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Defining and punishing offenses under treaties.

ARTICLE CONTENTS

INTRODUCTION
  I. THE ORIGINAL UNDERSTANDING OF THE OFFENSES CLAUSE
      A. The Meaning of the "Law of Nations"
      B. The Historical Context of the Offenses Clause
      C. Drafting the Offenses Clause
      D. Ratification Debates
      E. Constitutional Design

 II. CONGRESSIONAL AND JUDICIAL INTERPRETATIONS
      A. Congress's Understanding of the Offenses Clause
      B. Supreme Court Precedent

III. THE SIGNIFICANCE OF TREATIES IN MODERN INTERNATIONAL LAW

 IV. IMPLICATIONS FOR IMPLEMENTING LEGISLATION
      A. Four Categories of Treaties
         1. Treaties That Directly Prohibit Conduct by Individuals
         2. Treaties That Require Domestic Legislation Punishing
            Conduct
         3. Treaties That Mandate Certain Conduct but Do Not Expressly
            Require Punishment for Violations
         4. Treaties That Authorize Punishment of Certain Conduct
      B. Congress's Discretion Under the Offenses Clause
CONCLUSION


INTRODUCTION

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with the United States's international legal commitments. (1) In recent years, Congress's power to implement treaties has received particular attention from both the legal academy and the Supreme Court. Scholars have debated the application of federalism principles to treaties and whether the combination of the Article II treaty power and the Necessary and Proper Clause gives Congress constitutional authority to regulate matters that would otherwise lie beyond its Article I powers. (2)

Last Term, these debates reached the U.S. Supreme Court in Bond v. United States. (3) The defendant argued that Congress lacked the power to apply the Chemical Weapons Convention Implementation Act of 1998 (4) to her attempt to poison a romantic rival with toxic chemicals.s In the end, the Court avoided the constitutional question, holding as a matter of statutory interpretation that the Act did not reach Bond's conduct in the absence of "a clear indication that Congress meant to reach purely local crimes." (6) Justices Scalia and Thomas, on the other hand, would have held that the Necessary and Proper Clause does not give Congress the power to implement treaties, (7) while Justices Thomas, Scalia, and Alito were prepared to impose subject-matter limitations on the treaty power. (8) Justice Thomas predicted that "[gjiven the increasing frequency with which treaties have begun to test the limits of the Treaty Power," the chance to address the constitutional limits on Congress's authority "will come soon enough." (9)

This Article contributes to the ongoing debate by identifying and comprehensively exploring the role of the Offenses Clause as an additional source of congressional authority to implement certain treaty commitments. That clause gives Congress the power "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." (10) Past scholarship has commonly assumed that the phrase "the Law of Nations," as used in the Offenses Clause, refers exclusively to customary international law. (11) Under this reading, Congress may rely on the Offenses Clause to legislate regarding a rule of customary international law, but if Congress wishes to enact legislation to implement a treaty, it must invoke some other authority, such as its commerce power or the Article II treaty power coupled with the Necessary and Proper Clause. This Article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional and complementary source of authority for Congress to implement certain treaty commitments.

We attribute the conventional and narrow reading of the Offenses Clause to the intensive focus of foreign relations law scholars over the past thirty-five years on the Alien Tort Statute (ATS). (12) The ATS uses the phrase "law of nations" to refer to the unwritten law of nations (13) in contradistinction to treaties, providing district court jurisdiction over any civil action "by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (14) Most scholars have simply assumed that the phrase "law of nations" in the Offenses Clause must have the same limited meaning that it has in the ATS. (15) Yet this is a dangerous assumption. The term "international law," for example, is generally understood today to include both customary international law and treaties, (16) despite the fact that it is sometimes used to refer more narrowly to customary international law alone. (17)

The same was historically true of the phrase "law of nations." The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called "the conventional law of nations." The principal purpose of the Offenses Clause--to facilitate compliance with the United States's international commitments--also supports reading its reference to the "law of nations" to include treaties. And reading the phrase broadly is most consistent with the pre-1787 history, as well as the drafting and ratification of the Offenses Clause. In other words, the most accurate modern translation of the "law of nations" as used in the Offenses Clause into contemporary parlance is not "customary international law" but rather "international law," which includes both customary international law and treaties. (18)

The Offenses Clause thus formed part of a comprehensive effort to ensure that Congress could enforce all international law, and to free the United States from having to rely on enforcement by the several States. The Framers accomplished this by creating an express enumerated power to punish in the Offenses Clause that overlaps with, and complements, Congress's authority under the Commerce Clause (19) and under the Necessary and Proper Clause coupled with the Article II treaty power. (20) Indeed, the Framers considered the power to penalize individual conduct to be such an important part of the United States's overall authority to enforce international law that the power to define and punish offenses against the law of nations in the Offenses Clause is one of just three enumerated powers in the Constitution that expressly grant Congress the power to punish. (21)

The understanding that the Offenses Clause allows enforcement of all international law has not been entirely lost. Despite the prevailing view in the academy, Congress, the executive branch, and the Supreme Court have shared this understanding of the Offenses Clause through most of our nation's history. When enforcing treaties, Congress has not always specified the source of its authority. But when it has, it has often invoked the Offenses Clause, at times in conjunction with its powers under the Commerce Clause and the Article II treaty power. Indeed, in recent years, Congress has increasingly invoked the Offenses Clause as authority for legislation to enforce treaties. (22) Reading the Offenses Clause to reach treaties is also consistent with past decisions of the Supreme Court, which have focused on the Clause's core purpose of furthering the United States's "vital national interest in complying with international law" (23) and have expressly recognized that Offenses Clause legislation can include enforcement of treaties. (24)

Reading the Offenses Clause to extend to both treaties and customary international law is as important today as it was at the Founding. International lawmaking is increasingly dominated by international agreements, including agreements that codify and expand upon preexisting norms of customary international law. It makes little sense to think that Congress could exercise authority under the Offenses Clause to punish assaults against diplomats when their protection under international law rested exclusively on custom, but that when the United States ratified the Vienna Convention on Diplomatic Relations in 1972, Congress was deprived of the authority to implement those more detailed treaty obligations through the Offenses Clause and had to rely on other constitutional grants of legislative power.

