The Odd Clauses

by Jay Wexler

  The United States didn’t issue letters of marque and reprisal after the War of 1812, but until the late nineteenth century, the government still considered their use to be an active option in case of war. When it looked like the British might intervene in the Civil War on the side of the Confederacy, for example, the Union government threatened to use privateers against the interlopers, and Congress even passed a law authorizing President Lincoln to issue letters of marque, something he never ended up doing. The Confederacy, however, did issue letters of marque to private vessels, although the Union, viewing the conflict as an internal rebellion rather than a war between two sovereign states, refused to recognize these letters as legitimate. When the Union seized a ship called the Savannah, which was purportedly sailing under a letter of marque issued by the Confederacy, the Union government tried the captain and crew as pirates, much to the ire of the South. After the New York jury deadlocked, the Union decided not to retry the case, instead treating the captured crew as prisoners of war rather than pirates and ultimately exchanging them for Union prisoners of war held by the Confederacy. When the Civil War ended, the government promptly dismantled the large navy raised by the Union during the conflict, thus signaling that it still considered privateering to be preferable to raising a permanent navy. Some twenty-five years later, however, according to Professor Parrillo, the country’s wariness about building a standing navy melted away. A major program of shipbuilding began around 1890, and the idea of using privateers ceased being a plausible alternative to official navy action . . . at least until Ron Paul revived the notion in 2008.

  The Egyptian plover is a small, cute, gray and orange bird that lives near rivers in sub-Saharan Africa and, according to Wikipedia, has a call that sounds like a “high-pitched krrr-kirr-kirr.” It’s a nice bird, sure, but not a particularly unique or fascinating one when considered all by itself. What’s most interesting about the Egyptian plover, however, is that apparently it shares a bizarre symbiotic relationship with the Nile crocodile. When the plover runs into a crocodile with its mouth open, the bird will hop inside and eat little pieces of meat out from between the reptile’s teeth. The crocodile, which otherwise gets little in the way of dental hygiene, is happy to have the plover give it a teeth cleaning, and refrains from mashing the bird into a serving of delicious plover puree. Both animals reap a benefit—the plover gets an easy meaty meal, and the crocodile gets some much-needed oral sanitation work.

  Like the Egyptian plover, the letters of marque and reprisal clause has been (until recently, anyway) interesting mainly because of its relationship with a far more prominent creature, in its case, the declare war clause, the constitutional equivalent of the Nile crocodile. Here’s the full sentence containing both clauses: “The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” As I talked about above, scholars have long debated whether the president can initiate armed hostilities with other nations without congressional authorization. It turns out that a lot of this debate has centered on the meaning of the letters of marque and reprisal clause, and specifically the relationship between that clause and its crocodilian neighbor.

  Several prominent scholars have argued that the framers intended the letters of marque and reprisal clause to basically represent all forms of armed hostility short of full-out, congressionally declared war. On this theory, the framers put the two clauses right next to each other to show that all hostilities—whether they amount to actual war or instead something short of war—must be initiated by Congress and not the president. John Hart Ely might be the most prominent expert to make this type of argument. In his classic 1995 book War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath, Ely wrote that the “coupling of the war power with the power to grant letters of marque and reprisal underscores the founders’ intention to require congressional authorization of military actions that fall short of what would conventionally have been counted wars.” Notice how, to make this argument, it is necessary to construe the phrase “letters of marque and reprisal” very broadly, to cover not only authorizations from the government to private ships to fight pirates or the ships of other nations, but also any other type of armed conflict short of actual war. As another prominent writer puts it: “Letters of marque and reprisal were one way of referring to what were known as imperfect wars, special wars, limited wars—all of which constituted something less than full-scale warfare. . . . By including the Marque and Reprisal Clause in Article I, Section 8, the framers attempted to ensure that only Congress would have the power to commence armed hostilities against foreign nations.”

  Scholars on the other side of this question basically respond with something along the line of: What? Are you kidding? According to these critics, “letters of marque and reprisal” refer only to letters that authorize private ships to go fight other ships, not every possible kind of special, limited, imperfect war under the sun. If the authors of the Constitution had wanted it to say the latter, according to these writers, they would have been a lot clearer about it. As John Yoo reasonably argues (not everything he says is bewilderingly bananas): “Surely this goes too far. . . . Letters of marque and reprisal do not clearly refer to the use of the state’s own military against another state. If the Framers had the odd clauses 133 intended to place strict regulations on the public use of force in undeclared war situations, we can reasonably have expected them to use more direct, relevant language to express their meaning.” Or, as a student at the University of Chicago Law School who then went on to be a deputy at OLC in the Bush administration explained, letters of marque were characterized by three features—an essentially commercial purpose (from the private ship’s perspective), a lack of government funding, and legal control by prize courts—all of which are missing from the kinds of subwar “wars” that scholars like Ely have tried to fit under the letters of marque and reprisal clause.

