The Clause
In: The Massachusetts review: MR ; a quarterly of literature, the arts and public affairs, Band 47, Heft 2, S. 278-279
ISSN: 0025-4878
In: The Massachusetts review: MR ; a quarterly of literature, the arts and public affairs, Band 47, Heft 2, S. 278-279
ISSN: 0025-4878
In: American journal of international law: AJIL, Band 98, Heft 3, S. 546-549
ISSN: 2161-7953
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 ...
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In: HERITAGE GUIDE TO THE CONSTITUTION (3d ed.), Forthcoming
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In: The Heritage Guide to the Constitution, Fully Revised 2d ed. (Washington, D.C.: The Heritage Foundation and Regnery Publishing, 2014), pp. 107-08.
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In: ENCYCLOPEDIA OF THE SUPREME COURT, David S. Tanenhaus, ed., Vol. 4, p. 436, MacMillan Reference USA, 2008
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Article IV's command that "the United States shall guarantee to every State in this Union a Republican Form of Government" stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the "Republican Form of Government" Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case, leading many to predict that its eventual demise is only a matter of time. The interpretive possibilities inherent in a judicially enforceable Guarantee Clause have tantalized generations of constitutional theorists, leading to a significant body of research attempting to uncover what was meant by the provision's oblique reference to "a Republican Form of Government." But this research has almost completely ignored a separate inquiry that is equally critical to understanding the provision's meaning and significance — namely, what it means for the United States to "guarantee" such republican government to the states. This Article seeks to shed new light on the original meaning of the term "guarantee" in the Guarantee Clause by looking to an unexpected source — namely, eighteenth-century treaty practice. The language of the Guarantee Clause closely parallels language that was frequently used in seventeenth- and eighteenth-century treaties. The interpretation of such treaty provisions was informed by well-settled background principles of international law, which attached particular legal significance to the term "guarantee." As used in eighteenth-century treaties, the term "guarantee" signified a diplomatic commitment whereby one nation pledged its support to the protection of some preexisting right or entitlement possessed by another sovereign. Importantly, however, such provisions were deemed to exist solely for the benefit of the guaranteed sovereign and conferred no separate rights or entitlements on the nation pledging the guarantee. Viewing the Guarantee Clause through the lens of eighteenth-century treaty practice casts significant doubt on claims by modern scholars that the provision should be understood as a repository of judicially enforceable individual rights. Rather, both the text of the provision and contextual evidence regarding its original understanding strongly suggest that the provision more likely reflected a quasi-diplomatic, treaty-like commitment on the part of the federal government to its quasi-sovereign component states. This evidence lends new, and heretofore unappreciated, support to the Supreme Court's longstanding practice of treating Guarantee Clause claims as beyond the scope of judicial cognizance.
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In: Journal of Comparative Economics, Band 41, S. 367-385
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In: PS: political science & politics, Band 44, Heft 4, S. 850-852
Aage Clausen, professor emeritus in the Department of Political Science at Ohio State University, died in January 2011 at the age of 78. He was an extraordinary person who made major contributions as a scholar and teacher and he was a remarkable individual who was much beloved as a colleague and friend.
In: Index on censorship, Band 17, Heft 8, S. 39-39
ISSN: 1746-6067
In: Third world quarterly, Band 5, Heft 1, S. 1-5
ISSN: 1360-2241
In: American journal of international law: AJIL, Band 15, Heft S3, S. 185-208
ISSN: 2161-7953
In: American journal of international law: AJIL, Band 15, Heft S3, S. 247-273
ISSN: 2161-7953
In: American journal of international law: AJIL, Band 15, Heft S3, S. 235-247
ISSN: 2161-7953