Our argument responds to some, though not all, of the constitutional questions raised by the concurring opinions in Bondfs Justice Scalia (joined by Justice Thomas) would have held that the Necessary and Proper Clause gives Congress the power to help the President make treaties but not to implement them. (26) Justice Scalia's argument was both textual and structural. With respect to text, he noted that the Necessary and Proper Clause gives Congress authority "[t]o make all Laws which shall be necessary and proper for carrying into Execution" powers vested in the President, (27) but that Article II vests in the President only the power "to make Treaties." (28) With respect to structure, Justice Scalia argued that his reading was necessary to avoid a "vast expansion of congressional power." (29) Particularly if "the Treaty Clause comes with no implied subject-matter limitations," (30) Congress would be "only one treaty away from acquiring a general police power." (31) Others have explained why this exceedingly narrow reading of the Necessary and Proper Clause and the treaty power is mistaken. (32) Our argument simply renders Justice Scalia's reading moot with respect to the implementation of certain treaty obligations, because we identify an Article I basis for Congress's power in addition to the Commerce Clause. (33)

Justice Thomas (joined by Justices Scalia and Alito), and Justice Alito writing for himself, would also have recognized subject-matter limitations on the treaty power by holding that "the Treaty Power can be used to arrange intercourse with other nations, but not to regulate purely domestic affairs." (34) The Supreme Court, however, has long held that the treaty power "extends to all proper subjects of negotiation with foreign governments." (35) As Oona Hathaway and her co-authors have shown, the drafters of the Constitution understood the need for flexibility and deliberately refrained from imposing specific subject-matter constraints on the treaty power; they also intended the political branches, not the courts, to police the appropriate subject matter for treaties. (36) To the extent that subject-matter limitations on treaties exist, however, they would also apply to our reading of the Offenses Clause. Congress has no power to define and punish offenses under a treaty unless the treaty is valid in the first place.

Our argument has implications for a range of other contemporary contexts--from piracy to international counter-narcotics activity--in which Congress has adopted penal legislation to implement treaties. (37) As with other enumerated powers, Congress enjoys some discretion in determining how to enforce international law by defining and punishing offenses against treaties. We identify four categories of treaties that Congress may implement under the Offenses Clause: (1) treaties that operate directly on individuals to prohibit conduct; (2) treaties that require domestic legislation punishing certain conduct, such as the Convention Against Torture and the Chemical Weapons Convention; (3) treaties that clearly proscribe certain conduct, without expressly mandating punishment for its breach, such as the Vienna Convention on Consular Relations; and (4) treaties that authorize, but do not require, punishment of certain conduct, such as the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

I. THE ORIGINAL UNDERSTANDING OF THE OFFENSES CLAUSE

Modern international law is typically divided into two categories-international agreements and customary international law. (38) Modern scholars have tended to impose the same two-part division on historical sources, assuming that since "treaties" are clearly international agreements, the "law of nations" must refer to the antecedents of modern customary international law, which today "results from a general and consistent practice of states followed by them from a sense of legal obligation." (39) As Andrew Kent representatively puts it, "Today's customary international law is the closest modern analogue of the eighteenth-century 'law of nations.'" (40) This assumption has, in turn, been superimposed on the Offenses Clause, for which scholars likewise have typically assumed that the Constitution's reference to the "law of nations" must correspond to customary international law. (41) Scholars have noted that the Constitution addresses "treaties," "agreements," and "compacts" elsewhere, and they have assumed that the Constitution's treatment of codified international law is limited to those provisions. Thus, for example, Eugene Kontorovich writes: "The Treaty and Offenses Clauses separately address the two primary sources of international law. This dichotomy suggests that the Offenses Clause becomes relevant only when the United States is not party to a treaty that would authorize the relevant legislation." (42) The common assumption in the academy that the Offenses Clause is limited to customary international law has been bolstered by the fact that the founding generation sometimes did use the phrase "law of nations" when referring to unwritten international law, notably in the Alien Tort Statute, which has been the focus of most recent academic scholarship regarding the "law of nations." (43)

We challenge the conventional wisdom by placing the Offenses Clause's reference to the "law of nations" into a broader context. Drawing on the dominant international law writers familiar to the Framers, as well as the writings of the Framers themselves, we show that the eighteenth-century conception of the "law of nations" was significantly different from the modern concept of customary international law and encompassed as many as four different categories of international law, including treaties. (44) The broader understanding of the "law of nations" is also consistent with the purposes of the Offenses Clause, which was a direct response to one of the significant deficiencies of the Articles of Confederation--the States' unwillingness to discharge the Nation's international commitments, including its commitments under treaties. The Offenses Clause grew out of a 1781 Resolution of the Continental Congress recommending that the States provide "punishment" for "offences against the law of nations," including specifically "infractions of treaties." (45) The specific history of the Clause's drafting and ratification also supports its application to treaties. We conclude that the most accurate modern translation of the "law of nations" as used in the Offenses Clause is not "customary international law" but rather "international law," which today includes both customary international law and treaties.

A. The Meaning of the "Law of Nations "

At the Founding, the "law of nations" was generally used not to refer narrowly to unwritten international law, but to refer more broadly to all of international law. The two authorities that the founding generation consulted most frequently--Emmerich de Vattel's Law of Nations and William Blackstone's Commentaries on the Laws of England--both used "law of nations" in this comprehensive sense. Vattel divided the law of nations into four categories: (1) the necessary law of nations; (2) the voluntary law of nations; (3) the conventional law of nations; and (4) the customary law of nations. (46) The "necessary law of nations" was based directly on natural law. It was immutable and binding, but only internally upon the conscience of the sovereign. (47) The "voluntary law of nations" was also based on natural law, but it created external rights and duties. It was also not "voluntary" in the modern sense of the word, for nations were obligated to consent to it. (48) For Vattel, the voluntary law of nations was the most important category, and most of the rules discussed in his treatise fell within this category. (49) The "customary law of nations" was based on state practice, like today's customary international law, but with the important difference that nations were free to withdraw from particular rules. (50)

Finally, there was the "conventional law of nations," based on express consent and consisting of treaties. Vattel explained:
   The various agreements which Nations may enter into give rise to a
   new division of the Law of Nations which is called conventional, or
   the law of treaties. As it is clear that a treaty binds only the
   contracting parties the conventional Law of Nations is not
   universal, but restricted in character. (51)


Elsewhere, Vattel observed that "States, like individuals, can acquire rights and contract obligations by express promises, by compacts and by treaties, from which there results a conventional Law of Nations particular to the contracting parties." (52) Another prominent eighteenth-century writer, Jean-Jacques Burlamaqui, likewise maintained that "[t]he subject of public treaties constitutes a considerable part of the law of nations." (53)

William Blackstone also included treaties within his definition of the law of nations. "The law of nations," he wrote, "must necessarily result from those principles of natural justice, in which all the learned of every nation agree: or they depend upon mutual compacts or treaties between the respective communities." (54) In short, as used by Vattel, Blackstone, and others, the concept of the "law of nations" had a meaning closer to the modern concept of "international law," which includes both treaties and custom, than to "customary international law," which constituted only one part of the law of nations.

