Privateers

There’s no ‘constitutional right’ at work here, in spite of the headline, but you can get Congress’ permission.

It may not get much publicity, but there it is, smack-dab in Article I, Section 8 of the Constitution: Congress has the power to grant citizens “letters of marque and reprisal.” Meaning that, with Congress’s permission, private citizens can load weapons onto their fishing boats, head out to the high seas, capture enemy vessels, and keep the booty. Back in the day, these patriotic pirates were known as “privateers.” At the start of the Revolutionary War, America had a meager navy, so we had to rely on these privateers, who captured nearly two thousand British vessels and confiscated vast amounts of food, uniforms, weapons, and barrels of sherry....

The Founding Fathers were big fans of privateers. Late in life, John Adams wrote glowingly about the 1775 Massachusetts law that first legalized them, calling it “one of the most important documents in history. The Declaration of Independence is a brimborion in comparison with it.”

The author is playing this for laughs, while trying to make the point that originalist thinking is foolish. 

For several minutes, we spoke about originalism and the Constitution. Though it’s obscure, the privateering clause highlights that this document—for all its brilliance and prescience—was written in a vastly different time. Some passages—such as those about the “blessings of liberty” and “equal protection”—are timeless. But others are clearly the product of the eighteenth century.

He would not know this, but there has been quite a lot of recent thought given to restoring privateering. During the early phases of the Global War on Terror, it was regularly discussed as a way of making the market work against the problem. Not just at sea, either: just as land-based forms were used in the 19th century, known as ‘filibusters,’ so too there was considerable thought given to licensing private armies with similar privileges to seize prizes to fight terrorist forces in Africa and elsewhere. 

Probably the best known example is Erik Prince of Blackwater fame, who proposed doing exactly that in Africa and in Ukraine. In the end the government decided that it preferred to keep direct control over armed forces, but consider how poorly that strategy ultimately fared. Really the Russian government did what Prince wanted with the Wagner group, fairly successfully. Those forces proved unreliable against American-backed irregulars in Syria, and haven’t been effective in Ukraine, but they were pretty effective against Islamist irregulars across Africa. 

China, meanwhile, is effectively using a ’gray zone fleet’ of fishing privateers to war against the Philippines over control of the sea lanes and fishing areas. It’s proving quite difficult to contest effectively. Privateers are in play right now. 

Less piratical but still more on the side of militia forces, several US States maintain naval militia to this day. 

It may be that walking around in a tricorn hat and writing petitions with a quill pen s carrying a lot of the weight of making this originalist idea seem dated. With a little more attention, like other constitutional matters it too proves to be of continuing interest.