Is the Constitution Antiquated; W. McElroy

Paragraph 1 is an example of what many consider to be antiquated language in the Constitution, particularly with reference to the terms "Letters of Marque and Reprisal" and "Bill of Attainder." Yet many terms con sidered to be antiquated not only have rele vance to our modern day, but they also offer a window into the attitudes and historical events that created the United States. Only by understanding their context is it possible to understand the issues to which the Constitu tion speaks-then, and now. Letters of Marque A letter of marque--or letter of reprisal-is the means by which a government authorizes a Wendy McElroy is a contributing editor of The Freeman. 25 civilian to arm a private ship in order to attack and plunder the merchant ships of an enemy nation during war. This is the meaning the term had acquired by the eighteenth century. In ear lier use, it referred to the means by which a gov ernment righted a private wrong against one of its citizens. For example, if an English trader had his goods stolen in Holland and could not receive satisfaction through the Dutch legal sys tem, the English government might grant him a letter of marque. He was then authorized to seize any Dutch ship to regain the value of the goods stolen from him. By 1700, however, the letter of marque had become an instrument of state by which government could expand its naval power during war.

Private parties who met certain require ments, such as the posting of a security bond, could arm what was called a "private ship of war" and legally plunder enemy merchant ships. Such authorized parties were called pri vateers by their own government and pirates by the enemy. After being adjudged as "lawful prize" by a court, the seized goods became the property of the privateer. This was his pay ment. Thus, the government was able to dis rupt the commerce of an enemy nation with out spending money. Letters of marque assumed importance in American history as a response to the Pro hibitory Act passed by Great Britain in 1775. By this Act, the rebellious colonies were stripped of protection by the English crown. Trade between the colonies and British mer chants was forbidden; the seizure and plunder 26 THE FREEMAN/IDEAS ON LIBERTY • NOVEMBER 1999 of American ships was encouraged. In tum, the Continental Congress issued letters of marque and reprisal that empowered colonial privateers to loot British merchant ships.

The "Instructions to the captains and com manders of private armed vessels which shall have commissions of letters of marque and reprisal," issued by Congress on May 2, 1780, offer a sense of the restrictions placed on pri vateers. The primary restriction limited attacks to vessels owned by traders of the enemy nation. The private ships of war were "to pay a sacred regard to the rights of neutral powers." The purpose of this restriction was partly to conform with international law and partly to avoid turning neutral nations into hostile ones. The privateer was ordered to "bring such ships . . . to some convenient port" where an Admiralty court could judge whether the plunder was lawful. Privateers were not to "kill or maim,-or, by torture or otherwise, cruelly, inhumanly, and contrary to common practice of civilized nations in war, treat any person or persons surprised in the ship." On April 16, 1856, most of the major mar itime powers signed an international agree ment called the Declaration Respecting Mar itime Law-more popularly known as the Declaration of Paris-which abolished priva teering. The United States declined to sign on the grounds that its navy was so small that let ters of marque were required to bolster it dur ing war. Without.the letters the United States would be at a disadvantage versus European nations with large standing navies.

During the Spanish-American War (1898), Spain and America-neither of which was a party to the Declaration of Paris-agreed to eschew privateering. It was not until the Hague Conferences at the dawn of the twenti eth century, however, that the United States officially renounced the use of letters of marque and reprisal. Thus, the term is anti quated in that it no longer applies to an activ ity in practice. Bill of Attainder The term "Bill of Attainder" occurs not only in Section 10 ofArticle I (prohibiting the States), but also in Section 9, paragraph 3, "No Bill of Attainder or ex post facto Law shall be passed" (prohibiting the Congress). In his book The Supreme Court: How It Was, How It Is, Chief Justice William H~ Rehnquist offers this definition: "A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial" (p. 166). The prohibition against bills of attainder was to prevent anyone from being tried by the legis lature rather than by the judiciary. Rehnquist explains that the phrase refers to a "precise legal term which had a meaning under Eng lish law at the time the Constitution was adopted."

