DOMESTIC VIOLENCE CLAUSE

Article IV, Section 4 of the U.S. Constitution Provides:

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.

The last phrase in this section, known as the domestic violence clause, was added to the Constitution in response to shays ' rebellion in Massachusetts in 1786–1787 in which disgruntled Massachusetts farmers shut down the state courts and threatened the legislature. Congress, acting under the articles of confederation and concerned that rebellion might affect other states, attempted to raise federal troops from neighboring states, but was ignored. When the constitutional convention began, three months after Shays' Rebellion was resolved, the drafters included among the Constitution's purposes the need "to insure domestic tranquility" and added the domestic violence clause.

The domestic violence clause commits the power to protect the states to the "United States" rather than to any particular branch. In 1792 Congress assigned to the President the duty to respond on behalf of the United States, a statutory power the President retains today. Presidents have used their authority sparingly. The first President to use this authority was apparently rutherford b. hayes who, in 1877, was asked by the governor of West Virginia (because the state legislature was not in session) to send federal troops to help suppress a railroad labor riot. On several occasions Presidents have declined to respond to requests for assistance because the state had not demonstrated the insufficiency of its own resources or because an official, and not the state legislature, had made the request.

The domestic violence clause has long had a secondary meaning. It was frequently cited during two critical periods—the drafting of the Constitution in 1787 and the fourteenth amendment enforcement debates—as evidence that the states, not the federal government, had the primary responsibility for criminal law enforcement. Some of the Framers, who were concerned that the new federal government would usurp traditional state power over crime, pointed out that the Constitution expressly granted to the United States the power to punish only three crimes: treason, counterfeiting, and piracy on the high seas. They then argued that the domestic violence clause reserved to the states the power to define and punish domestic crime.

These arguments were renewed during the debates over early civil rights legislation enforcing the Fourteenth Amendment. Those who favored an expansive view of the Fourteenth Amendment made a two-step argument: (1) The clause obligated the federal government to intervene when a state was overwhelmed by domestic disturbances and requested assistance, and (2) crimes committed within a state constituted evidence of the state's inability to deal with domestic disturbances and, accordingly, the guarantee of equal protection of the laws justified federal intervention whether or not the state requested it. Those who favored a more limited view of the Fourteenth Amendment argued that the domestic violence clause was itself a limitation on the powers of Congress and that the federal government could not invade the inherent power of states to punish crime, at least not without a proper request from the state.

The arguments over the relationship between the domestic violence clause and the power of Congress to punish crime have never been addressed by the courts. In luther v. borden (1849), the Supreme Court held that the determination of when a state government has properly requested federal assistance under the domestic violence clause belongs to the political branches exclusively. Since that time the courts have declined invitation to construe the duty of the United States under the clause. Accordingly, the constitutional role of the domestic violence clause remains somewhat obscure.

Jay s. bybee
(2000)

Bibliography

Bybee, Jay S. 1997 Insuring Domestic Tranquility, Lopez, Federalization of Crime and the Forgotten Role of the Domestic Violence Clause. George Washington Law Review 66:1–83.

Comment 1966 Federal Intervention in the States for the Suppression of Domestic Violence: Constitutionality, Statutory Power, and Policy. Duke Law Journal 1966:415–462.

Ferguson, Clarence C. 1959 The Inherent Justiciability of the Constitutional Guaranty Against Domestic Violence. Rutgers Law Review 13:407–425.

Rich, Bennett M. 1941 The Presidents and Civil Disorder. Washington, D.C.: The Brookings Institution.

Wiecek, William M. 1972 The Guarantee Clause of the U.S. Constitution. Ithaca, N.Y.: Cornell University Press.