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ArtI.S8.C10.3 Extraterritorial Reach

Article I, Section 8, Clause 10:

[The Congress shall have Power . . . ] To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; . . .

Since this clause contains the only specific grant of power to be found in the Constitution for the punishment of offenses outside the territorial limits of the United States, a lower federal court held in 19321 that the general grant of admiralty and maritime jurisdiction by Article III, Section 2, could not be construed as extending either the legislative or judicial power of the United States to cover offenses committed on vessels outside the United States but not on the high seas. Reversing that decision, the Supreme Court held that this provision “cannot be deemed to be a limitation on the powers, either legislative or judicial, conferred on the National Government by Article III, § 2. The two clauses are the result of separate steps independently taken in the Convention, by which the jurisdiction in admiralty, previously divided between the Confederation and the states, was transferred to the National Government. It would be a surprising result, and one plainly not anticipated by the framers or justified by principles which ought to govern the interpretation of a constitution devoted to the redistribution of governmental powers, if part of them were lost in the process of transfer. To construe the one clause as limiting rather than supplementing the other would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to both the states and the National Government powers which were common attributes of sovereignty before the adoption of the Constitution. The result would be to deny to both the power to define and punish crimes of less gravity than felonies committed on vessels of the United States while on the high seas, and crimes of every grade committed on them while in foreign territorial waters.” 2 Within the meaning of this Section, an offense is committed on the high seas even when the vessel on which it occurs is lying at anchor on the road in the territorial waters of another country.3

United States v. Flores, 3 F. Supp. 134 (E.D. Pa. 1932). back
United States v. Flores, 289 U.S. 137, 149–50 (1933). back
United States v. Furlong, 18 U.S. (5 Wheat.) 184, 200 (1820). back