Individual members of the founding generation shared this approach and repeatedly referred to the law of nations as including treaties in the years both before and after the 1787 Convention. Representing the British defendants in the famous 1784 case of Rutgers v. Waddington, Alexander Hamilton expressly invoked Vattel, explaining to the court that "[t]he positive or external law of nations [is] subdivided into the voluntary[,] the conventional[,] and the customary." (55) James Iredell similarly relied on Vattel in preparing a 1791 memorandum commenting on Attorney General Randolph's report on the judiciary. (56) "The Conventional Law of Nations," Iredell explained, "is that part of the Law of Nations arising from Treaties; which when made according to the constitutional power of the respective Countries is undoubtedly binding on the People of both." (57) And Thomas Jefferson, giving his opinion as Secretary of State in 1793 on whether the United States could renounce its treaties with France --an opinion that relied heavily on Vattel, as well as other writers --observed: "The Law of nations, by which this question is to be determined, is composed of three branches. 1. The Moral law of our nature. 2. The Usages of nations. 3. Their special Conventions." (58)

James Wilson served at the Constitutional Convention on the Committee of Detail, which produced the Offenses Clause and took an active role in the debates over its language during August and September 1787. (59) In lectures on law delivered in 1790 and 1791, shortly after ratification and while Wilson was a Justice of the Supreme Court, he explained that "[njational treaties are laws of nations, obligatory solely by consent," (60) and, again, that "there is one part of the law of nations ... which is founded on the principle of consent: of this part, publick compacts and customs received and observed by civilized states form the most considerable articles." (61) Instructing the grand jury in Henfield's Case in 1793, Justice Wilson stated: "[T]here are laws of nations which are founded altogether on human consent; of this kind are national treaties." (62)

Justice Samuel Chase's 1796 opinion in Ware v. Hylton (63) captured the understanding of the founding generation that treaties were part of the law of nations:
   The law of nations may be considered of three lands, to wit,
   general, conventional, or customary. The first is universal, or
   established by the general consent of mankind, and binds all
   nations. The second is founded on express consent, and is not
   universal, and only binds those nations that have assented to it.
   The third is founded on TACIT consent; and is only obligatory on
   those nations, who have adopted it. (64)


Indeed, the Supreme Court's use of the phrase "conventional law of nations" continued into the nineteenth century. (65) Leading nineteenth-century treatise writers, including Kent, Wheaton, and Halleck, followed suit. (66) So the general understanding of the "law of nations," from at least the publication of Vattel's The Law of Nations in 1758 until well into the nineteenth century, embraced all forms of international law, including treaties.

To be sure, members of the founding generation occasionally used "law of nations" to refer to the unwritten law of nations in contradistinction to treaties, when both terms were employed together. For example, in his widely circulated pamphlet Vices of the Political System of the Government of the United States, James Madison referred to "violations of the laws of nations and of treaties," (67) while Edmund Randolph opened the Constitutional Convention with a speech in which he complained that under the Articles of Confederation, Congress "could not cause infractions of treaties or of the law of nations, to be punished." (68) Similarly, the Alien Tort Statute refers separately to both "the law of nations [and] a treaty of the United States." (69) This usage seems to have been common when people referred to treaties expressly and needed a catch-all phrase to refer to the other categories of the law of nations. "Customary law of nations" would not do, because the unwritten law of nations included both the "customary" and the "voluntary" law of nations. (70) So they used the general phrase "law of nations," which would encompass both the "customary" and the "voluntary" law of nations, despite this phrase's redundancy with respect to the "conventional" law of nations --that is, treaties.

There is nothing particularly surprising about this variation in usage. "International law" is sometimes used today in the same way to refer to customary international law in contrast to treaties, despite the fact that "international law" plainly includes both customary international law and treaties. (71) Such instances from the Founding era in no way suggest that the "law of nations" as used in the Offenses Clause excluded treaties. The available evidence suggests that both Madison (72) and Randolph (73) intended the Clause to include treaties, and the ATS (with its express reference to treaties) is commonly thought to rest at least in part on Congress's offenses power. (74)

In sum, the general understanding of the "law of nations" at the Constitution's adoption was that it included all international law-the "voluntary," the "customary," and the "conventional," which is to say treaties. The fact that the phrase was sometimes used more narrowly to refer to the unwritten law of nations, when it was expressly coupled with "treaties," at best suggests a potential ambiguity. But the Offenses Clause does not refer separately to the law of nations and treaties. Moreover, any ambiguity is resolved by the context in which the Offenses Clause was adopted, by the history of its drafting, and by the arguments made for ratification.

B. The Historical Context of the Offenses Clause

Compliance with the law of nations--including compliance with treaties was a matter of acute concern under the Articles of Confederation. From the moment of independence, as John Jay would later write for the Supreme Court, "the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed." (75) Violations of the law of nations were considered a just cause for war, (76) a point that Jay would note specifically in Federalist No.(77) The Framers genuinely feared that "violations of the law of nations & Treaties ... must involve us in the calamities of foreign wars." (78) Finally, "[n]ational honor was at stake as well, an idea the Revolutionary generation took quite seriously." (79)

On June 12, 1776, even before the Declaration of Independence was signed, the Continental Congress appointed a "committee to prepare a plan of treaties to be proposed to foreign powers." (80) That committee reported a draft, which was discussed and approved on July 18. (81) On February 6, 1778, the United States entered a Treaty of Alliance (82) and a Treaty of Amity and Commerce (83) with France. These treaties were critical in helping the United States obtain the military support necessary to secure its independence by force of arms. Over the next decade, the United States entered treaties on the same basic model with the Netherlands, (84) Sweden, (85) Prussia, (86) and Morocco. (87) In 1783, the United States also concluded the Definitive Treaty of Peace with Great Britain, acknowledging the United States's independence. (88) The United States's inability to secure compliance with its treaty obligations under the Articles of Confederation, however, soon became apparent. In 1786, Foreign Secretary John Jay prepared a long report for the Continental Congress detailing treaty violations by the several States. (89) State violations of the Treaty of Peace with Britain--particularly Articles IV and V, dealing with debts and confiscated properties--were of particular concern because they gave Britain an excuse not to evacuate military posts on U.S. soil. (90)

