The State Marque and Reprisal Clause

No State shall . . . grant Letters of Marque and Reprisal. . . .

—John C. Yoo

Introduction

At the Founding, the sovereign of nations could authorize holders of letters of marque and reprisal to engage in hostile actions against enemies of the state.¹ These letters authorized private parties, known as privateers, to engage in reprisals for private commercial gain.² One scholar has observed that letters of marque and reprisal were originally “an important tool of national power for the federal government created by the Framers, who placed great import on the federal government’s role in protecting international commerce and in enforcing international law.”³ But this was a power for the sovereign to exercise, not the states.

The Constitution has two clauses concerning letters of marque and reprisal. Congress has the power to grant them (see Essay No. 57), but the states do not. “That such a power ought to exist in the national government,” wrote Justice Joseph Story, “is something that no one will deny,” but it “could not be left without extreme mischief, if not absolute ruin, to the separate authority of the several states.”⁴ If it were left to the states, each one would have “the option . . . to involve the whole in the calamities and burthens of warfare.”⁵ Congress has not issued a letter of marque and reprisal since the War of 1812, and the states are absolutely barred from issuing them.

History Before 1787

In British practice, the sovereign issued letters of marque and reprisal. During the Revolutionary War, the Continental Congress issued them. The Articles of Confederation centralized authority over war and foreign affairs in the national government. A single state could not plunge the Confederation into war.

Article IX of the Articles of Confederation vested in Congress the sole power to grant letters of marque and reprisal “in times of peace.”⁶ States could grant letters of marque and reprisal only once Congress had declared war.⁷ And even when Congress had declared war, the power of the states to grant letters of marque and reprisal was constrained. First, the states could issue letters of marque and reprisal only “against the kingdom or state and the subjects thereof, against which war has been so declared.” Second, such letters could be issued only “under such regulations as shall be established by the united states in congress assembled.” However, there was an exception to these rules: The states could issue letters of marque and reprisal whenever “such state be infested by pirates,”⁸ even if there was no declaration of war.

The Constitutional Convention

A Committee of Detail draft listed several powers that states could not exercise.⁹ Many of these powers concerned foreign policy. As relevant here, states could not “grant Letters of Marque and Reprisal.” At this point in the Convention, the Framers had not yet granted Congress the power to issue such letters.

On August 6, the Committee of Detail’s report was delivered to the Convention.¹⁰ The prohibition on states issuing letters of marque and reprisal was paired with bans on states’ coining money, entering into treaties, and granting titles of nobility.¹¹ On August 18, the delegates voted to grant Congress the power to issue letters of marque and reprisal.¹² On August 28, the delegates approved by a vote of eight to one the Committee of Detail’s draft that included the prohibition on states’ issuing letters of marque and reprisal.¹³ No further changes were made to this provision.

The Ratification Debates

The State Marque and Reprisal Clause in the Constitution was not controversial. Like the Articles of Confederation, the Constitution banned states from issuing letters of marque and reprisal. Unlike Article IX of the Articles, however, this prohibition against the states was an absolute bar and could not be waived in times of war. In Federalist No. 44, James Madison explained that “[t]his alteration is fully justified” and cited “the advantage of uniformity in all points which relate to foreign powers.” Madison also observed that Congress has the “immediate responsibility to the nation in all those, for whose conduct the nation itself is to be responsible.”

One scholar has observed that “[t]he anti-federalists acknowledged the need for letters of marque within the general war power as a Congressional power.”¹⁴ Still, there was a concern that the states could not issue such letters even in times of war. In fact, the prohibition was more restrictive than the state’s ability to engage in war. Under Article I, Section 10, Clause 3 of the Constitution, the state can engage in war if it is “actually invaded, or in such imminent Danger as will not admit of delay.” (See Essay No. 86.) By contrast, a state cannot issue letters of marque and reprisal under any circumstances. There is also a complete prohibition on states’ entering into treaties, coining money, enacting bills of attainder or ex post facto laws, impairing with the obligation of contracts, or granting titles of nobility.¹⁵ (See Essay Nos. 77, 79, 80, 81, 82, and 83.)

For example, Candidus, a prominent Anti-Federalist, proposed an alternative to the Constitution. Candidus urged the legislatures of each state to “frame a treaty of Amity.”¹⁶ This treaty would be “united with some parts of the Constitution proposed by the respectable Convention.”¹⁷ Candidus favored the provision that appeared in the Articles of Confederation: The treaty “should expressly declare that no State (without the consent of Congress) should . . . grant letters of marque and reprisal.¹⁸

Practice

Letters of marque and reprisal have played little if any role in modern times. Consequently, the State Marque and Reprisal Clause remains uncontroversial.

1. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 206 (1996). ↩︎
2. Bas v. Tingy, 4 U.S. 37 (1800). ↩︎
3. Theodore M. Cooperstein, Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering, 40 J. Mar. L. & Com. 221, 221 (2009). ↩︎
4. 3 Story’s Commentaries § 1164. ↩︎
5. Id. ↩︎
6. Articles of Confederation, art. IX, § 1. ↩︎
7. Id. art. VI, § 5. ↩︎
8. Id. ↩︎
9. 2 Farrand’s 169. ↩︎
10. Id. at 177. ↩︎
11. Id. at 187. ↩︎
12. Id. at 328. ↩︎
13. Id. at 439. ↩︎
14. Cooperstein, supra at 231. ↩︎
15. Id. ↩︎
16. Storing 4.9.22. ↩︎
17. Id. at 4.9.21. ↩︎
18. Id. at 4.9.22. ↩︎