Constitution Post: Article I, Section 8; Clause 10

Hey Everybody!

In this week’s Constitution Post, we’re looking at Article I, Section 8; Clause 10.  This Clause is known as the Define and Punish Clause, and it reads:

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

Captain Kidd, Long John Silver, Blackbeard — we’ve probably all seen movies or read books about these famous pirates and their maritime crimes and adventures and fantasized about being or fighting pirates, especially the boys among us.  When I was almost seven years old, I became infatuated with pirates and borrowed several books from the local library on the subject.  For some reason, I had thought that pirates were good guys and was surprised to discover that such was not the case!

But, childhood fantasy aside, we all know that piracy and other maritime crimes are unfortunate and not-so-romantic realities.  Whose jurisdiction is it to deal with these things?  According to the Define and Punish Clause, that jurisdiction is delegated to the Federal Government. Let’s dig a little deeper into this jurisdiction.

The delegation of this authority to the Federal legislature (Congress) makes sense, given Congress’s jurisdiction over trade  and foreign affairs (see Article I, Section 8; Clause 3 [the Commerce with Foreign Nations Clause]).  If Congress has authority over all other affairs outside of U.S. soil, it would be reasonable to also delegate the power over piracy and maritime crime to Congress. 

Basically, anything that would be a felony on U.S. soil can also be considered a felony on the high seas, and it is Congress’s responsibility to provide for punishment for the crime as such.

While the “define and punish Piracies and Felonies committed on the high Seas” part of this Clause garnered virtually no controversy at the Constitutional Convention and has undergone little debate since the Constitution’s ratification, the “define and punish… Offenses against the Law of Nations” has garnered much debate, particularly after a few Supreme Court Cases decided in the 1990’s. 

The controversy centers on which definition of the phrase, “the Law of Nations,” one chooses to accept.  One view is that the phrase describes international law, and, therefore, lends to Congress the power to regulate anything that may be dealt with in international law.  This means that anything handled in any international treaty or coalition, such as the United Nations, could become fair game for Congress. 

The other view is that the phrase, “the Law of Nations,” describes only those offenses which relate to actual interaction between nations.  As Michael T. Morley said of the Define and Punish Clause in The Yale Law Journal, 

“The Clause affirms, rather than undermines, the balance of state-federal relations that the Framers intended.  I argue that it allows for the enactment of legislation touching upon only that fixed, discrete set of areas involving intercourse with foreign nations and their citizens–including navigation, trade, war, and diplomacy–that comprise what the Framers believed to be the immutable law of nations.”

This reminds me of a quote from James Madison:

“The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce.”

Can you see the problem with the first view?  It opens the gate for Congress to begin regulating things that the Framers never intended them to regulate!  I think the second view is much more loyal to founding intent than the first. 

Mr. Morley continues,

“Most importantly, the term “law of nations” does not include agreements or norms that address a country’s treatment of its own nationals or other purely domestic matters.  Instead, the law of nations governs actual interactions between countries, and by extension between their citizens, in discrete areas such as war, trade, navigation, and diplomacy.”

So, at the end of the day, the way one interprets this Clause can determine how much power he/she believes Congress should have over our lives.  If the only limitation to Congress’s power over criminal acts is that placed on it by international law, Congress could become omnipotent over our lives; contrariwise, a discrete interpretation of the Define and Punish Clause allows for the most limited government and the greatest civil liberty.

Isn’t it interesting that such a little-known and seemingly simple clause could have such profound impact on our lives?

I hope you’ve enjoyed learning more about our Constitution!  I have included links for extra study below; I encourage you to utilize them and find out more about the Define and Punish Clause!

Keep studying; keep fighting!

Your friend, 


Sources/Further Reading:

Definition of Piracy:

Joseph Story, United States v. Smith:

Michael T. Morley, “The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism,” The Yale Law Journal (2002):

United States v. Lopez:

City of Boerne v. Flores:

United States v. Morrison:

James Madison Quote:

Crimes Act of 1790:

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