While state treaty violations attracted the most attention before and at the Philadelphia Convention, treaty violations by individuals were also of concern. The 1778 Treaty of Amity with France contained a number of provisions proscribing individual conduct and requiring punishment for infractions, some of which were repeated in subsequent treaties with other nations. Article IX provided that the inhabitants of each party "shall abstain and forbear to fish in all places possessed, or which shall be possessed by the other party" and that ships "found fishing contrary to the tenor of this treaty ... shall be confiscated." (91) Article XV stated that privateers of either party "shall be forbid doing any injury or damage to the other side; and if they act to the contrary they shall be punished, and shall moreover be bound to make satisfaction for all matter of damage." (92) Article XXI prohibited the subjects of France and people and inhabitants of the United States from taking commissions or letters of marque to act as privateers against the other side, providing specifically that "if any person of either nation shall take such commissions or letters of marque, he shall be punished as a pirate." (93) And Article XX guaranteed safe conduct for merchants of the other nation and their goods in case war broke out, supplementing the unwritten law of nations with respect to safe-conducts. (94)

There were also neutrality provisions in these treaties providing for "a firm, inviolable and universal peace" between the parties and their inhabitants. (95) The Peace Treaty with Great Britain similarly provided that "[t]here shall be a firm and perpetual peace between his Britannic Majesty and the said States, and between the subjects of the one and the citizens of the other." (96) During the Neutrality Crisis in 1793, individuals were prosecuted by the federal government for violating the neutrality provisions of the treaties with Britain, the Netherlands, and Prussia if they aided the French, with whom these powers were at war. (97)

The Continental Congress soon expressed concern about individual violations of international law in a 1781 Resolution (98) that is properly viewed as a forerunner of the Constitution's Offenses Clause. (99) The Resolution expressly identified "infractions of treaties and conventions to which the United States are a party" as "offences against the law of nations" (100) and recommended that the several States "provide expeditious, exemplary and adequate punishment." (101) The Articles of Confederation had granted Congress the power of "appointing courts for the trial of piracies and felonies committed on the high seas," (102) but they otherwise contained no provision allowing Congress to define and punish offenses against the law of nations, whether unwritten or conventional. This lack of legislative authority meant that the United States was largely dependent upon the several States for adherence to its international obligations. But a committee consisting of Edmund Randolph, James Duane, and John Witherspoon reported to Congress "[t]hat the scheme of criminal justice in the several states does not sufficiently comprehend offenses against the law of nations." (103)

The 1781 Resolution, which Randolph drafted, (104) therefore provided as follows:

Resolved, That it be recommended to the legislatures of the several states to provide expeditious, exemplary and adequate punishment:

First. For the violation of safe conducts or passports, expressly granted under the authority of Congress to the subjects of a foreign power in time of war:

Secondly. For the commission of acts of hostility against such as are in amity, league or truce with the United States, or who are within the same, under a general implied safe conduct:

Thirdly. For the infractions of the immunities of ambassadors and other public ministers, authorised and received as such by the United States in Congress assembled ...:

Fourthly. For infractions of treaties and conventions to which the United States are a party.

The preceding being only those offences against the law of nations which are most obvious, and public faith and safety requiring that punishment should be co-extensive with such crimes:

Resolved, That it be farther recommended to the several states to erect a tribunal in each State, or to vest one already existing with power to decide on offences against the law of nations, not contained in the foregoing enumeration, under convenient restrictions.

Resolved, That it be farther recommended to authorise suits to be instituted for damages by the party injured, and for compensation to the United States for damage sustained by them from an injury done to a foreign power by a citizen. (105)

The 1781 Resolution demonstrates that Congress was concerned about individual treaty violations and that it understood such violations to be "offences against the law of nations." (106) The Resolution identifies as included in the "law of nations" three specific violations that were of particular concern (safe-conducts, breaches of neutrality, and immunities of ambassadors and diplomats) as well as general "infractions of treaties." (107) Notably, the Resolution twice refers expressly to "infractions of treaties" as "offences against the law of nations." First, in the sentence immediately following the reference to "infractions of treaties," Congress describes "[t]he preceding"-that is, violations of safe-conducts, breaches of neutrality, infractions of the rights of ambassadors, and violations of treaties--as "being only those offences against the law of nations which are most obvious." (108) Second, Congress recommends that the States appoint tribunals "to decide on offences against the law of nations, not contained in the foregoing enumeration." (109) In other words, "infractions of treaties" were understood to be "offences against the law of nations" that were "contained in the foregoing enumeration." (110)

Apart from the general "infractions of treaties" provision, the Resolution's discussion of specific violations indicates that at least some of these also covered rights established by treaty. The Resolution urges punishment for violations of safe-conducts "expressly granted under the authority of Congress," and for breaches of neutrality against states "in amity, league or truce with the United States." (111) The United States routinely granted express safe-conducts and entered states of amity with other countries by treaty. Indeed, by the time of the 1781 Resolution, the Treaty of Amity with France expressly guaranteed safe conduct for merchants in case of war (112) and pledged peace between the two countries and their inhabitants, (113) thereby adding a layer of treaty protection to the unwritten law of nations. The Resolution made no attempt to distinguish violations of safe-conducts and breaches of neutrality under treaties from the unwritten law of nations.

The 1781 Resolution's reference to treaties is also significant because that resolution--which calls for "punishment" of "offences against the law of nations"--is properly viewed as an antecedent of the Constitution's Offenses Clause itself. (114) The Clause was intended to address the same failure of the States to punish violations of international law identified in the Resolution, and the Resolution's author, Edmund Randolph, would play a key role in drafting the Offenses Clause. (115) The fact that this forerunner to the Offenses

Clause expressly identified treaty violations as offenses against the law of nations, and drew no distinction between treaty violations and violations of unwritten law, strongly suggests that the Offenses Clause reaches such violations.

