Liberty or Laws? -- Militia in Defense of the State

[Gary Hunt]

Liberty or Laws?
Militia in Defense of the State

Gary Hunt
Outpost of Freedom
July 21, 2014

Prior to the Constitution, under the Articles of Confederation, each State (nation) had a right to defend its borders.  The Articles created a collective pursuit of defense of borders against the British.

With the ratification of the Constitution, there was a greater consolidation of the collective into a Union.  It also imposed upon that Union an obligation to protect each State against invasion, first, within the Powers of the Congress:

Article I, § 8, clause 15-- The Congress shall have the Power...  To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Secondly, a guarantee (the only guarantee in the Constitution), with the mandatory "shall":

Article IV, § 4-- 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.

It is apparent, then, that protection from invasion warrants the attention, and cooperation, of the federal government.  However, we must consider whether the States lost their right to repel invasion, absent the federal government fulfilling their oblation and guarantee.  This, then, leads us to the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Congress was given the Power, though nothing makes that Power exclusive.  If it had been exclusive, surely a prohibition against the state protecting its borders would have been written as a prohibition in Article I, Section 10.

Well, that all makes sense; however, can that right to protect a State's borders be affirmed by example?  Answer: Most assuredly.  Though the incidents being used to demonstrate this "Right of the State" to protect its borders were from the early part of the 19th Century, there have been no changes to the Constitution that would eliminate that right.

* * *

The Toledo War

In 1835, based upon an incorrect map of the region, two lines were established between the boundaries of Michigan and Ohio.  The land within this disputed area comprised about 486 square miles.  Ohio had become a state in 1803, though the boundary in dispute was between Ohio and the then territory of Michigan.

Beginning in late 1834, Michigan's Territorial Governor Stevens Mason sent the Militia to the disputed line and claimed that he would not use force, so long as Ohioans stayed out of the disputed area.  Ohioan responded by sending their Militia to the same area.  Michigan's militia ended up arresting some Ohio Surveyors and Officials, firing some shots into the air to scare off others from the survey party.

The dispute was finally settled where President Jackson and the Congress redefined the boundary between Ohio and the Territory of Michigan, give each portions of the disputed lands.  Finally, in 1837.  Michigan was granted statehood.

The extent of federal authority was limited to resolving the dispute politically.  There was no federal armed intervention.

* * *

The Honey War

Missouri became a state in 1821.  The boundaries of the state were defined in the Constitution adopted at statehood.  The description of the Northern boundary, however, was unclear and lay in Indian lands.  At the expiration of the Indian's usage of the land, in 1836, Sullivan surveyed the boundary.  The future Iowa was then a part of Wisconsin Territory.  The land, based upon subsequent review of the description of Missouri's boundary, and a correct interpretation, created an overlap of up to 12 miles.

When a Sheriff from Missouri entered the disputed land to collect taxes, the locals (future Iowans) disputed his jurisdiction and he was arrested.  Iowa Governor Robert Lucas warned Missouri Governor Lilburn Boggs that the Missouri sheriffs would not be allowed to collect taxes in Iowa.  Boggs then threatened militia action to enforce the collection of the taxes.  Both governors then called out their militia to the disputed area.  The only damage being the destruction of some profitable honey trees, hence the name of the war.  The two militia were called off when the dispute was submitted to Congress, and eventually, to the United States Supreme Court.

Although Iowa attained statehood in 1846, the Court did not settle the dispute until 1851.  The extent of federal authority was limited to resolving the dispute judicially.  There was no federal armed intervention.

* * *

So, there, we have it.  The Constitution remains unchanged, and the States in these disputes, called forth their respective militia to protect their boundaries.  Though nobody was killed, the face off and the potential for real war was present.  The only federal solution was political or judicial.

Suppose, then, that the intrusion, without question of a boundary dispute, exists.  Suppose, also, that the intruders were not Americans, rather, are foreigners.  Would the federal government have any more authority than what has been discussed?  Would they be limited, as they were in the past, to either a negotiated political solution, or a judicial determination?  Is it possible that the right is inherent, in each State (or even as a territory) to defend its borders, by use of the militia?

If some unconstitutional law; Some federal mandate; Some divisive compact between the federal and state government; or, Some financial obligation, precludes the state from protecting its own borders against invasion, is it not, under the current onslaught of illegal immigration across state borders, an abrogation of the responsibility of the governor of any state who refuses to fulfill his duty?

If he should fail to do so, then the People themselves should recognize that the right to self-defense against invasion resides, ultimately, with them, whether under the Congress, the President, or the State governor, or the People who would become that militia force.  In addition, nothing within that Constitution prohibits the militia from acting upon its own behalf.  It only provides for subordination, if the higher governing authority does not abrogate its responsibility.  The Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This is further supported by the oft-overlooked Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Ultimately, the final decision to act is in the hands of the People.  It is their country; It does not belong to the Government.  If the government refuses to act, especially, when the laws of the land require such action, both of federal and state government, the People are left naught -- except to act on their own behalf -- for their sake and the sake of their posterity.

 

This article can be found on line at Liberty or Laws? -- Militia in Defense of the State