Protection Against Domestic Violence
The Supreme Court also held in Luther v. Borden[287] that it rested with Congress to determine upon the means proper to fulfill the constitutional guarantee of protection to the States against domestic violence. Chief Justice Taney declared that Congress might have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere. Instead, Congress had, by the act of February 28, 1795,[288] authorized the President to call out the militia in case of insurrection against the government of any State. It followed, said Taney, that the President "must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress"[289] and that his determination was not subject to review by the courts.
DECLINE IN IMPORTANCE OF THIS GUARANTY
With the recognition in the Debs Case[290] of the power and duty of the Federal Government to use "the entire strength of the Nation * * * to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care,"[291] this clause has declined in importance. When that Government finds it necessary or desirable to use force to quell domestic violence, its power to protect the property of the United States, to remove obstructions to the United States mails, or to protect interstate commerce from interruption by labor disputes or otherwise, usually will furnish legal warrant for its action, without reference to this provision.[292]
Notes
[1] Clark v. Graham, 6 Wheat. 577 (1821), is an early case in which the Supreme Court enforced this rule.
[2] Stat. 122 (1790); 2 Stat. 299 (1804), R.S. § 905 28 U.S.C. § 687.
[3] Mankin v. Chandler & Co., 2 Brock. 125, 127 (1823).
[4] 7 Cr. 481 (1813). See also Everett v. Everett, 215 U.S. 203 (1909); Mutual L. Ins. Co. v. Harris, 97 U.S. 331 (1878).
[5] On the same basis, a judgment cannot be impeached either in or out of the State by showing that it was based on a mistake of law. American Exp. Co. v. Mullins, 212 U.S. 311, 312 (1909); Fauntleroy v. Lum, 210 U.S. 230 (1908); Hartford L. Ins. Co. v. Barber, 245 U.S. 146 (1917); Hartford L. Ins. Co. v. Ibs, 237 U.S. 662 (1915).