Only Connecticut and South Carolina passed statutes responding to the 1781 Resolution. (116) Connecticut's 1782 statute punished violations of safe-conducts, breaches of neutrality, and infractions of the immunities of ambassadors --thus addressing violations of existing treaties to the extent such treaties granted safe-conducts or promised peace (117)--but it did not implement the 1781 Resolution's recommendation to punish infractions of treaties more generally. (118) South Carolina's 1785 law was limited to protecting the rights of ambassadors. (119) The latter may have been motivated by the famous Marbois Incident during the summer of 1784, in which a French Consul-General was assaulted on the streets of Philadelphia. (120) Because Pennsylvania had no applicable statute, Marbois's assailant was prosecuted at common law and convicted in Pennsylvania state court for "an infraction of the law of Nations." (121) Faced with inaction on the part of the states, the Continental Congress in 1785 directed John Jay, the U.S. Secretary for Foreign Affairs, to draft "an act to be recommended to the legislatures of the respective states, for punishing the infractions of the laws of nations, and more especially for securing the privileges and immunities of public Ministers from foreign powers," (122) although there is no record of Jay's ever drafting such an act. (123) The dismal record of the states in punishing violations of the law of nations in general-and treaties in particular-provided a powerful motivation for the Constitutional Convention to vest such power in the national government.

C. Drafting the Offenses Clause

Treaty violations and other offenses against the law of nations were very much on the minds of the delegates who gathered in Philadelphia during the summer of 1787. During the previous winter, James Madison had written Vices of the Political System of the United States, which was widely circulated. (124) Among these vices, Madison listed "[violations of the law of nations and of treaties." (125) The rest of Madison's discussion shows that he viewed treaties as an integral part of the law of nations. He complained specifically that "[t]he Treaty of peace--the treaty with France--the treaty with Holland have each been violated" and added that "[t]he causes of these irregularities must necessarily produce frequent violations of the law of nations in other respects." (126) In other words, violations of the treaties with Britain, France, and Holland were troubling violations of the law of nations, but they were not the only violations of the law of nations that were cause for concern.

Virginia Governor Edmund Randolph opened the Constitutional Convention with a speech in which, according to Madison's report, he complained that under the Articles of Confederation, Congress "could not cause infractions of treaties or of the law of nations, to be punished: that particular states might by their conduct provoke war without controul." (127) Like Madison, Randolph distinguished treaties from the law of nations in this instance, but elsewhere he understood the violation of a treaty to be an offense against the law of nations. It was Randolph, after all, who drafted the 1781 Resolution for the Continental Congress that expressly listed "infractions of treaties and conventions to which the United States are a party" as "offences against the law of nations." (128)

The original plans submitted to the Convention by the Virginia delegation, by delegate Charles Pinckney, and by delegate William Paterson on behalf of New Jersey, each proposed to address violations of the law of nations not through the legislature but through the judiciary. (129) As George Mason described the thinking of the Virginia delegation in a letter to Arthur Lee, "[t]he most prevalent idea" was to establish "a judiciary system with cognizance of all such matters as depend upon the law of nations." (130) The Offenses Clause first emerged in a draft outline of the Constitution:

6. To provide tribunals and punishments for mere offences against the law of nations.

7. To declare the law of piracy, felonies and captures on the high seas, and captures on land. (131)

The draft Constitution that the Committee of Detail reported to the Convention on August 6, 1787, gave Congress the power
   [t]o declare the law and punishment of piracies and felonies
   committed on the high seas, and the punishment of counterfeiting
   the coin of the United States, and of offences against the law of
   nations. (132)


This provision came up for debate on August 17, and the discussion focused on the words "declare," "define," and "punish." (133) James Madison moved to strike the words "and punishment." (134) George Mason questioned whether this would suggest that Congress lacked the power to punish the offenses listed, "considering the strict rule of construction in criminal cases." (135) Randolph did not think "that expunging 'the punishment' would be a constructive exclusion of the power." (136) Wilson agreed, noting that "[s]trictness was not necessary in giving authority to enact penal laws; though necessary in enacting & expounding them." (137)

Although Madison won his motion, Gouverneur Morris successfully proposed another to strike out "declare the law" and insert "punish," (138) effectively undoing what Madison had just accomplished. This left Congress with the right "[t]o punish piracies [etc.]," at which point Madison and Randolph moved to insert "define &" before "punish." (139) Madison explained that "felony at common law is vague." (140) He did not think that felonies should be defined by English law because "no foreign law should be a standard farther than is expressly adopted." (141) But neither should felonies be defined by state law, for then "the citizens of different States would be subject to different punishments for the same offence at sea." (142) "The proper remedy for all these difficulties was to vest the power proposed by the term 'define' in the Natl, legislature." (143) Oliver Ellsworth enlarged the motion to amend the Clause to read "to define and punish piracies and felonies committed on the high seas, counterfeiting the securities and coin of the U. States, and offences agst. the law of Nations," which was agreed to without objection. (144)

In the Committee of Style, the clause on counterfeiting was broken into a separate provision and the Offenses Clause made to read as follows: "To define and punish piracies and felonies committed on the high seas, and punish offences against the law of nations." (145) The Clause came up for debate again on September 14. "Govr. Morris moved to strike out 'punish' before the words 'offences agst. the law of nations.' so as to let these be definable as well as punishable ...," (146) This time, the debate over Congress's power to define focused not on felonies, but on the law of nations. James Wilson objected to the proposal on the ground that "[t]o pretend to define the law of nations which depended on the authority of all the Civilized Nations of the World, would have a look of arrogance. [T]hat would make us ridiculous." (147) Morris responded that "[t]he word define is proper when applied to offences in this case; the law of nations being often too vague and deficient to be a rule." (148) Morris carried the day by a vote of 6-5, and the Offenses Clause took its present form. (149)

Wilson's reference in this exchange to law "which depended on the authority of all the Civilized Nations of the World" clearly refers to the unwritten law of nations, but it would be a mistake to conclude on that basis that the Offenses Clause as a whole was so limited. We have seen that Wilson thought that "[njational treaties are laws of nations" (150) and that "one part of the law of nations [consisted of] publick compacts." (151) The fact that Wilson thought it would "have a look of arrogance" (152) to define one part of the law of nations in no way suggests that he believed the Clause was limited to that part. Nor does Morris's response that the law of nations was "often too vague and deficient to be a rule" (153) suggest that the clause was limited to the unwritten law of nations, for there was no necessary correspondence between treaties and clarity, or unwritten law and vagueness. The prohibition against piracy, for example, although it formed part of the unwritten law of nations, was generally acknowledged to be sufficiently clear as not to require further definition by the legislature. (154) Indeed, the Articles of Confederation had given the Continental Congress authority to appoint courts to try piracies without any further power to define the term, (155) and the Supreme Court similarly concluded in United States v. Smith that Congress had adequately "defined" the crime of piracy by referring to the unwritten law of nations. (156) On the other hand, certain treaty provisions could benefit from further definition. For example, following Gideon Henfield's acquittal in the most prominent neutrality prosecution on charges of violating the neutrality provisions of the treaties with Britain, the Nether lands, and Prussia by aiding the French, (157) Congress passed the 1794 Neutrality Act, which specified in clear terms the lands of acts that would be punishable. (158) Even if some treaty provisions were clear and not in need of further definition before they were applied, it is important to recall that Morris said the law of nations was "often too vague and deficient to be a rule," (159) not that it was always too vague.

