Originalism in the Courts: The Define and Punish Clause
The Constitution's Article I, Section 8 provides that “Congress shall have Power … To define and punish … Offenses against the Law of Nations.” Is there a limit on Congress’ ability to say what constitutes an offense against the Law of Nations, or can Congress prohibit anything it feels violates (or should violate) the law of nations? In an amicus brief filed last week in the D.C. Circuit, a group of law professors (including me) argues on originalist grounds that there is a constittutional limit. As the brief’s summary puts it:
The framers of the Constitution shared a common understanding of the law of nations as a body of law that reflected the combined practices of many nations, and, therefore, could not be created by any single State. This background assumption was explicitly discussed at the Constitutional Convention and incorporated into the precise language chosen for the Offenses Clause. The framers adopted the Clause with the express intent to permit Congress to impose sanctions for violations of internationally recognized norms of the law of nations, not to create new norms. The Supreme Court has consistently applied the Clause in this limited manner, looking to international law to determine whether the Clause authorized a congressional enactment. As a result, the Offenses Clause served as a constitutional basis for Congress’ decision to criminalize certain acts in the Military Commissions Act only if those acts violated existing international law norms.
The case is Hamdan v. United States, in which Hamdan is being prosecuted by military commission for material support of terrorism. There is some question whether material support of terrorism is actually a violation of international law. The brief takes no position on that issue, but its central conclusion is that “Congress’ power under the Offenses Clause is limited to imposing sanctions on existing violations of international law, and does not include the power to create new international law norms. As a result, Congress had no power under the Offenses Clause to create a military commission to prosecute Salim Ahmed Hamdan for offenses that were not violations of existing norms of international law.”
Although in this particular case the originalist argument potentially favors a terrorism defendant, the issue is much broader and cuts across immediate political interests. For example, suppose Congress concludes that the death penalty, as currently imposed in the United States, violates international human rights law. Could it use the offenses clause to prohibit the death penalty in the states? Would the answer depend on whether the death penalty actually violates existing international law, or could Congress define it as such an offense regardless of its actual international status?
Thanks to Beth Stephens (Rutgers-Camden School of Law) for coordinating the brief. For scholarship on the issue and its contemporary importance, see this forthcoming article by Eugene Kontorovich.