Leading the way have been some associated—as professors, students, or alumni—with the most privileged educational institutions: Harvard, Yale, Chicago, and so forth. Their publications inflated the Commerce Clause to comprehend almost every activity in modern life. They tore the Necessary and Proper Clause from its intended moorings and re-fit it to carry almost unlimited congressional power. They converted the General Welfare Clause from a restriction on taxation into a permit for unrestricted spending. And they reworked the Property and Enclave Clauses until they supposedly authorized the federal government to own almost 30 percent of the land in the country.
Their arguments have been subtle and ingenious, politically self serving, and occasionally appear dishonest.
Now someone has found a basis for vast federal power in another unsuspected place: the Define and Punish Clause. This is the constitutional provision that allows Congress to “define and punish Piracies and Felonies committed on the high Seas and Offences against the Law of Nations.” Apparently those words have been in the Constitution for over 200 years without anyone realizing that they authorize the federal government to pass all sorts of domestic regulations.
Although the conclusion might be surprising, it is no surprise that this latest effort was published in one of the Harvard journals. The author is a law student rather than a professor, judge, or practicing lawyer, but the editors apparently thought the article was so important and powerful that they gave it the status generally reserved for legal professionals.
Ordinarily, I do not respond to student productions. But, who knows? Maybe this is the next popular justification for the federal monster state: After all, some political activists rely on student writings when it serves their purposes. Promoters of reviving the Equal Rights Amendment cite a student law school project as their legal authority for ignoring the amendment’s ratification deadline.
Now, the truth is that the Define and Punish Clause does not authorize vast federal power. No one should be misled into thinking it does. So I offer the following by way of correction.
The gist of the author’s argument is that the Define and Punish Clause empowers Congress to create offences far outside the scope of the Founding-Era “law of nations” (i.e., international law). For example, Congress may regulate according to international norms established long after the Constitution was ratified. This conclusion would, of course, give a consortium of foreign governments de facto power to change our constitutional system.
The author goes further: Under the Define and Punish Clause, he claims, Congress also may regulate behavior that does not violate established norms at all, but treads merely on the internationally-related preferences of one or more foreign nations. Indeed, Congress may even regulate behavior that Congress thinks should violate international norms, even if no other country agrees!
Now as a general matter, the “vast federal power” literature suffers from certain common defects:
First: During the debates over the ratification of the Constitution, ratification advocates needed to reassure the public about the limited scope of federal power authorized by the Constitution. They issued long lists of subjects that under the Constitution would remain outside the federal sphere. These included social services, most civil and criminal law, agriculture and other land use, manufacturing, and many others. These representations were central to the ratifying public’s understanding of the Constitution. However, “vast federal power” promoters never address them.
Second: These writers usually rely on developments well after the Founding at the expense of material arising before or during the Founding.
Third: They very often present historical and legal sources as meaning something other than what they actually mean. Sometimes they simply misunderstand 18th century language. Sometimes they read a passage out of context or edit it deceptively.
Fourth: It is odd, but true, that in writing about a legal document drafted and promoted mostly by lawyers (i.e., the Constitution), these authors usually under-research Founding Era law.
All four of these defects mar the Define and Punish article.
First: The author does not mention the assurances made by the Constitution’s advocates as to the limited scope of federal power. He certainly does not explain how his expansive view of the Define and Punish Clause could be consistent them.
Second: The author dwells on developments, including court decisions, arising long after the Constitution was ratified. A court decision in 1820 or 1887 may be interesting, but it could not have affected how Americans understood the Constitution in the ratification era (1787-90). (Admittedly, this article does not claim to be purely originalist.)
Third: The author relies on at least one passage deceptively lifted from context. The passage is from Blackstone’s Commentaries. The author reports Blackstone as saying that the “principal offenses” against the law of nations were violations of safe-conducts, infringement of the rights of ambassadors, and piracy. The author then suggests that these were the only existing offenses against the law of nations. So he says Clause must give Congress power over offenses beyond those—because if the framers had wished to limit Congress’s power to them, the framers could have just listed those three areas. Also, the Continental Congress had defined offenses other than those three.
The trouble is that Blackstone never said the three listed offenses were the only offenses against the law of nations. Rather, he stated that they were the only offenses for which Parliament had thus far passed clarifying legislation (“animadverted on as such by the municipal laws of England”). Moreover, even though Blackstone’s treatise was not principally about international law, he identified several other offenses against the law of nations: committing acts of hostility against one’s country in league with a foreign king, making war without a formal declaration, violation of the law merchant (international mercantile law), and violation of immigration law.
Fourth: Although the author (mis)quotes Blackstone, he gives almost no attention to works the Founders relied on that were treatises on the law of nations. The most influential were those written by Hugo Grotius, Samuel Pufendorf, and Emer de Vattel. These scholars spent hundreds of pages outlining the scope of the law of nations, and offenses against that law, as then established.
In several provisions, the Constitution refers to specific bodies of jurisprudence. It does so, for example, in phrases such “on the subject of Bankruptcies,” “regulat[ing] Commerce,” and the “Privilege of the Writ of Habeas Corpus.” The Define and Punish Clause is another illustration of this practice: “Offences against the Law of Nations” denotes violations of established international law, as explicated by writers such as Grotius, Pufendorf, and Vattel. No more.