Wuerth: The Captures Clause

Ingrid B. Wuerth (Vanderbilt Univ. - Law) has posted The Captures Clause (University of Chicago Law Review, forthcoming). Here's the abstract:

The Captures Clause of the United States Constitution gives Congress the power to “make Rules concerning Captures on Land and Water.” A variety of courts, scholars, politicians and others have recently cited the Clause to support conflicting arguments about the scope of Congress’s power to initiate and prosecute war. Some claim or assume that the Captures Clause gives Congress power over the taking and detention of people, while others conclude that the power is limited to property only. Similarly, those who view Congress’s power broadly understand the Captures Clause as giving Congress the power to determine what (or whom) may be seized both as method of initiating conflict and as measure of war prosecution. Others maintain that the Clause only gives Congress power over the adjudication and division of property seized by armed private vessels. Virtually all of these accounts rely on original history, yet none examines the Captures Clause in any detail.

This Article does so, tracing the meaning of captures through British and Colonial Admiralty documents, prominent works of international law, the Revolutionary War and Articles of Confederation, and the drafting and ratification of the Constitution. The result is that the eventual language in the Constitution could have been plausibly understood in a variety of ways prior to the Revolutionary War, but it probably did not include the power to determine what or whom could be taken. The Continental Congress used the word “captures” in a significantly different way – to authorize what goods (but not what people) could be taken by both public and private vessels. This is also the best reading of the Constitution’s text.

The Captures Clause illuminates a small but significant area of constitutional history, for captures were extremely important throughout the eighteenth century. And the Captures Clause sheds important light on the meaning of the Letters of Marque and Reprisal, Declare War, and the Commander-in-Chief Clauses. Contrary to the views of almost everyone writing on these topics, the first gave Congress only the power to license private vessels to make captures – it was the Captures Clause that gave Congress the power to determine what property was subject to capture by both public and private forces. This, in turn, supports at least a relatively broad reading of the Declare War Clause, because it gives Congress a power closely tied to the initiation of war. It also means that at least some questions of combat strategy were lodged with Congress, narrowing the possible scope of the Commander in Chief Power. Finally, however, a careful look at the Captures Clause also illustrates gaps and overlaps in the Constitution’s allocation of war powers.