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The Define and Punish Clause doesn’t authorize vast federal power either

The Define and Punish Clause doesn’t authorize vast federal power either

Legal commentators have spread a good deal of ink trying to show that the Constitution authorizes the enormous expansion of the federal government since the 1930s.

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.

Fake News: How Two Leading Newspapers Spread the “Runaway Convention” Story in the 1960s & 1970s

Fake News: How Two Leading Newspapers Spread the “Runaway Convention” Story in the 1960s & 1970s

Although there were scattered antecedents, “runaway convention” claims and certain associated myths were first distributed widely during the 1960s and 1970s. In a previous Article V Information Center study, I documented how those stories were publicized by leading opinion-molders in national liberal establishment. Their goal was to disable the Article V convention process to prevent proposal of constitutional amendments to restrain the federal government.

Now a new Article V Information Center study shows how the two leading newspapers of the same liberal establishment worked with those opinion-molders. During the 1960s and 1970s, the New York Times and the Washington Post not only opposed a convention editorially, but their skewed their news stories to promote fake news “runaway” claims.

You can find the new study here.

The Convention of States in American History

The Convention of States in American History

In this short essay, constitutional historian Rob Natelson thumbnails the three-centuries long history of “conventions of the states.”

When delegations from the states assemble in Phoenix, Arizona later this year, they will be basking in a long and rich American tradition.

As far back as 1677, British colonies in North America sent “commissioners” (delegates) to meet with each other to discuss common issues. These gatherings were essentially problem-solving task forces. That is, they were temporary assemblies charged with proposing solutions to prescribed problems.

During the colonial era, most conventions met in New York City, Boston, or Albany, New York: Albany was popular because it was close to the homes of the Iroquois tribes, who frequently participated. However, one of the most notable conventions occurred in Lancaster, Pennsylvania (1744).

The convention agenda was always set in advance. It sometimes involved common defense against hostile Indians or against French Canada. Often, the colonies convened to hammer out treaties with Indian tribes.

“Convention” was not the only name for these conclaves. Occasionally, they were called councils; more often congresses. (In the international practice of the time a “congress” was a diplomatic meeting of governments on equal terms.) . . . . .

For the entire history click here.

Convention Rules for a Convention of the States

Convention Rules for a Convention of the States

The convention of the states meeting in Phoenix, Arizona in September will need a set of rules. Moreover, that convention will be engaged in further rule-writing because the Arizona Legislature called it partly to suggest rules for a prospective Article V Convention for Proposing Amendments.

I suggest the planners start with the Model Rules provided here. It is an update of rules prepared by a drafting team I headed in 2015 and 2016. It offers advantages no other proposed rules have:

  • There was an extended deliberation period—about a year and a half.
  • The drafting team included two experienced constitutional lawyers and four seasoned state legislators, one of whom had served in legislative leadership in two different states.
  • The Model Rules were not the product of theory or speculation. Although updated for modern conditions, they derive directly from prior convention and legislative experience. Earlier versions worked in Philadelphia in 1787 and, under extremely difficult circumstances, at the Washington Convention of 1861.
  • These Model Rules are relatively simple.
  • We know they actually work: They were tested at a two-day simulated convention in Williamsburg, VA in 2016, where they operated almost flawlessly. Based on that experience, we had to make only very minor amendments.

Obviously, no set of rules can be taken unchanged. But I recommend these for a place to start.

Where Congress’s Power to Regulate Immigration Comes From

Where Congress’s Power to Regulate Immigration Comes From

Introduction. Earlier this year, a law journal published an exchange between two respected law professors—a conservative and a libertarian—about whether the Constitution authorizes Congress to regulate immigration. (The Constitution does not mention immigration except to say that Congress cannot ban it before 1808.) The conservative said “Yes,” and supported his position with some extremely liberal (!) readings of parts of the Constitution. The libertarian said, “No”—that except in special circumstances Congress could not restrict immigration (although the states could).

Surprisingly, both contributors missed the actual source of Congress’s immigration authority: the power “To define and punish . . . Offences against the Law of Nations”) (Article I, Section 8, Clause 10).

The law journal already had been published, so it was too late to join the discussion on its pages. Accordingly, I wrote an article in The Hill detailing why the “Define and Punish Clause” applies to immigration. The libertarian replied on the pages of the Volokh Conspiracy, a Washington Post blog to which he regularly contributes, and for which I have occasionally written as well.

I thought this issue was worth a full explanation of why the Define and Punish Clause covers immigration, because its applicability to immigration is not well known, even among legal experts. Accordingly, I prepared the essay below for readers interested in immigration issues. As should be apparent from this essay, I am NOT taking a stand on immigration policy, just on an issue of constitutional interpretation. This essay appeared in Josh Blackman’s Blog.

Links to some of the earlier writings appear in the essay.

Why the Define and Punish Clause Grants Congress Power to Regulate Immigration

By Robert G. Natelson

            In a recent article in The Hill, I wrote that the Constitution’s grant to Congress of power “To define and punish . . . Offences against the Law of Nations” confers authority to restrict immigration. Professor Ilya Somin has responded and argues the contrary.

