Jump to Article

Jump to Amendment

Captures Clause

The Congress shall have Power To …make Rules concerning Captures on Land and Water….

article I

Section

Clause

Related Citations

Ingrid Wuerth, The Captures Clause, 76 U. Chi. L. Rev. 1683 (2009).

Arguing that the Captures Clause gave Congress the power to determine what property was subject to capture by both public and private forces, which supports a relatively broad reading of the Declare War Clause.

David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008).

Noting that theorists from the time of the Founding considered “captures’” to include the takings of people.

Kathryn L. Einspanier, Burlamaqui, the Constitution, and the Imperfect War on Terror, 96 Geo. L.J. 985 (2008).

Arguing that it is likely that the Declare War Clause, the Marque and Reprisal Clause, and the Captures on Land and Water Clause function together to prevent loopholes that the President could use to justify initiating hostilities.

Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 Tex. L. Rev. 299 (2008).

Explaining the historical purpose of the capture rules.

Ingrid Brunk Wuerth, International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered, 106 Mich. L. Rev. 61 (2007).

Arguing that “capture” refers to both private and public seizures of enemy property.

John Yoo, Transferring Terrorists, 79 Notre Dame L. Rev. 1183 (2004).

Arguing that Congress’s power “to make Rules concerning Captures on Land or Water” applies only to captured property.