In sum, the drafting history does not show that the Offenses Clause used the phrase "Law of Nations" in a narrower sense than the common understanding of the era, which included treaties, or in a narrower sense than the 1781 Resolution, which expressly identified "infractions of treaties" as "offences against the law of nations." (160) While the inclusion of treaties within the scope of the Offenses Clause was not specifically discussed at the Convention, those who participated in the debates-like Randolph, Madison, and Wilson-all believed that the law of nations included treaties, and their rationales for adopting the Offenses Clause applied equally to treaties.

D. Ratification Debates

The Offenses Clause received relatively little attention during the ratification debates. (161) But in Federalist No. 42, Madison explained the purpose of the Clause in terms that applied as readily to treaties as to unwritten international law. Madison noted that the Articles of Confederation "contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations." (162)

In Federalist No. 3, John Jay defended the assignment of power over the law of nations to the federal government in more general terms. But buried in this essay again is evidence to support the understanding that this power encompassed treaties. Jay observed that "[t]he prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice," citing "[t]he case of the treaty of peace with Britain" as a particular example. (163) He then noted that "the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others." (164) The word "punish" makes it likely that Jay was referring specifically to the Offenses Clause. If so, he would have understood that clause to include violations of treaties, for his specific example of the sort of "wrong" the national government would be able to "punish" was a violation of "the treaty of peace with Britain."

As Secretary of Foreign Affairs under the Articles of Confederation, Jay had prepared the 1786 report for Congress on state treaty violations, (165) and it is reasonable to think that he would have been as concerned to punish violations of treaties as violations of the unwritten law of nations. Jay summarized his point in a much-quoted passage:
   So far, therefore, as either designed or accidental violations of
   treaties and of the laws of nations afford just causes of war, they
   are less to be apprehended under one general government than under
   several lesser ones, and in that respect the former most favors the
   safety of the people. (166)


Jay's argument in Federalist No. 3 for assigning power of the law of nations to the federal government thus parallels Madison's specific description of the purpose of the Offenses Clause, but Jay made it explicit that this argument also applied to violations of treaties.

Another discussion of the Offenses Clause in the newspapers supports the understanding that the Offenses Clause included violations of treaties. In November 1787, the Anti-Federalist writer Cincinnatus published an essay arguing that the Offenses Clause was so broad as to threaten freedom of the press. (167) A writer calling himself Anti-Cincinnatus responded with an essay in a Massachusetts paper that clearly read the Offenses Clause to apply to treaties:
   [I]t is needful, to that end only to consider, that by the law of
   nations, is intended, those regulations and articles of agreement
   by which different nations, in their treaties, one with another,
   mutually bind themselves to regulate their conduct, one towards the
   other. A violation of such articles is properly defined an offence
   against the law of nations: and there is and can be no other law of
   nations, which binds them with respect to their treatment one of
   another, but these articles of agreement contained in their public
   treaties ..., (168)


Certainly, the writer was mistaken in thinking that the "law of nations" in the Offenses Clause referred only to treaties. But this essay offers further proof that the phrase could be understood--and indeed was understood--to include treaties. (169)

The evidence from the ratification debates is limited because of the relatively scant attention the Offenses Clause received, but what evidence exists supports reading the clause to encompass all of the law of nations, including treaties. Madison's specific discussion of the clause is consistent with this reading; Jay referred particularly to treaty violations in discussing the federal government's power to "punish" wrongs against other countries, and Anti-Cincinnatus expressly read the clause to apply to treaties. Moreover, to our knowledge, there is nothing in the ratification debates to support the idea that "law of nations" was used in a narrow sense to exclude treaties.

E. Constitutional Design

Our conclusion that the Offenses Clause was intended to promote U.S. compliance with international law as a whole finds further support in the constitutional design. The Framers' concern in Philadelphia was to ensure that the United States would be able to enforce U.S. international law commitments at the national level. (170) The Constitution accordingly gave the President the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur" (171) and the duty to "take Care that the Laws be faithfully executed." (172) It gave Congress the powers among numerous others implicating U.S. foreign relations--"[t]o regulate Commerce with foreign Nations," (173) "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations," (174) and "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (175) The Constitution provided for a federal judiciary with jurisdiction over "all Cases ... arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority," (176) as well as an array of specific instances likely to raise foreign relations concerns. (177) It provided that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." (178) And it forbade the States from exercising a range of powers relating to foreign relations, including the power to "enter into any Treaty." (179) As Golove and Hulsebosch have correctly observed:
   Considered as a whole, and understood in historical perspective,
   the text establishes a comprehensive regime for dealing with
   foreign affairs with an eye equally on centralizing all of the
   relevant powers in the federal government and on ensuring, as far
   as possible, that the federal government would uphold the nation's
   international duties. (180)


The Offenses Clause was only one piece of the constitutional scheme ensuring that the federal government had sufficient authority to secure the United States's compliance with its international obligations. But it was an important piece-so important that the Offenses Clause is one of the only explicit powers to impose punishment that appears in the Constitution. (181)

The fact that the Constitution addresses treaties elsewhere creates no implication that the Offenses Clause excludes them. Powers granted by the Constitution frequently overlap. (182) The Supreme Court has repeatedly held that the express grant of one power does not limit the exercise of others, often citing the Offenses Clause as an example. (183) This proposition has long been clear to students of the Constitution like Justice Story, who made the point with specific reference to the Offenses Clause in his Commentaries on the Constitution of the United States. "It is obvious," he wrote, "that this [offenses] power has an intimate connexion and relation with the power to regulate commerce and intercourse with foreign nations, and the rights and duties of the national government in peace and war, arising out of the law of nations." (184)

The purpose of the Clause--to give Congress the authority to ensure compliance with international law by punishing violations--was also clear to Justice Story:
   As the United States are responsible to foreign governments for all
   violations of the law of nations, and as the welfare of the Union
   is essentially connected with the conduct of our citizens in regard
   to foreign nations, congress ought to possess the power to define
   and punish all
   such offences, which may interrupt our intercourse and harmony
   with, and our duties to them. (185)


This rationale so clearly implicates treaties as well as customary international law that it is hard to understand why the Clause would have excluded them.