Before addressing his argument, I should make clear I agree with Professor Somin on several key issues about the Constitution and immigration. I agree that the original meaning of the Commerce Clause does not include a general power to restrict immigration, and that the Naturalization Clause probably does not, either. In company with him, I reject the claim that the federal government possesses extra-constitutional inherent sovereign authority—because that claim is starkly inconsistent with the ratification-era debates, the structure of the Constitution, and the text of the Tenth Amendment.

Where we differ is about whether the power to “define and punish Offences against the Law of Nations” includes authority to restrict immigration.

“The Law of Nations” was the usual 18th century term for international law. Most of the law of nations governed how nations interacted with other nations. However, some aspects governed how they interacted with foreigners and a few aspects—such as the law merchant—regulated how citizens of different countries interacted with each other.

The law of nations was based on natural law, custom, and international agreements. However, the rules were not always clearly defined, and they were not self-executing. For this reason, legislatures adopted implementing statutes. Examples of such statutes were those protecting safe-conduct passes from disrespect and foreign ambassadors from insult. The Define and Punish Clause granted Congress authority to adopt implementing measures.

The law of nations held, as a general principle, that nations should not harm each other. Hence, it provided that nations must refrain from unauthorized incursions into other nations’ territory. To violate international law, the unauthorized entry need not be led by a foreign government. As the Founders’ favorite international law scholar, Emer de Vattel observed, “Private persons, who are members of one nation . . . may injure a foreign sovereign.” Immigration statutes implemented the “no unauthorized entry” norm against “private persons” from other countries.

Professor Somin acknowledges that “the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit.” But he notes that the mere fact that the law of nations authorized a sovereign to adopt legislation did not render the legislation part of the law of nations. For example, the law of nations recognized a sovereign’s prerogative to enact statutes forbidding murder. However, most murders were not offenses against the law of nations. Moreover, if it were true that any statute consistent with international jurisprudence were part of international jurisprudence, the Define and Punish Clause would empower Congress to adopt any ordinary police legislation permitted by international law. Such a sweeping grant of power to Congress would be inconsistent with the Founders’ design.

On these points Professor Somin is correct.

On the other hand, some domestic statutes surely did define offences against the law of nations. An example is a statute prohibiting a citizen from insulting or impeding a foreign ambassador. Thus, to state that the Define and Punish Clause does not authorize all domestic laws does not answer the question of which domestic laws it does authorize. Is a statute restricting immigration in the class with ordinary murder laws or in the class with protections for ambassadors? Immigration limits have international implications that ordinary murder laws do not have. So reasoning would seem to place immigration restrictions in the “law of nations” category.

But questions of constitutional meaning cannot be answered through pure reason, however acute. Nor does the constitutional answer lie in what we moderns think international law is or should be—a mistake into which Professor Somin’s essay slips once or twice.

At least to an originalist who follows Founding-Era norms of interpretation, the meaning of a constitutional term is fixed by the understanding of those who ratified it or, in absence of sufficient coherent evidence on that subject, by the original public meaning. When, as here, the constitutional debates provide little relevant evidence on the sense of a legal term, our best evidence of its meaning may be Founding-Era jurisprudence. (I say “may be” because contemporaneous congressional and state records are sometimes more helpful.)

To a modern reader, some of the classifications adopted by 18th century jurisprudence appear arbitrary. Yet those classifications often serve to define constitutional meaning. The framers treated bankruptcy and commerce separately, despite their interrelated nature, because they were distinct legal categories. Similarly, the legal phrase of “to regulate Commerce” encompassed travel by ship but not (most) travel by foot. So under the Constitution’s original legal force, the power to regulate commerce included boat travel from Canada but not (usually) walking across the border.

Helpful to grasping international law jurisprudence as the Founders understood it are three treatises they held in high esteem: Samuel Pufendorf’s 17th century work, Of the Law of Nature and Nations, and two 18th century works: Emer de Vattel’s The Law of Nations and Blackstone’s Commentaries.

Vattel wrote that the law of nations derived from the natural law applicable to individuals, as modified by convention and by the special circumstances of sovereigns: “[C]onsequently, the law of nations is originally no other than the law of nature applied to nations” (emphasis in original). Indeed, both Vattel and Pufendorf frequently drew upon rules of natural law applicable to individuals to deduce or justify substantive rules of international law. By way of illustration, here is how Pufendorf justifies immigration restrictions:

The Case is somewhat like that of a private Man, who in his House or Gardens, possesses some rare Curiosity, or other valuable Sight; such an one does not apprehend himself tied freely to let in all Spectators . . . And this seems the more reasonable, because the Grounds of prudent Caution and Suspicion are so numerous. . . .

And farther, that it seems very gross and absurd, to allow others an indefinite or unlimited Right of traveling and living among us, without reflecting either on their Number, or on the Design of their coming; whether supposing them to pass harmlessly, they intend only to take a short view of our Country, or whether they claim a Right of fixing themselves with us for ever. And that he who will stretch the Duty of Hospitality to this extravagant Extent, ought to be rejected as a most unreasonable, and most improper Judge of the Case.

