INTRODUCTION I. TEXT A. Surplusage and structure B. Alternative interpretations II. EARLY CONSTITUTIONAL HISTORY A. The definition of "define" B. The power to punish vaguely defined offenses C. The clause's purpose D. The power to define "felonies on the high seas" and "piracy" 1. Felonies 2. Piracies III. NEUTRALITY A. Historical background B. The constitutional basis for American neutrality legislation 1. Pre-Neutrality Act understanding of neutrality 2. The Neutrality Act's legislative and post-enactment history C. The Neutrality Act and the law of nations 1. Respect for neutral territory 2. Prohibition on foreign enlistment 3. Prohibition on fitting out and arming foreign vessels 4. How much did the United States care about the law of nations? D. Lessons from the Neutrality Act IV. SUPREME COURT PRECEDENT ANALYZING THE DEFINE AND PUNISH CLAUSE A. Arjona B. Quirin and Hamdan C. Lessons V. WHAT CAN CONGRESS PUNISH? A. Type two offenses B. Type three offenses C. Type four offenses 1. Foreign relations deference 2. What can't Congress punish? VI. CONCLUSION INTRODUCTION
In 1865, the United States tried and convicted several people for conspiracy to assassinate under a statute giving jurisdiction for offenses against the law of war to military commissions. (1) One hundred and forty years later, the Supreme Court set aside a military commission's conspiracy conviction under a similar law on the grounds that conspiracy to violate the law of war is not an offense against the law of war. (2) The relevant statutory language remained the same, but international law had changed. Congress pegged the statute to international law, so the statute no longer authorized prosecutions for conspiracy in military commissions.
But suppose that Congress had instead proscribed particular law-of-war offenses, including conspiracy. This hypothetical statute would have mirrored international law in 1865 but not in 2005. Does Congress still have the power to define and punish conspiracy as an offense against the law of nations, or did Congress lose this power when international law changed?
The answer to this question turns on whether Congress enjoys a separate power to define offenses against the law of nations, and if so, how broad that power is. (3) This issue matters. The government's power to try Guantanamo detainees in military commissions depends in part on the scope of the Define and Punish Clause. (4) A lurking yet expansive criminal punishment power would also allow Congress to undo some of the Supreme Court's recent federalism decisions. To take just one example, if the clause allows Congress to enact civil sanctions as well as criminal ones, a new Violence Against Women Act might be sustained as punishing international human rights violations. (5)
This Articles argues that Congress possesses a separate and broad power to define the offenses against the law of nations that it chooses to punish. Congress may criminalize private conduct that does not itself violate the law of nations. In fact, the Define and Punish Clause empowers Congress to criminalize any conduct if the United States has any obligation to suppress that conduct under either an extant or developing rule of customary international law.
This view swims against the tide of scholarly (6) and judicial (7) opinion and implies that Congress has not made use of a significant source of constitutional authority. But the Constitution's text and structure, early constitutional history, Supreme Court precedent, and foreign relations law all point in favor of interpreting the Define and Punish Clause broadly. This Article addresses each source of evidence in turn. Section 1 argues from the Constitution's text that Congress enjoys a separate power to define the offenses against the law of nations that it punishes. Sections II-V then flesh out the scope of that power. Section II demonstrates that the Framers and early political leaders believed that the power to define offenses against the law of nations included the power to create new offenses that other countries did not recognize. Section III shows that early American neutrality law punished offenses against the law of nations that were not recognized as such under international law. Section IV examines the Supreme Court's analysis of the Define and Punish Clause. The few cases on the subject suggest that Congress's power to define is not pegged to international law. Part V adds a foreign-relations-law perspective and explains the specific conditions that must exist before Congress may enact criminal legislation under the Define and Punish Clause.
The Constitution's text and structure suggest that Congress enjoys a power to define offenses against the law of nations separate from its power to punish those offenses. This Section, however, does not flesh out how broad this power is--Sections II-V cover that. This Section argues only that Congress has a separate power to define.
Surplusage and structure
The text and structure of the Constitution provide two independent reasons to believe that Congress has a power to define separate from its power to punish. First, consider the clause itself: "Tine Congress shall have Power ... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." (8) If the Define and Punish Clause gave Congress no powers apart from a power to punish, then the words "define and" would be superfluous. (9) The Supreme Court made this point in an 1820 case concerning the Define and Punish Clause." (10) Reading the Define and Punish Clause as giving Congress a separate power to define avoids this surplusage problem.
That problem would not exist if the Framers attached little importance to the phrase "define and punish" and used it as a single, legally redundant phrase, like "aid and abet" today. (11) But the Philadelphia Convention chose the words with care and settled on the phrase "define and punish" only after debating the precise wording. The Committee of Style had originally drafted the clause as, "To define & punish piracies and felonies on the high seas, and punish offenses against the law of nations." (12) Gouverneur Morris, who spoke the most at the Convention and was likely most responsible for the text's final style, (13) changed the clause to its current form by proposing to strike the second "punish," giving Congress the power to define offenses against the law of nations too. But his motion only passed by a six-to-five vote (the Convention voted by state delegations, not individual delegates). (14) This one-vote margin would be hard to explain if the Framers considered the power to define and punish to be no different than the power to punish.
Second, two other constitutional provisions give Congress authority to penalize private acts, but neither give Congress the power to define those offenses. Congress has the "Power ... To provide for the Punishment of counterfeiting the Securities and current Coin of the United States" (15) and the "Power to declare the Punishment of Treason," (16) but not the power to define those offenses. That difference in language suggests that Congress has more discretion in defining offenses against the law of nations than it has in defining counterfeiting and treason. (17)
Of course, selective enumeration sometimes implies nothing. For instance, the Constitution only enumerates three criminal punishment powers, yet Congress, pursuant to the Necessary and Proper Clause, may punish unenumerated offenses with "some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States." (18) The Framers likely enumerated criminal punishment powers out of fear that the authority to punish those acts might not be incidental to Congress's other powers.
But selective enumeration of the power to define is different. The power to punish any offense presupposes the power to define what conduct is criminal. Enumerating the power to define would been unnecessary unless the Framers thought the power to define vested Congress with greater creative powers than the power to punish. The Define and Punish Clause, therefore, likely provides Congress with a separate power to define piracy, felonies on the high seas, and offenses against the law of nations.
Three alternative interpretations of the Define and Punish Clause could undercut the preceding arguments. First, the power to define might really be a duty to define. That is, the word "define" might just prevent Congress from passing criminal laws that do not define offenses against the law of nations clearly enough to give the people fair notice. Second, the Define and Punish Clause might be an anti-common-law provision written to ensure that Congress takes responsibility for punishing these offenses through legislation rather than forcing the judiciary to do so with common law crimes. Third, perhaps the power to define is really a power to provide a national definition for offenses against the law of nations that is binding on the states if they decide to punish the same conduct.
But these possible interpretations are probably wrong. First, the Constitution describes the power to define as a "power," not a duty, implying that it gives Congress "Command; authority; dominion." (19) Like the Necessary and Proper Clause, the Define and Punish "[C]lause is placed among the powers of congress, not among the limitations on those powers[,]" and "[i]ts terms purport to enlarge, not to diminish the powers vested in the government." (20) This interpretation would also make the power to define superfluous because Congress already has this duty under the Due Process Clause. (21) Finally, in United States v. Smith, Justice Livingston argued in a dissent in favor of the duty-to-define interpretation, but no Justice joined his opinion. (22) A majority of the Supreme Court held that the power to define does not imply...