Marque and Reprisal

Noting why the power to issue letters of marque and reprisal was necessary.

Describing origins of privateering and arguing that the clause could have modern applications.

Questioning whether an executive power to declare war is consistent with vesting the much less significant power to grant letters of marque and reprisal in Congress.

Explaining that “letters of marque” were authorizations for privateers to “use force to harass or prey upon a nation’s enemy” and that “reprisal” was the “legally authorized act of securing redress for a debt incurred by a foreign government by forcibly taking the private property of its subjects,” and arguing that the Clause “concerned the distinction between the public and private waging of war and the right of a sovereign nation to make decisions regarding that distinction.”

Explaining that “[l]etters of marque and reprisal were government authorizations to private shipowners to seize property of foreign parties, usually ships or property from ships,” and arguing that “[a]n essential feature of letters of marque and reprisal was the financial independence of those holding them.”

Arguing that “the Framers considered the power to issue letters of marque and reprisal sufficient to authorize a broad spectrum of armed hostilities short of declared war.”

Describing the international legal effect of a letter of marque or reprisal and rejecting as overbroad the argument that the clause gave “Congress control over all forms of hostilities short of a declared war.”

Arguing that “the Marque and Reprisal Clause was inserted in Article I to ensure that lesser forms of hostilities came within congressional power.”

Arguing that the Marque and Reprisal Clause “grants Congress sole authority to authorize private individuals to use force against another country or its citizens.”