  I think the pro–executive branch “Yoo school” has the better of this argument, but the pro-Congress school is more persuasive when it talks about the letters of marque and reprisal clause in relation to another constitutional crocodile—the commander in chief clause. Recall that the second main controversy when it comes to foreign affairs under the Constitution is whether the president has exclusive control over the prosecution of hostilities once they have begun. Here, the argument based on the letters of marque and reprisal clause goes something like this: At the time of the nation’s founding, granting letters of marque and reprisal was an extremely important element of carrying out a war, as evidenced by the fact that many more ships during the Revolution were captured by American ships sailing with such letters than by ships sailing as part of the American Navy. If the pro-executive people are right about the framers wanting the president to have exclusive power to prosecute hostilities, then wouldn’t we expect the framers to have given the letters of marque power to the president? Indeed, in England, the executive did have this power. But the framers instead chose to give the power to grant letters of marque and reprisal to Congress, thus signifying that they intended Congress to have at least some control over how the country carries out its wars. The commander in chief clause, then, does not give the president the exclusive power over the prosecution of hostilities.

  A number of scholars have advanced this sort of argument. Jules Lobel of the University of Pittsburgh Law School, for example, has argued, “By providing Congress with the authority to issue such letters, the Framers gave Congress not only power over the initiation of warfare, but also over the conduct of naval warfare, in particular the power to determine who would be authorized to fight on behalf of the government, and the scope of and limitations of their authorization.” Ingrid Brunk Wuerth of Vanderbilt concurs. She points out that the Articles of Confederation had authorized the executive (at that time, the states) to issue letters of marque during wartime but not during peace. The fact that the framers of the Constitution explicitly reje
cted this scheme and gave Congress the authority to issue letters during both peacetime and wartime, suggests that the framers were fine with creating “encroachments on the president’s power to wage war.” According to Wuerth, when they considered a foreign affairs power that would be potentially problematic under international law, the framers tended to give that power to Congress, rather than the president. Speaking of the letters of marque and reprisal clause (as well as the “captures clause,” which is right next to it), Wuerth writes: “Contrary to many general formulations of the commander in chief power, the text of the Constitution did not leave to the president all decisions of tactics, military strategy, or deployment of force. Precisely where such decisions were most likely to violate international law and have significant diplomatic ramifications, the Constitution vested them in Congress.”

  Torture, by the way, is a violation of international law.

  So, what about Ron Paul’s suggestion to revive letters of marque to fight pirates in Somalia? This wasn’t actually the first time Paul has brought the idea up. Within a month of the 9/11 attacks, Paul proposed a bill that would have authorized letters of marque to be issued in response to “acts of air piracy.” He proposed another similar bill in 2007; that legislation would have given the president the authority to grant letters of marque to “privately armed and equipped persons and entities . . . to employ all means reasonably necessary to seize outside the geographic boundaries of the United States and its territories the person and property of Osama bin Laden . . . and of any conspirator with Osama bin Laden and al Qaeda who are responsible for the air piratical aggressions and depredations perpetrated upon the United States of America on September 11, 2001.” Like Paul’s suggestion for dealing with Somali pirates, neither of these proposed bills having to do with “air piracy” made it very far in the legislative process.

  Would granting letters of marque help the nation in its fight against sea piracy off the coast of Somalia? The answer turns on some very complicated concepts from the field of naval science. As experts in the field will tell you, the success of any given naval mission depends on the relationship of several key variables, including artillery power (A), flotilla size (S), mean rotation capacity of flotilla (R), and median nautical distance to relevant command centers (D). Scientists have expressed the overall “Command of the Sea” (C) metric in terms of these variables, as follows: C = Σ (AS/DR2)/Ω, where Ω stands for Ossinthrop’s number, which every first-year naval strategy graduate student learns is 0.612387662.

  Oh, wait a minute, what am I talking about? I don’t know the first thing about naval science or strategy. I just made all that up.

  In fact, I don’t have any idea whether using privateers to fight pirates near Somalia would constitute sound naval policy. I mean, I would be worried about setting a bunch of gung-ho guys with maybe not all that much training in pirate fighting loose on the high seas with no supervision and a license to kill, particularly given our recent Blackwater-goes-haywire debacle in Iraq. I also agree with one critic of Paul’s plan who wondered: “What happens when a ship flying under Congress accidentally takes out an aid ship bound for Somalia? At what time does an act seem pirate-like enough to cross the line? Do we really want these snap judgments being made on the fly in waters thousands of miles away from Washington? This is not Johnny Depp we’re dealing with.” But I am far from being an expert in this area. Who knows, maybe the government could solve these problems by providing adequate training and other safeguards. At least one military expert has suggested, in a sophisticated and balanced piece in an academic law journal, that with their “cost efficiency, flexibility, and technical skills,” “[m]aritime security contractors can be part of the solution to piracy—especially if they are properly licensed and regulated through letters of marque.”

