The Invasion of Arizona – The Remedy When The Federal Government Refuses To Do Its Duty

By Publius Huldah.

Article IV, §4, U.S. Constitution, requires The United States to protect each of the States against Invasion. It says:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion… [emphasis added]

In Federalist No. 43 (3rd para under 6.), James Madison says of this provision:

A protection against invasion is due from every society to the parts composing it…

Article I, §8, clause 15 grants to Congress the power to provide for calling forth the Militia to [among other things] “repel Invasions”.

But the federal government has persistently refused to call forth the Militia to protect the States on our Southern Border from Invasion!

So! What are States to do when their Lands are invaded, their citizens murdered and kidnapped, their young corrupted by drug-trafficking invaders, and their budgets imploded from unconstitutional federal mandates that we subsidize the invaders? Are the States to sit with folded hands and be destroyed because the federal government refuses to perform its constitutional duty?  No! We are Americans! If the federal government refuses to perform its constitutional duty to call out the Militia to protect the States against Invasion, then the States must perform that Duty.  And as shown below, they have both an implied and an expressly retained authority to do so.

Article 1, §8, clause 16 grants to Congress the power to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States. This clause reserves to the States the Appointment of the  Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

What is the “Militia”?  Webster’s American Dictionary of the English Language (1828) tells us:

The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service.  The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.

So! One of the functions of the Militia – that body of weekend warriors trained by the States and whose officers are chosen by the States, is to defend the States against Invasions. As we have seen, Congress is authorized to provide for calling the Militia into service to repel invasions.  But what if the federal government refuses to act?

Alexander Hamilton provides the answer in Federalist No. 29. Hamilton shows that one of the purposes of the Militia is to protect the citizens of the States from threats to their liberties posed by the federal government (7th & 12th paras); and that the States’ reservation of power to appoint the Officers secures to them an influence over the Militia greater than that of the federal government (9th para). On the use of the Militia to repel Invasions, Hamilton says (13th para):

…it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy…

True, it was contemplated that the “United States” would normally be the entity which protects the States against Invasion (Art. IV, §4). But when the federal government has demonstrated its determination that the States ARE TO BE OVERRUN BY INVADERS, then the States are within their Retained Sovereign Rights to employ the Militia to defend their People from those into whose hands the federal government has demonstrated its determination to deliver them.

Furthermore, Article I, Sec. 10, last clause: says:

No State shall …keep Troops…in time of Peace…or engage in War, unless actually invaded…

So, clearly, the Sovereign States may use their  State Militias and engage in War to defend themselves from the Invasions.

In Federalist No. 46 (7th & 8th paras), James Madison speaks of conflicts between the federal government and the States, caused by encroachments of the former. He does not counsel subservience by the States.  He does not counsel submitting the issue to a federal judge!  Instead, Madison describes various forms of non-violent Resistance properly employed by the States, alone or in unison with other States:

…and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.

In Madison’s magnificent 9th para, he speaks of a federal government so consumed with madness that it sends its regular army against the States:

…Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate [State] governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition [of the federal government], more insurmountable than any which a simple government of any form can admit of… [italics added]

Madison would be disappointed that we permitted this current state of affairs to arise:

…Let us rather no longer insult them [the American People] with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

But we must start from where we are.  We can restore our constitutional republic. We can rein in a lawless federal government which usurps powers even while refusing to perform its basic constitutional duty of protecting the States from Invasion.

The Federalist Papers were written to explain the proposed Constitution and to induce The People to ratify it.  Madison is the “Father of  The Constitution”. These are the highest authority on the meaning of our Constitution.  Clearly, the States may use their Militia to defend their borders, and States may assist one another in this endeavor. And We the People must throw out of office the federal representatives and officials who refuse to perform their constitutionally mandated Duty to defend our borders. Madison writes in Federalist No. 44 (17th para) respecting remedies against a lawless federal government:

…and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers….

When the federal government refuses to obey the Constitution, the States must enforce it. And WE the People must throw the faithless ones out of office.  THIS is how we restore our constitutional Republic.  PH

May 4, 2010;  Revised June 9, 2010