“To define and punish Piracies and Felonies committed on the high seas, and offenses against the law of nations;” Article 1, Section 8, Clause 10, US Constitution
This clause is known as the Define and Punish Clause.
It has two parts. Congress has the power to define and punish:
• Piracies and Felonies committed on the high seas
• Offenses against the law of nations
The Framers were not too concerned about defining and punishing piracy. They felt that piracy was so well defined in international law that a general statute punishing the crime would be sufficient. The current statute states: “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” According to Jack L. Goldsmith, Harvard Law School, writing for Heritage Foundation.
“The define-and-punish power grew out of the Founders’ concern that the states might not adequately punish infractions of the law of nations (such as attacks on ambassadors) and, in failing to do so, might thereby implicate the international responsibility of the entire United States.” Per Jack L. Goldsmith This was a weakness in the Articles of Confederation.
The law of nations seems to be a loosely defined set of concepts that are generally accepted by the people of most nations as being acceptable/unacceptable behavior. People affected by this law would be ambassadors or other representatives of the US Government and people in the military serving abroad.
Congress has used the Define and Punish Clause as a basis for enacting important civil law relating to foreign affairs, including the Foreign Sovereign Immunities Act and the Torture Victim Protection Act.
With the “define and punish” clause, we the people give Congress the power to step outside the territory of the United States to fulfill its obligation to maintain law and order.
We the people get:
• Protection for citizens and ships of the United States when abroad
• Supervision of the actions of US citizens abroad
• Protection from arguments with foreign nations as a result of actions by private citizens
References:
Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950
http://www.heritage.org/constitution/#!/articles/1/essays/48/define-and-punish-clause
US Constitution
Reclaiming the Shining City 