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The Original Meaning of Piracy
Michael Ramsey

At SCOTUSBlog, Lyle Denniston has a great post on a recent petition to the U.S. Supreme Court involving pirates.  (The cases are Dire v. United States and Said v. United States).  The core question is: for purposes of the federal statute criminalizing piracy, do we use the original meaning of piracy or the modern meaning?

Oversimplifying slightly, it comes up this way.  The 1790 Piracy Act criminalizes piracy "as defined by the law of nations."  The defendants in the current cases are Somalis who (foolishly) attacked U.S. naval ships off Somalia; they were captured, brought to the United States and prosecuted under the Piracy Act.  However, their acts were not piracy "as defined by the law of nations" in 1790, because they did not involve robbery, which was an element of piracy in eighteenth-century international law.  Not to worry, the government responds: the modern international law of piracy doesn't require robbery, just a hostile attack at sea (which is what occurred here).

So, put another way, does the 1790 Act criminalize piracy "as defined by the 1790 law of nations" or does it criminalize piracy "as defined by the law of nations at the time of the offense"?

Originalist theory is fairly unanimous in thinking that generally worded textual references to things that can change technologically refer to the technology as it changes, not to the technology at the time the text is adopted.  Thus the First Amendment's "speech" includes communication on the internet and the Second Amendment's "arms" isn't limited to muskets.  See Scalia & Garner, Reading Law, pp. 85-86  ("Yet the reader should not be deluded by the caricature of originalism as a doctrine that would make it impossible to apply a legal text to technologies that did not exist when the text was created.  ...  Drafters of every era know that technological advances will proceed apace and that the rules they create will one day apply to all sorts of circumstances that they could not possibly envision.").  On the other hand, at least the majority of originalists think that abstract concepts should be given the content they had at the time of drafting, not a modern one.  The Eighth Amendment forbids punishments that were thought "cruel and unusual" in 1791, not ones thought "cruel and unusual" today.  See Scalia & Garner, Reading Law, at 407 ("The open-ended provisions of our Constitution permit or forbid forever those extant phenomena that they were understood to permit or forbid when adopted.").

So is piracy "as defined by the law of nations" more like "arms" in the Second Amendment or like "cruel and unusual" in the Eighth Amendment?  That appears to be the issue in Dire and Said.

For what it's worth, I think the answer is obviously the former.  Like technologies, definitions under the law of nations (international law) change over time, because the law of nations is composed in part of the practices of nations, and the practices of nations change.  Thus, as Scalia and Garner say of technologies, drafters who incorporate international law definitions know that changes in international law "will proceed apace and that the rules they create will one day apply to all sorts of circumstances that they could not possibly envision."  Indeed, that's the point of incorporating by reference (instead of giving a fixed definition).  The United States wants to keep its law co-extensive with international law on piracy, as international law changes, so that it can punish as many pirate-ish acts as it can without going beyond international law and putting the United States in violation of limits on its jurisdiction.

But Justice Scalia may have a different view.  In Sosa v. Alvarez-Machain (2004), the Supreme Court faced a similar question about the 1789 Alien Tort Statute, which gives jurisdiction over civil suits brought for a "violation of the law of nations."  Does that mean a "violation of the law of nations as defined in 1789" or a "violation of the law of nations as defined at the time of the offense"?  The Supreme Court said the latter (and I agree), but Scalia, concurring, said the former; in his view the statute only encompassed violations of then-existing (1789) law-of-nations rules.

Regardless of who's right, it's a great question because it occupies a disputed ground between places where originalists think a text encompasses change and places where they don't.  Sadly, since the Fourth Circuit decided against the defendants (consistently with Sosa) and there's no conflict in lower court authority, it's unlikely that the Court will hear the case.