In English common law, when a person was condemned to death or deemed unfit to live (for example, condemned as an outlaw), he was labeled "attaint"-tainted or corrupted in his blood-and his land was forfeited to the crown. Because the blood was corrupted, a man whose "outlawry" was sufficiently egre gious could neither inherit land nor transmit it to his children. Parliament began to use bills of attainder in 1459 to exercise judicial authority. The method became infamous during the reign of the Tudor monarchs-especially Henry VIII-who blatantly used it to punish political dissenters, many of whom could be found legally guilty in no other manner. Because bills of attainder had been used in colonial America, the framers of the Constitu tion were well aware of this abuse. Thus, Arti cle II, Section 3, reads, "The Congress shall have power to declare the punishment of trea son, but no attainder of treason shall work corruption of blood, or forfeiture except dur ing the life of the person attainted."

Even the exigencies of the Civil War did not entirely remove the American suspicion of bills of attainder. On July 17, 1862, a wartime Congress passed the Confiscation Act direct ed at citizens of the Confederacy. The inten tion of the Act was to "suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels." But the term of confiscation was specified to be for the life span of the offender, with his children carrying no taint of blood and thus able to inherit.

Although "bill of attainder" may seem to be as antiquated a term as "letters of marque," some political commentators believe that recent asset-forfeiture laws con stitute bills of attainder under another name. These laws allow authorities to seize the property of people who have neither been tried nor convicted of crimes. For example, by power of legislation alone, authorities may confiscate homes, boats, and cars in which drugs are found. Organizations such as the Institute for Jus tice believe that such seizure without trial is a violation of constitutionaland civil rights. The Bill of Attainder Project (www.isc-durant. com/tom/billofattainder/) is attempting to have the phrase defined in law as "A law or legal device which outlaws people, suspends their civil rights, confiscates their property, Is THE CONSTITUTION ANTIQUATED? 27 punishes or puts people to death without a trial." The debate over asset forfeiture raises an intriguing point. Although the specific form of an abuse mentioned in the Constitution may no longer exist, the abuse may have merely assumed another shape.

In sculpting the Constitution-and espe cially in using certain terms repeatedly-the framers were addressing real political abuses they had witnessed firsthand. Those specific forms of the abuse may no longer exist, but the appetite of some human beings for power and plunder seems to remain unchanged through time. It is necessary to look beyond the quaintness of any specific term and ask, what current legal practice corresponds, in its essence, with one that is prohibited by the Constitution? 0 THE CLASSIC BLUEPRINT FOR A JUST SOCIETY llHIIE ILAW By FREDERIC BASTIAT New Introduction by WALTER E. WILLIAMS Foreword by SHELDON RICHMAN "Phenomenal! An amazing and timeless treatment of the cost of using government to solve problems. " - Russell Roberts, author of The Choice ..., . o 3 copies for $10.00 postpaid 96 pages with index, paperback (quantity discounts available) Please send check or money order to: FEE, 30 South Broadway,Irvington-on-Hudson,NY 10533 Credit card orders: 1-800-452-3518 .....................

o Potomac Principles Emotive Policymaking by Doug Bandow W e live in an age of paradox. Media sat uration following events like the mur ders at Columbine High School makes it appear that violence surrounds us. Yet the crime rate has been falling and school shoot ings remain extremely rare. In contrast, the serious violence that pervades some inner city schools never makes the news. Moreover, tragedies like Columbine almost always launch a spate of counterproductive policy initiatives-such as gun control. Although inadequate morals rather than inad equate laws led to the Columbine murders, activists, interest groups, and politicians immediately dusted off their old proposals to launch anew. The temptation to ban firearms is under standable. Anything seems reasonable in an attempt to save even a few people who die by bullet every year. Yet private possession of weapons does not automatically lead to their misuse: heavily armed societies like Israel and Switzerland have only a fraction of our violent crime. America's problem is the will ingness to misuse guns, not the availability of guns.