Piracy and Felonies and Offenses Against the Law of Nations Clause

Arguing that the text makes international treaty obligations automatically part of U.S. domestic law but not unwritten obligations to the law of nations.

Arguing that the Framers did not exclude treaties from “offences” and that the original meaning of the Define and Punish Clause includes the unwritten law of nations and of treaties.

Arguing that the Define and Punish Clause, the Letter of Marque and Reprisal Clause, the Captures Clause, and the Inferior Courts Clause inform the original understanding of the Declare War Clause and related clauses.

Arguing that the “[t]he originalist evidence is too thin to be decisive and is not entirely unidirectional,” but that “[t]he purposes and historical background of ‘Offenses,’ its limited role in the ratification processes, and the language itself tend to suggest a limited scope to the definitions of ‘defining’ and ‘offenses.’”

Arguing that the Define and Punish Clause is redundant because piracy has long-been recognized as a type of felony.

Arguing that “[t]he authority over felonies covers a wider range of conduct but is narrower in its extraterritorial scope than piracy” and that Congress thus may not exercise Universal Jurisdiction over the non-piracy offenses listed in the Define and Punish Clause.

Discussing the original meaning of Define and Punish Clause in relation to the concentration of powers over foreign affairs and war in Congress.

Arguing that customary international law is part of the law of the United States, even in the absence of congressional exercise of the define and punish power.

Arguing that “Congress could not create offenses, but retained only the second-order authority to assign more definitional certainty to those offenses already existing under the law of nations at the time it legislated.”

Explaining historical context of the Clause and discussing the meaning of “punish” and “offense.”

Arguing that the Define and Punish Clause is not strong evidence of globalism.

Arguing that the lack of significant debate on the Define and Punish Clause “reflected general unanimity about the importance of the powers conferred on the national government, rather than disinterest” and that “[g]iven the paucity of language in the Constitution expressing this commitment, it is likely that the Offenses Clause was intended to play a major role in enabling the federal government to enforce compliance with the nation’s international law obligations.”

Arguing that “[t]he First Congress would have viewed the elaboration of the law of nations by common-law courts as the ‘discovery’ of a pre-existing natural law” and “would have viewed its own legislation defining offenses against the law of nations as ‘declaratory’ of the same pre-existing law.”

Arguing that the Framers had two concerns when drafting the Punishment Clauses: (1) they wanted stop the states from defining and punishing offenses against the law of nations; and (2) they wanted  Congress to deal with uncertainties about what the offenses were. Also identifying evidence that suggests the Framers believed the Clause was not restricted to just the offenses recognized in 1789.