  What I do believe is that under the Constitution, issuing letters of marque and reprisal to fight piracy would be legally authorized. The situation is a little different now from the old days, because, as one commentator has put it, these days pirates “don’t really have treasure chests, and their money is tied up in Swiss Bank accounts.” To attract privateers, then, the government would have to offer up some significant reward money for captured pirates. There’s also a question about whether Congress could delegate its power to grant letters of marque to the president, like Ron Paul has proposed. This might be one of those powers that has to stay with the branch provided for by the Constitution itself. And finally, there are international law issues to be concerned about, particularly given that most of the world voluntarily vowed over 150 years ago not to use privateers to fight pirates or anyone else. Still, though, the core idea that Congress could authorize private vessels to fight pirates on the government’s behalf seems sound.

  Imagine if scientists from an ornithology lab at the University of Texas published a paper concluding that we might be able to learn a lot about preventing human diabetes from studying the endocrine system of the Egyptian plover. All of a sudden, our interest in the plover would be transformed—no longer would we be interested in the bird just because of its relationship with the crocodile, but we would start studying the plover in its own right—for its own ploverness, its inherent ploverocity. In a way, Ron Paul’s revival of the letters of marque and reprisal clause is sort of like this Egyptian plover scenario. Scholars have been interested in the clause for a long time because of what it might say about Congress and the president’s respective powers under the declare war and commander in chief clauses. It remains interesting for that reason today. But Paul has suddenly made the clause interesting again in its own right. Could we really give letters of marque to private ships to fight pirates? Should we? What would these letters say, exactly? So far, Paul’s proposals haven’t gone anywhere, but under slightly different circumstances—more pirates, a navy engaged in war elsewhere, a different political climate—they might. As the letters of marque and reprisal clause story suggests, the line between constitutional songbird and constitutional crocodile may turn out to be an ephemeral one indeed.

  CHAPTER 8

  The Title of Nobility Clauses

  Equality

  No Title of Nobility shall be granted by the United States: And no Person Holding any Office . . . shall, without the consent of Congress, accept of any . . . Title, of any kind whatever, from any King, Prince, or foreign state.

  Article I, Section 9

  No State shall . . . grant any Title of Nobility.

  Article I, Section 10

  When Norman Schwarzkopf, commander of the allied forces in the first Gulf War, accepted an honorary knighthood from the queen of England in 1991, he may or may not have violated the Constitution. Most Americans, however, probably couldn’t have cared less. After all, as a non-Brit, Schwarzkopf did not have to kneel before the queen or get his shoulder tapped with her royal sword. Foreigners who receive such an honor aren’t even entitled to be called “dame” or “sir,” although presumably plenty of people were used to calling Schwarzkopf “sir” already. In any event, Schwarzkopf was by no means the first US citizen to be knighted. Ronald Reagan, for instance, was knighted in 1989. Caspar Weinberger got his knighthood the year before. Eight military officers had received similar honors from the Crown prior to Schwarzkopf. And plenty of famous Americans from outside Washington have received knighthoods from all sorts of places over the years, from Jerry Lewis (France) to Mohammad Ali (Morocco) to Bob Hope (the Catholic Church). Still, though, there was something different about Schwarzkopf’s knighthood. Unlike Bob Hope or Jerry Lewis, or even Reagan or Weinberger, who were retired when they received their honors, Schwarzkopf was still an officer of the United States in active service. Did his acceptance of the queen’s honor therefore violate Article I, Section 9, of the Constitution? At least one skeptical journalist tried to find out, but he apparently didn’t get very far. Christopher Hitchens, writing in the Nation shortly after Schwarzkopf’s ceremony, explained that he had called the clerks of both houses of Congress, th
e Senate library, and various other officials to see if Congress had consented to Schwarzkopf’s knighthood. Although someone eventually cited a congressional pronouncement that might be read to count as such consent, most people Hitchens talked to apparently had no idea such agreement was even required. “While it may not be possible to state with precision that General Schwarzkopf violated the Constitution by toadying to Queen Elizabeth,” Hitchens concluded, “it is a sure thing that nobody in authority knows or cares whether he did or not.”

  One of the enduring themes of the modern US Constitution is that all people are created equal. Of course, this was not the case when the Constitution was first written. Slavery was not only accepted practice, but it was also explicitly recognized in the Constitution itself. It wasn’t until 1865, in the aftermath of the Civil War, that the Thirteenth Amendment was added to the Constitution, thereby abolishing slavery throughout the nation. Beyond slavery, moreover, women were also not given full rights as citizens, and it wasn’t until 1920 that the states ratified the Nineteenth Amendment, finally giving women the right to vote. The Thirteenth and Nineteenth amendments were hardly panaceas, however. Inequality, in all sorts of forms, continued to persist long after these legal changes, and real equality remains elusive even today.