Has Article Four, Section Four of the US Constitution ever been explicitly invoked?

November 2, 2010 6:39 AM

Has Article Four of the US Constitution ever been explicitly invoked to justify state violence or state action against American citizens?

I'm fascinated by Article Four of the US Constitution and in particular section four:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

I'm trying to find cases where this has been invoked by government, particular in cases of domestic uprisings (riots, protest, et cetera). Wikipedia mentions that it was discussed during the 1967 Detroit Riots, but that's all. I'm especially interested in antebellum examples, if there are any.

And, sub-question: any recommendations for good books or articles that address this section in particular? I have full access to an academic library, including online journal databases. I fear no scholarly sources.

posted by synecdoche to law & government (11 answers total)

Just a guess: I would assume that this is what's happening anytime the National Guard gets called out.
posted by Aizkolari at 7:02 AM on November 2, 2010

The Whiskey Rebellion of 1794 is the classic example.
posted by valkyryn at 7:04 AM on November 2, 2010

According to Wikipedia, this clause was invoked to end a ranch standoff using the Sixth Cavalry during the Johnson County War in 1892.

Relevant passage:

"Harrison immediately ordered the United States Secretary of War Stephen B. Elkins to address the situation under Article IV, Section 4, Clause 2 of the U.S. Constitution, which allows for the use of U.S. forces under the President's orders for "protection from invasion and domestic violence". The Sixth Cavalry from Fort McKinney near Buffalo was ordered to proceed to the TA ranch at once and take custody of the WSGA expedition. The 6th Cavalry left Fort McKinney a few hours later at 2 am on April 13 and reached the TA ranch at 6:45 am. The expedition surrendered to the Sixth soon after and was saved just as the posse had finished building a series of breastworks to shoot gunpowder on the invader's log barn shelter so that it could be set on fire from a distance. The Sixth Cavalry took possession of Walcott and 45 other men with 45 rifles, 41 revolvers and some 5,000 rounds of ammunition."

posted by Happy Dave at 7:07 AM on November 2, 2010

Aizkolari: "Just a guess: I would assume that this is what's happening anytime the National Guard gets called out."

Nope, actions by the National Guard or other military units against the populace in general (i.e. to break up riots) are covered under Article 1, Section 9 plus a slew of court decisions over the years.

The clause under question is, I believe, aimed at actual armed attack by organised bodies, i.e. militias, tooled-up criminal gangs, vigilante groups etc.
posted by Happy Dave at 7:37 AM on November 2, 2010

There are only a handful of court cases involving this part of the Constitution, which is called the Invasion Clause. This is primarily because, like the rest of the clause, issues arising under it are considered nonjusticiable under the political question doctrine.

For example, California v. United States, 104 F.3d 1086, 1090-91 (9th Cir. 1997). In that case, California claimed that illegal immigration constituted an Invasion and that the federal government had violated its obligations under the clause to protect the states.

Other courts reached the same conclusion: New Jersey v. United States, 91 F.3d 463 (3rd Cir. 1996); Chiles v. United States, 69 F.3d 1094 (11th Cir. 1995); Padavan v. United States, 82 F.3d 23 (2nd Cir. 1996).

To the extent the courts have construed the meaning of the clause, Padavan puts it most succinctly: "In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state's government." 82 F.3d at 28.

This is premised on Federalist 43, which discusses the Invasion Clause. "Madison stated that Article IV, § 4 serves to protect a state from "foreign hostility" and "ambitious or vindictive enterprises" on the part of other states or foreign nations." 104 F.3d at 1091.
posted by jedicus at 7:39 AM on November 2, 2010 [2 favorites]

jedicus, is it not the 'domestic violence' part of the Clause that the OP is interested in, specifically as it applies to action against US citizens? I'd be interested to hear what counts as 'domestic violence'. Does it only apply to, say, uniformed California National Guard violently attacking and taking over the governmental functions of Nevada, or, as the cases dug up through Wikipedia seem to indicate, can it be invoked any time you have an armed body composed of US citizens attacking other citizens, state or federal personnel or property inside US borders?
posted by Happy Dave at 8:03 AM on November 2, 2010

I should have said that I couldn't find much about the domestic violence clause at all, and I would expect them to treat that clause in the same way as the invasion and guarantee clauses: as political questions.

I did find a case dealing with the almost frivolous claim that domestic violence (as in spousal abuse) should qualify under the clause. United States v. Smith, 171 F.3d 617 (8th Cir. 1999). From that we get this bit of interpretation:

Smith's remaining contention is that his sentencing violates the Domestic Violence Clause of the Constitution. See U.S. Const. art. IV, § 4. Suffice it to say that when that Clause speaks of "domestic Violence" it means insurrection, riots, and other forms of civil disorder. It has no application to the Congress's powers to regulate the possession of handguns under the Commerce Clause. Smith's argument is not only unconvincing--it borders on the frivolous.

Federalist 43 also contains a short discussion of the clause:

Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature.

At first view, it might seem not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government; and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it.

The "recent and well-known event among ourselves" is Shays' Rebellion, so that should give you some sense of the scope of the clause.
posted by jedicus at 8:18 AM on November 2, 2010

I wonder whether this was the justification used by Eisenhower to send the 101st into Arkansas?
posted by Chocolate Pickle at 10:05 AM on November 2, 2010

Here's an article that may be useful to you. It's mostly about a theory of how the domestic violence clause applies to federal criminal laws, but there's a good discussion of the history of the clause and its development during the Constitutional Convention. Jay S. Bybee, Insuring Domestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of the Domestic Violence Clause, 66 Geo. Wash. L. Rev. 1 (1997).
posted by jedicus at 10:45 AM on November 2, 2010

I wonder whether this was the justification used by Eisenhower to send the 101st into Arkansas?

The immediate justification was the Insurrection Act of 1807.

Presidents Eisenhower and Kennedy invoked the act four times between 1957 and 1963 to enforce desegregation laws in Arkansas, Mississippi and Alabama. President George H.W. Bush invoked the act in 1989, federalizing National Guard units and deploying the 16th Military Police Brigade to restore order in the Virgin Islands in the aftermath of Hurricane Hugo. Finally, the first President Bush, at the request of the governor of California, invoked the Insurrection Act in 1992 to empower a federal joint task force to enforce the law during riots in Los Angeles.

(Source). The Insurrection Act was based not on the Domestic Violence Clause but on the First Militia Clause: "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." U.S. Const. art. I, § 8, cl. 15. See Stephen I. Vladeck, Emergency Power and the Militia Acts, 114 Yale L.J. 149 (2004).

It was also that power that was invoked (via the Militia Acts) to put down the Whiskey Rebellion.
posted by jedicus at 10:52 AM on November 2, 2010 [1 favorite]

Thanks for all the suggestions so far. I am particularly interested in the domestic insurrection side of things (and, as Happy Dave points out, what exactly has constituted "domestic violence"). But, this is all interesting to me. I've read a bit about the Whiskey and Shay's Rebellions but I think I'll have to read more. Federalist 43 looks like something else I'll have to read more closely.
posted by synecdoche at 2:37 PM on November 2, 2010