In sum, we believe that the historical evidence shows that the Framers did not exclude treaties from the Offenses Clause. The understanding of the "law of nations" at the time of the Founding included not just the unwritten law of nations but also treaties--what Vattel and others called "the conventional law of nations." The Offenses Clause has its origins in a 1781 Resolution of the Continental Congress that expressly listed "infractions of treaties" as "offences against the law of nations." The drafting history of the Clause is consistent with a broad understanding, and although the specific evidence from the ratification debates is limited, there is evidence that some readers understood the Clause to reach treaties, while there appears to be none to the contrary. Having established that the original understanding of the Offenses Clause embraces both the unwritten law of nations and treaties, we turn next to consider the Clause's interpretation by Congress and the Supreme Court.

II. CONGRESSIONAL AND JUDICIAL INTERPRETATIONS

The Constitution draws its meaning not only from the understanding of the Framers but also from the practical construction of the document over time. (186) Congress has not invoked the Offenses Clause with great frequency, but the evidence nevertheless shows a consistent congressional understanding--from the very first Congress--that the Offenses Clause authorizes Congress to define and punish all violations of international law, including offenses under treaties. Supreme Court decisions also describe the Offenses Clause as applying to international law obligations generally. The Court's discussion of the purpose of the clause applies equally to treaties, and in several cases the Court has applied the clause to uphold legislation implementing treaties. (187)

A. Congress's Understanding of the Offenses Clause

Congress often does not specify the source of its authority, (188) but legislation from the 1789 Alien Tort Statute to the 2006 Military Commissions Act shows that Congress has consistently understood its authority under the Offenses Clause to extend to the implementation of treaties. These acts of Congress and other legislative materials establish two additional points. First, treaty obligations often overlap with and incorporate customary international law, and Congress repeatedly has passed legislation to implement U.S. treaty obligations and customary international law together. The interrelationship between treaties and customary international law therefore provides an additional reason not to view the Offenses Clause as limited to only one kind of international law. (189) Second, the Offenses Clause is only one of several constitutional authorities that Congress may use to implement treaties. Even when Congress has specifically invoked the Offenses Clause, it has often cited other constitutional powers as well. The Foreign Commerce Clause and the Necessary and Proper Clause, in particular, grant broad authority to implement the United States's treaty obligations. Congress has not understood the Offenses Clause to be exclusive of those other powers, but rather as an additional and complementary source of authority. (190)

Congress apparently first exercised its power under the Offenses Clause in 1789 by enacting the provision of the First Judiciary Act known today as the Alien Tort Statute (ATS) or Alien Tort Claims Act (ATCA)--a provision that expressly extends to treaty violations. As originally enacted, the ATS provided that "the district courts shall have ... cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." (191) Although the ATS undoubtedly rested on other legislative powers as well, (192) commentators with a range of views about the statute have concluded that the ATS falls squarely within Congress's authority under the Offenses Clause. (193) It would have been natural for Congress to rely on the Offenses Clause in passing the ATS because both the statute and the constitutional provision had their origins in the Continental Congress's 1781 Resolution recommending that the states provide "punishment" for "offences against the law of nations." (194) The ATS grew out of the final paragraph of that resolution, recommending that the states "authorise suits to be instituted for damages by the party injured." (195) Civil liability was a natural counterpart to criminal prosecution, and the power to authorize actions for damages was understood to be within Congress's authority under the Clause. (196) Like the 1781 Resolution, the ATS extended not just to violations of the unwritten law of nations but also to violations of "a treaty of the United States." This reveals that, like the drafters of the 1781 Resolution, the First Congress viewed the Offenses Clause as reaching both unwritten and conventional law. (197)

Congress exercised its authority under the Offenses Clause again the following year when it passed the Crimes Act of 1790. (198) The Crimes Act addressed piracy as well as two of the substantive violations identified in the 1781 Resolution, violations of safe conducts and assaults on ambassadors, thereby punishing violations of both unwritten law and treaties. Sections 8 through 12 of the Crimes Act defined and punished piracy, assisting pirates, concealing pirates, and confederating with pirates. (199) U.S. treaties with France, the Netherlands, Sweden, and Prussia provided that U.S. inhabitants taking commissions or letters of marque to act as privateers against the other party would be punished as pirates. (200) The piracy provisions of the Crimes Act therefore implemented these provisions as well as the more general prohibition against piracy in the unwritten law of nations. Section 28 of the Act provided punishment for the violation of "any safe-conduct or passport duly obtained and issued under the authority of the United States." (201) U.S. treaties with France, the Netherlands, Sweden, and Prussia supplemented the unwritten law of nations on safe conduct by expressly granting a period of time for merchants of the other party to remove themselves and their goods in case of war between the parties. (202) Section 28 provided punishment for violations of these treaty provisions as well as the unwritten law of nations. (203)

The Crimes Act did not itself fully implement the recommendations in the 1781 Resolution; it did not address neutrality, and it lacked a general prohibition against violating treaties, unlike the provision of the 1781 Resolution recommending that the states punish "infractions of treaties and conventions to which the United States are a party" (204) and the ATS's clause authorizing civil

suits for torts in violation of "a treaty of the United States." (205) But Congress's failure to enact such a provision does not mean that Congress lacked authority under the Offenses Clause to do so. The assumption in the 1790s seems to have been that at least some treaty violations could be subject to prosecution at common law, jurisdiction having been granted by the provision of the 1789 Judiciary Act giving the district courts "cognizance of all crimes and offences that shall be cognizable under the authority of the United States." (206) That was the theory in Henfield's Case, the most prominent of the neutrality prosecutions brought by the Washington Administration in 1793, which specifically charged the defendant with several treaty violations. (207) Henfield had joined the French ship Citizen Genet in Charleston, South Carolina, serving as its prize master when it captured as a prize the British ship The William. (208) Justice James Wilson charged the grand jury in Philadelphia, instructing them both that "under our national constitution, treaties compose a portion of the public and supreme law of the land," and that treaties were part of the law of nations. (209) "[T]here are laws of nations which are founded altogether on human consent," Wilson observed, and "of this kind are national treaties." (210) The grand jury returned an indictment of twelve counts against Henfield. (211) Six of these counts charged him specifically with violating the neutrality provisions of the U.S. treaties with Great Britain, the Netherlands, and Prussia. (212) The remaining counts charged him with violating the unwritten law of nations on neutrality by acts of hostility against Britain, the Netherlands, and Prussia, but these charges also noted the existence of the treaties that put the United States at peace with those countries. (213)

