Georgetown Center for the Constitution

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal . . . .

Related Citations

Anthony J. Bellia Jr. & Bradford R. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729 (2012).

Arguing that the Framers gave Congress exclusive power to authorize reprisals against foreign nations to prohibit states or courts from taking international justice into their own hands.

Theodore M. Cooperstein, Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering, 40 J. Mar. L. & Com. 221 (2009).

Documenting the development of constitutional law on letters of marque and reprisal from British common law to the ratification debates over the Constitution to nineteenth century Supreme Court cases.

Christopher H. Lytton, Blood For Hire: How the War in Iraq has Reinvented the World’s Second Oldest Profession, 8 Or. Rev. Int’l L. 307 (2006).

Arguing that the Framers used the Marque and Reprisal Clauses to create a constitutional framework that consolidated all incidents of national sovereignty in the federal government.

Alex Glashausser, What We Must Never Forget When it is a Treaty We are Expounding, 73 U. Cin. L. Rev. 1243 (2005).

Arguing that, in the view of the Framers, a treaty formed a qualitatively different sort of relationship than that created by an agreement or a compact.

J. Gregory Sidak, The Quasi War Cases and Their Relevance to Whether “Letters of Marque and Reprisal” Constrain Presidential War Powers, 28 Harv. J.L. & Pub. Pol’y 465 (2005).

Arguing that the structure of the Constitution–including the Constitution’s prohibition on states issuing letters of marque and reprisal–indicates that the Framers viewed letters of marque and reprisal as a supremacy issue rather than a separation of powers issue.

Chrystal Bobbitt, Domestic Sovereign Immunity: A Long Way Back to the Eleventh Amendment, 22 Whittier L. Rev. 531 (2000).

Arguing that one of the purposes of Article I, Section 10 was to limit state power and alleviate the failures of the Articles of Confederation, which allowed states to act as sovereigns.

Contending that the language of Article I, Section 10 reflects the Framers’ conscious understanding that treaties did not encompass the entire field of international agreements.

Matthew J. Gaul, Regulating the New Privateers: Private Military Service Contracting and the Modern Marque and Reprisal Clause, 31 Loy. L.A. L. Rev. 1489 (1998).

Proposing that the Framers’ decision to give Congress the sole power to issue marque and reprisal letters reflected the Framers’ view that Congress should be involved in all areas of military policy.

David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. Rev. 1791 (1998).

Responding to Laurence Tribe’s article “Taking Text and Structure Seriously” and arguing that there are forceful textual reasons not to carry Professor Tribe’s view about Article I, Section 10–that the term “treaty” does not include “agreements or compacts”–over to the Treaty Clause.

Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995).

Critiquing Bruce Ackerman and David Golove’s article, “Is NAFTA Constitutional?” and arguing that the Framers’ distinction in Article I, Section 10 between forbidden state treaties and permissible state agreements matches, to some degree, the distinction between Article II treaties and those executive agreements that the President may enter alone.

Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799 (1995).

Arguing that “constitutional moments” have transformed the meaning of the Treaty Clause and legitimized the congressional-executive agreement in treaty-making and that such an understanding is appropriate because the constitutional text can plausibly be construed to support such a theory.

Andrew T. Hyman, The Unconstitutionality of Long-Term Nuclear Pacts that are Rejected by Over One-Third of the Senate, 23 Denv. J. Int’l L. & Pol’y 313 (1995).

Contending that international jurist Emmerich de Vattel’s definition of “treaty” was commonly relied upon by public figures during the early years of the Constitution.

Sharon G. Hyman, Executive Agreements: Beyond Constitutional Limits?, 11 Hofstra L. Rev. 805 (1983).

Documenting early twentieth century scholarly debates over the original meaning of the word “treaty.”

Yale Law Journal, The Constitutional Division of Control Over the Making of International Agreements, 54 Yale L.J. 211 (1945).

Arguing that Article I, Section 10’s delineation between instruments of “treaty, alliance or confederation” and instruments of “agreement or compact” prove that the Framers believed there were international agreements other than treaties that the federal government may enter into.

Abraham C. Weinfeld, What Did the Framers of the Federal Constitution Mean by “Agreements or Compacts”?, 3 U. Chi. L. Rev. 453 (1936).

Reviewing the proceedings at the Constitutional Convention to ascertain the meaning of the terms “agreement,” “compact,” and “treaty.”