Define and Punish Clause

The Congress shall have Power To ...define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations....

Article I, Section 8, Clause 10

The power to "define and punish Piracies and Felonies committed on the high Seas" attracted little discussion at the Founding and has not proven controversial. Although the Constitution authorizes Congress to "define" piracy, the Framers and later commentators, such as James Madison, James Kent, and Justice Joseph Story, opined that piracy was so well defined in international law that a general statute punishing the crime would be valid. Although there has been a federal piracy statute since 1790, the parent of the present piracy statute was enacted in 1819. The current statute provides: "Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life." 18 U.S.C. § 1651. In a decision involving the 1819 statute, the Supreme Court, in an opinion by Justice Story, held that Congress's definition of piracy by reference to the law of nations was sufficiently precise. United States v. Smith (1820). Story reasoned that the crime of piracy had a definite meaning in international law and that "Congress may as well define by using a term of a known and determinate meaning as by an express enumeration of all the particulars included in that term."

The Framers were more concerned with Congress's power to "define and punish... Offenses against the Law of Nations." The define-and-punish power grew out of the Founders' concern that the states might not adequately punish infractions of the law of nations (such as attacks on ambassadors) and, in failing to do so, might thereby implicate the international responsibility of the entire United States. This concern led the Continental Congress to pass a resolution in 1781 recommending that the states "provide expeditious, exemplary and adequate punishment...for the infractions of the immunities of ambassadors and other public ministers authorized and received as such by the United States in Congress assembled." At the Constitutional Convention in 1787, Edmund Randolph stated that one of the defects of the Articles of Confederation was that Congress "could not cause infractions of treaties or of the law of nations, to be punished [and]: that particular states might by their conduct provoke war without controul...."

When the Define and Punish Clause was being drafted, James Wilson expressed concern about the implications of Congress's power to "define" the law of nations: "To pretend to define the law of nations which depended on the authority of all the Civilized Nations of the World, would have the look of arrogance, that would make us look ridiculous." Gouverneur Morris responded: "The word define is proper when applied to offenses in this case; the law of (nations) being often too vague and deficient to be a rule." (In contrast to piracy, Justice Story wrote in United States v. Smith, "Offences, too, against the law of nations, cannot, with any accuracy, be said to be completely ascertained and defined in any public code recognized by the common consent of nations."

The Supreme Court in United States v. Arjona (1887) read the Define and Punish Clause broadly not only to permit Congress to punish actual violations of the law of nations but also to punish offenses that would trigger the international responsibility of the United States if left unpunished. Similarly, in Ex parte Quirin (1942), the Court upheld Congress's "authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals."

There are two potential limits on the Define and Punish Clause. The first limit is based on the protections within the Bill of Rights. For example, in Boos v. Barry (1988), the Supreme Court held that a statute enacted pursuant to the Define and Punish Clause that prohibited the display of certain flags or banners within 500 feet of an embassy violated the First Amendment. A second possible limit is the clause's reference to "punish," which might textually signify that Congress only has criminal enforcement authority, but not the authority to regulate civil suits. Nonetheless, Congress has invoked the Define and Punish Clause as a basis for enacting important civil legislation relating to foreign affairs, including the Foreign Sovereign Immunities Act, 28 U.S.C. § 1601 et seq., and the Torture Victim Protection Act, 28 U.S.C. § 1350 note.

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Jack L. Goldsmith
Henry L. Shattuck Professor of Law
Harvard Law School