A panel of three judges-consisting of Wilson, Justice James Iredell, and Judge Richard Peters--deliberated on the legal issues and instructed the petit jury in a charge delivered by Wilson. Wilson told the jury: "It is the joint and unanimous opinion of the court, that the United States, being in a state of neutrality relative to the present war, the acts of hostility committed by Gideon Henfield are an offence against this country, and punishable by its laws." (214) He pointed both to the unwritten law of nations and to "positive laws, existing previous to the offence committed, and expressly declared to be part of the supreme law of the land," noting that "[t]he constitution of the United States has declared that all treaties made, or to be made, under the authority of the United States, shall be part of the supreme law of the land." (215) As applicable to the case at issue, Wilson cited the first article of the Treaty of Amity with the Netherlands, the seventh article of the Treaty of Peace with Britain, and the first article of the Treaty of Amity with Prussia. (216) "These treaties were in the most public, the most notorious existence, before the act for which the prisoner is indicted was committed." (217) Although Henfield was acquitted, (218) the case illustrated the assumption that at least some treaty violations by individuals could be prosecuted even without a statute. (219)

In response to Henfield's acquittal and those of other defendants, (220) Congress passed the Neutrality Act, which specifically prohibited persons within the United States from accepting commissions from foreign states and enlisting in their service, as well as fitting out ships, augmenting their armaments, and launching military expeditions against foreign states with which the United States was at peace. (221) In United States v. Arjona, the Supreme Court identified the 1794 Neutrality Act (and those of 1797, 1817, and 1818) as an exercise of Congress's authority under the Offenses Clause. (222) Some scholars have criticized this conclusion, arguing that " [international law did not prohibit private citizens from carrying contraband to belligerents, nor did it bar the service of a third-country national on belligerent privateers." (223) But Arjona's conclusion seems more sound once we recognize that the Offenses Clause extends to treaties as well as the unwritten law of nations. The treaties that Henfield was alleged to have violated pledged peace not only between the United States and the states of Britain, the Netherlands, and Prussia, but also between the people of each. (224) To be sure, the Neutrality Act went beyond implementation of these treaties by prohibiting persons in the United States from violating neutrality even where no treaty existed. But given that the Neutrality Act was a direct response to the acquittal in Henfield's Case--a case that had specifically charged the defendant with violating treaties--it is reasonable to view that Act as at least in part an implementation under the Offenses Clause of U.S. treaty provisions pledging peace.

Congress's actions from 1789 to 1794 thus suggest that it viewed the Offenses Clause as encompassing treaties. In the Judiciary Act of 1789, Congress exercised its authority under the Clause to authorize civil suits for torts in violation of "a treaty of the United States." (225) In the Crimes Act of 1790, Congress criminalized piracy and violations of safe-conducts, which corresponded to obligations in existing treaties. (226) And in the Neutrality Act of 1794, Congress ensured that the Gideon Henfields of the future would not escape punishment if they violated treaties committing the United States to peace. (227) It is worth noting that each of these exercises of the offenses power implemented both the unwritten law of nations and treaties. The ATS expressly mentions both, whereas the 1790 Crimes Act and the 1794 Neutrality Act encompassed treaty obligations but also went beyond them to define and punish what Congress understood to be violations of the unwritten law of nations. Implementing treaties and custom together made sense, for these two types of international law were often intertwined, just as they are today.

While treaties and custom often overlapped, so too did the constitutional authorities for implementing treaties. Early Congresses certainly did not believe that their authority to implement treaties was limited to the Offenses Clause. As Jean Galbraith has recently pointed out, congressional debate over the 1796 Jay Treaty focused on the Necessary and Proper Clause. (228) So did debates over the 1815 commercial treaty with Great Britain. (229) Because these treaties addressed numerous bilateral issues, the thrust of which was primarily commercial, the Offenses Clause would not have seemed as natural a fit as the treaty power together with the Necessary and Proper Clause or the Commerce Clause. But in the 1880s, when Congress looked to implement a treaty requiring its parties to enact legislation to punish violations and considered legislation to protect the treaty rights of aliens, it expressly invoked the Offenses Clause.

To understand Congress's understanding of its own authority under the Offenses Clause during the late nineteenth century, it is best to begin with the legislative history of the 1884 Counterfeiting Act, which prohibited the counterfeiting of foreign government notes, bonds, and other securities. (230) Although this Act did not implement a treaty, the House Report clearly described the offenses power in terms that comprehended treaties:
   The law of nations, as used in this clause, is obviously what is
   now known among publicists as international law; in other words,
   what the Constitution termed the law of nations, or jus gentium, is
   now termed the jus inter gentes, or international law.

   Whatever, therefore, may be regarded as an offense against the law
   which regulates the just relations between nations, may be defined
   and punished as an offense against the law of nations under [the
   Define and Punish] [C]lause of the Constitution. (231)


Congress thus described the law of nations as extending to all of "international law" and read the Offenses Clause as encompassing whatever "may be regarded as an offense against the law which regulates the just relations between nations." (232)

Just a few years later, Congress acted on this understanding of the Offenses Clause, expressly invoking the Clause to support legislation to implement the Convention for the Protection of Submarine Cables, (233) a multilateral treaty ratified by the United States in 1884. Article II of the Convention stated that "[t]he breaking or injury of a submarine cable ... shall be a punishable offense," (234) while Article XII committed the parties "to take or to propose to their respective legislative bodies the measures necessary in order to secure the execution of this Convention, and especially in order to cause the punishment" of persons violating its provisions. (235) To implement the Convention, Congress passed the

Submarine Cable Act of 1888, sections 1 and 2 of which criminalized breaking submarine cables--legislation that is still in effect today. (236) The bill was twice reported out of the House Committee on Foreign Affairs, and each report stated that the Offenses Clause and the Foreign Commerce Clause were sufficient to answer the question "whether or not Congress is empowered to pass this bill." (237)
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Title Annotation:Introduction into II. Congressional and Judicial Interpretation A. Congress's Understanding of the Offenses Clause, p. 2202-2243
Author:Cleveland, Sarah H.; Dodge, William S.
Publication:Yale Law Journal
Date:May 1, 2015
Words:10750
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