The 'Define and Punish' Clause and the Limit of Universal Jurisdiction

57 Pages Posted: 17 Apr 2008 Last revised: 26 Feb 2009

See all articles by Eugene Kontorovich

Eugene Kontorovich

George Mason University - Antonin Scalia Law School

Date Written: April 17, 2008


This Article examines whether the Define and Punish clause of the Constitution empowers Congress to criminalize foreign conduct unconnected to the United States. Answering this question requires exploring the Constitution's Piracies and Felonies provision. While it is hard to believe this can still be said of any constitutional provision, no previous work has examined the scope of the Piracies and Felonies powers. Yet the importance of this inquiry is more than academic. Despite its obscurity, the Piracies and Felonies power is the purported Art. I basis for a statute currently in force, which represents Congress's most aggressive use of universal jurisdiction. Moreover, the limits on Congress's power under the Felonies power are directly applicable to the more widely-used power to punish Offenses Against the Law of Nations.

The Article shows that the Define and Punish Clause only clearly allows Congress to criminalize purely foreign conduct in the case of piracy. Certain interpretations of the clause would also allow Congress to universally legislate regarding other crimes that, like piracy, international law clearly treats as universally cognizable. But the clause certainly does not allow regulating foreign conduct that has no connection to the U.S. if it is not a universal crime in international law. Even the liberal interpretation of the provision casts serious doubt on the constitutionality of several major statutes applying UJ to drug and terrorism-related offenses that do not involve the U.S. in any way. The stricter interpretation would foreclose much of the foreign litigation under the Alien Tort Statute.

The analysis begins with the text of Clause 10, which contains a striking double redundancy. All piracies are felonies, and also offenses against the law of nations. Piracy, however, was the only crime that fell under universal jurisdiction. By singling out Piracy, Clause 10 refers to the one thing that makes it different from other felonies and offenses. This suggests that the clause gives Congress the power to punish piracy the same way as all other nations did - universally. But by listing piracy separately from the two categories of which it is a part, the Constitution indicates that Congress's universal jurisdiction powers over piracy should not be imputed to other felonies or offenses.

This reading of the clause comports with how it was understood by the Framers and the jurists of the early Republic. The Article brings together an exhaustive array of sources bearing on the jurisdictional scope of Clause 10. It charts its origins and purposes in the Articles of Confederation, its reception at constitutional convention and ratifying process, and the subsequent understanding of it by the leading legal authorities of the time. The Article looks to the views not only of jurists like James Wilson, John Marshall and Joseph Story, but also to the interpretation put on the clause by the executive and legislative branches. These authorities had to confront the limits of the clause against the backdrop of some of the most daunting foreign affairs challenges of the day, such as the preservation of U.S. neutrality, and the campaign against the transatlantic slave trade. Almost without exception, the sources support the view that Congress could only punish purely foreign conduct in the case of piracy.

Keywords: universal jurisdiction, extraterritorial jurisdiction, Define and Punish Clause, Maritime Drug Law Enforcement Act

JEL Classification: K19, K33, K42

Suggested Citation

Kontorovich, Eugene, The 'Define and Punish' Clause and the Limit of Universal Jurisdiction (April 17, 2008). Northwestern University Law Review, Vol. 103, No. 1, Northwestern Public Law Research Paper No. 08-11, Available at SSRN:

Eugene Kontorovich (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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