent incursions and encroachments did not rise to the level of “invasion.”
Posted at 9:15 AM