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

INTRODUCTION 150 I. METHODOLOGICAL ISSUES 156 A. Interpretive Theories 156 B. Evolution in Common and International Law 157 II. ORIGINS OF THE CLAUSE 159 A. The Drafting 160 B. The Double Redundancy 163 C. Uniqueness of Piracy 165 D. Summary 167 III. POLICY OF THE CLAUSE 168 A. Purposes 168 B. Background Assumptions 171 C. Summary 174 IV. MURDER ON THE HIGH SEAS 174 A. Grand Jury Charges 176 B. John Marshall and Jonathan Robbins 179 C. The Crimes Act in the Supreme Court 185 D. Summary 192 V. THE SLAVE TRADE 194 A. The Constitution in Congress 194 B. The Antelope 197 CONCLUSION 198 INTRODUCTION Several federal statutes criminalize conduct by foreigners that has no relation to the United States. Some of these measures purportedly exercise Congress's power to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."1 This raises a serious and previously unexplored question about the meaning and jurisdictional breadth of the Define and Punish Clause: Does the clause authorize Congress to legislate for the rest of the world? This question intersects with several pressing controversies. As European nations have increasingly begun to exercise universal jurisdiction over various crimes, there is pressure on the United States to follow suit.2 Aliens have increasingly turned to U.S. courts to adjudicate purely foreign disputes.3 Also, the interplay between international law and constitutional law has become a much debated issue.4 A better understanding of the Define and Punish Clause will illuminate each of these controversies:5 in one breath the clause addresses universal jurisdiction (piracies), extraterritorial crimes (felonies on the high seas), and violations of international law. This Article demonstrates that the Define and Punish Clause limits Congress's power to criminalize conduct that lacks a U.S. nexus. Two possible interpretations emerge from examining the evidence. At most, Congress can legislate universally only when international law has made punishment of the regulated conduct universally cognizable. In the narrowest interpretation, Congress's universal jurisdiction powers under the clause are restricted solely to piracy. In either case, the restriction comes not from the independent force of international law but from the Constitution itself, which incorporates international law by reference in Clause Ten. This conclusion suggests that at least one important criminal law currently in force and several others pending in Congress exceed Congress's Article I competence. Moreover, it has cautionary implications for Alien Tort Statute (ATS) cases against foreign officials for abuses committed against their own nationals. Understanding the limits on universal jurisdiction under the Define and Punish Clause requires exploring its particularly obscure "Piracies and Felonies" provision.6 This inquiry also has important ramifications for the scope of the more often used "Offenses" power. Because maritime matters were so central to the life of the early Republic, almost all discussions of universal jurisdiction from the Founding Era until the twentieth century involved matters on the "high seas," and thus primarily implicate those powers. The Piracies and Felonies provision has direct modern relevance: Congress has relied on it to enact America's most used criminal universal jurisdiction statute, the Maritime Drug Law Enforcement Act (MDLEA). …