As to our main Question, it is look’d on by most as the safest way of resolving it, to say, That it is left in the power of all States, to take such Measures about the Admission of Strangers, as they think convenient . . . .

I suppose Professor Somin might respond that Pufendorf was merely asserting the power of nations to exclude foreigners—that Pufendorf was not saying the intrusion violated the law of nations. But this does not seem justified by the context. Pufendorf was engaged in the common methodology of using rules of domestic law to deduce rules of international law. Domestic law not only gives permission to a householder to decide to exclude. Domestic law also makes it an offense to disregard the householder’s decision. I see no reason why international law would not encompass both the decision to exclude and unauthorized disregard of that decision. As noted earlier, immigration laws are not purely domestic in their effect; they have important international implications.

Blackstone understood this passage the same way I do, and for purposes of constitutional interpretation Blackstone’s exposition matters a great deal. Explicitly relying on this passage, Blackstone wrote, “Upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. (emphasis added).” To Blackstone, then, the law of nations does not merely grant a sovereign the right to exclude. A violation is itself an offence against the law of nations.

Now we turn to Vattel’s treatise. It consists of four books. The first was entitled “Of Nations considered in themselves.” A major theme of this first book is the derivation of rules of governance from natural law principles. Despite the title, the book goes beyond questions of internal governance to deduce conclusions about the law of nations. Among those conclusions:

*          “A nation or state has a right to every thing that can help to ward off imminent danger;”

*          nations may limit or ban imports;

*          they may refuse to trade with others; and

*          they may restrict emigration and immigration, taking into consideration a range of factors, including available land, health concerns, avoiding religious strife, and factors of safety and culture. Indeed, the nation “has a right, and is even obliged, to follow, in this respect, the suggestions of prudence.”

Now, these seem like rules of international law to me. And in respect to immigration at least, they go beyond mere permission: They extend to obligation—for a sovereign “is even obliged” to legislate according to likely consequences.

Vattel further supports the conclusion that the law of nations includes the substance of immigration statutes. In this book, he mentions a rule among some European states denying citizenship to foreigners. Vattel characterizes the rule—not merely the authorization—as “the law of nations, established there by custom.” Professor Somin observes that this custom regulated citizenship rather than immigration. But that distinction actually cuts against his argument: If even an internal citizenship rule dealing with foreigners—a rule central to the life of a polity—is part of the law of nations, then a limit on foreigners crossing the border is one a fortiorari. (As Professor Somin correctly states, Vattel didn’t like the custom of denying citizenship to foreigners. But that is wholly beside the point.)

Yet, perhaps one might object that Vattel’s first book is really only about “Nations considered in themselves,” and that we should therefore be cautious about treating its conclusions as part of the law of nations.

So let us examine Vattel’s second book. Its title tells us it is wholly about the law of nations: “Of a Nation Considered in its Relation to Others.” (The third and fourth books are about war and peace, respectively.) Here are some passages from the second book, presented in order of appearance:

As every thing included in the country belongs to the nation—and as none but the nation, or the person on whom she has devolved her right, is authorised to dispose of those things,— if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not make actual use of them, those places still belong to her: she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property.

 * * * *

Since the least encroachment on the territory of another is an act of injustice . . . the limits of territories ought to be marked out with clearness and precision.

 * * * *

We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign: for a foreign nation can claim no right in it.

    * * * *

The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. But the prohibition ought to be known, as well as the penalty annexed to disobedience: those who are ignorant of it, ought to be informed of it when they approach to enter the country.

 * * * *

Since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has no doubt a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain.

Perhaps one might rejoin, “Here again, Vattel says only that the law of nations permits sovereigns to restrict immigration; he does not say that violations are part of the law of nations.” On the contrary, though, Vattel does more than describe the prerogative of the sovereign to exclude. In this book (remember: focusing on international norms) Vattel also prescribes the duty to obey:

*          “We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign;” and

*          “[E]very one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual.”

Even if these passages of obligation were absent, I don’t think it is the most natural reading of the text to infer that the right to enact a restrictive statute is a component of international law but violation of the statute is not. I doubt many Americans reading Vattel during the Founding Era would think a book entitled “Of a Nation Considered in its Relation to Others” was telling them, “The law of nations authorizes restrictive immigration statutes but is wholly agnostic about their violation.” Certainly Vattel never says that.

One last point—not fully germane, but worth mentioning. Professor Somin writes, “But in the eighteenth century, and even today, states have no international law obligation to prevent the peaceful migration of their citizens to foreign nations that might wish to exclude them.” Vattel, at least, may well have disagreed:

If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation, than if he injured it himself.

* * * *

Finally, there is another case where the nation in general is guilty of the crimes of its members. That is when by its manners and by the maxims of its government it accustoms and authorizes its citizens . . . to make inroads into neighboring countries.