The Quasi War Cases - and Their Relevance to Whether "Letters of Marque and Reprisal" Constrain Presidential War Powers

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I. INTRODUCTION

Constitutional scholars cite three Supreme Court decisions arising from the undeclared Quasi War with France in 1798-1800 as support for the proposition that Congress may authorize war of any magnitude, and that, except in case of sudden or imminent attack on the United States, this congressional authority displaces any right of the President to use military force of even modest magnitude without prior congressional authorization. The textual hook claimed by these scholars for so reading Bas v. Tingy, (1) Talbot v. Seeman, (2) and Little v. Barreme (3) is the phrase in Article I, Section 8 of the Constitution that immediately follows the grant to Congress of the power "To declare War"--namely, the power to "grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." (4) These additional words, it is argued, are placed in the War Clause because the Framers intended that Congress, and Congress alone, have the power to authorize not only "general" or "perfect" war through a formal declaration of war, but also "limited" or "imperfect" war. It is further argued that the temporal proximity of the three Quasi War decisions to the framing of the Constitution strongly implies that the Framers meant to constrain the President's ability to use military force in a manner short of full-scale war.

The list of scholars subscribing to this interpretation of the War Clause is long and imposing. In a frequently cited article published during the Vietnam War, Charles Lofgren argued that the Framers' grant to Congress of the power to issue letters of marque and reprisal created a residual category of all forms of undeclared war. (5) The Constitution, in his view, grants to Congress alone the power to commence war, whether by formally declaring war or by authorizing reprisals. (6) Abraham Sofaer, later a federal judge and legal adviser to the State Department, offered a similar interpretation of the Quasi War cases several years after Lofgren. (7) With the notable exception of Eugene Rostow, (8) other scholars writing on this topic during and shortly after the Vietnam War uniformly embraced that interpretation, (9) as have the scholars writing thereafter on the war powers. Dean Harold Hongju Koh of Yale Law School, for example, reads Bas and Talbot to constitute a "delineation and delimitation of the executive's authority [to commence] limited hostilities by means other than formally declared war." (10) Similarly, John Hart Ely read these cases to support his conclusion that the original meaning of the War Clause was that "all wars, big or small, 'declared' in so many words or not ... had to be legislatively authorized." (11) The other contemporary scholars subscribing to this same interpretation are numerous. (12)

Part II of this essay analyzes the original understanding of "letters of marque," "reprisal," and "captures on land and water." (13) As used by legal scholars when the Constitution was drafted, these words had meanings that were both well understood and not dependent upon the allocation of war-making power between the legislative and executive branches.

Part III discusses the facts, holdings, and dicta of the Quasi War cases. Properly read, these cases concerning the legality of capturing ships belonging to or collaborating with France during the Quasi War do not illuminate how the war powers should be allocated between Congress and the President.

Part IV shows that the Supreme Court has never read this trio of cases, or any one of them individually, to support the proposition for which today's scholars routinely cite them. To the contrary, in the twenty decades since the Quasi War took place, the Court has, with rare exception, cited these cases only for propositions concerning the legality of capturing ships at sea. Nonetheless, the contemporary misinterpretation by scholars of the Quasi War cases found a receptive audience in 2000 in the U. …

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