Constitution Post — Article I, Section 8; Clause 12

“The Congress shall have Power To …grant Letters of Marque and Reprisal…”

In this week’s Constitution Post, we’re again discussing Congressional power and more issues relating to the war powers.  My conclusions on this regard are largely consequential of my position on the Declare War Clause.  If you haven’t already read my last article, “Constitution Post — Article I, Section 8; Clause 11,” I would encourage you to do so!  You can read it here.

First of all, let’s look at some definitions.  Just what are letters of marque and reprisal?

Let’s take the phrase letters of marque and reprisal apart, look at the definitions, and then put it back together.

Reprisal: “an act of retaliation.”

Letter of Marque: “a license to fit out an armed vessel and use it in the capture of enemy merchant shipping and to commit acts that would otherwise have constituted piracy.”

So, if we put these definitions together, we can conclude that “letters of marque and reprisal” are letters that authorize private entities to conduct war-like acts against enemy entities as an act of retaliation for an injury.  Engaging in such acts is often denominated, “privateering.”

You’ll remember that last time, we discussed the Declare War Clause, which delegates to Congress alone the power to declare war.  As with the power to declare war, the power to grant letters of marque and reprisal, being another direct outworking of the Framers’ intention to “provide for the common defense”; and, being one of Madison’s “external objects” (war, peace, negotiations, and foreign affairs); is naturally delegated to the federal government.

You’ll probably also remember that there is an ongoing debate as to whether the President has any war-making power.  There is a similar debate regarding the Marque and Reprisal Clause.  Congressionalists — those who believe that Congress alone holds all war-making power — believe that the powers to declare war and grant marque and reprisal cover all forms of initiating hostilities; therefore, under their view, the President is prohibited from taking any measures to initiate hostilities.  Under this view, they believe that, since the power to make war and grant letters of marque and reprisal are delegated only to Congress, the same powers are denied to the President.

Presidentialists — those who believe that the President does hold some war-making power — believe that the Marque and Reprisal Clause is not entirely exclusive; that is, that the President does have some power to grant letters of marque and reprisal.  Their argument is that Congress has no power to control what the President can do with resources already delegated to his jurisdiction; thus, the President could grant letters of marque and reprisal.  They believe that the Marque and Reprisal Clause must be considered in light of Congress’s power over the purse (Congress’s power over pecuniary issues).  Their argument is that, since Congress has power over the purse, and not all privateering is governmentally funded, there is, in effect, a loophole: namely, that the President could grant letters of marque and reprisal that do not involve government aid.

The problem with this view is that the Constitution never specifically delegates the power to grant letters of marque and reprisal to the President (see Article II, Section 2 of the U.S. Constitution).  I think that it’s significant that there are two distinct sections in the Constitution that detail legislative power and executive power, respectively.  It seems to me that, in order to maintain the ideal separation of powers, the integrity and discretion of the separate branches’ respective jurisdictions must be honored.  I’m reminded of the following quote from James Madison, which I mentioned in my last post:

“A standing military force, with an overgrown Executive will not long be safe companions to liberty.”

Additionally, the Constitution does not say, “If there’s any question about authority, just leave it with the President”; contrariwise, the Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  In other words, the Framers are saying, “If we didn’t specifically delegate a certain power to a certain branch, don’t go and find yourself a loophole.”

A good mantra might be, “If it doesn’t say I can, then I can’t.”  If the Constitution doesn’t say that the President can do a certain thing, then it is probably safer to assume that he cannot.

I hope you’ve enjoyed learning more about U.S war-making powers as much as I have!

Keep up the good work!

TTFN!

Benjamin

Sources/References:

U.S. Constitution; Article I, Section 8:

https://constitutioncenter.org/interactive-constitution/articles/article-i

Letter of Marque definition:

https://www.google.com/search?client=safari&channel=ipad_bm&source=hp&ei=pNO5WdZV586PBIu4pegK&q=letter+of+marque+definition&oq=letter+of+marque+definition&gs_l=mobile-gws-hp.3..0i70i249k1j0i22i30k1l2.2782.10058.0.11624.28.27.0.3.3.0.281.5143.0j17j10.27.0….0…1.1.64.mobile-gws-hp..3.24.4033.0..0j5j46j0i131k1j0i3k1j0i46k1.p3nZBer0Nqs

Reprisal definition:

https://www.google.com/search?q=reprisal&ie=UTF-8&oe=UTF-8&hl=en-us&client=safari

“H.R. 3076: September 11th Marque and Reprisal Act of 2001”:

https://www.govtrack.us/congress/bills/107/hr3076/text

“Constitution Post — Article I, Section 8; Clause 11”:

https://youngpatriotsforliberty.com/2017/09/06/constitution-post-article-i-section-8-clauses-11-13/#more-2465

Heritage Foundation — *Constitution Essays*, “Marque and Reprisal”:

http://www.heritage.org/constitution#!/articles/1/essays/50/marque-and-reprisal

U.S. Constitution; Tenth Amendment:

https://constitutioncenter.org/interactive-constitution/amendments/amendment-x

More about privateering:

https://www.nps.gov/revwar/about_the_revolution/privateers.html

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