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October 12, 2012 1:41 PM   Subscribe

How can I find out if and when a particular clause in the US Constitution has been invoked?

I'm specifically referring to Article 1, section 8, clause 10, the "maritime crimes clause." I'm interested in the phrase "Offenses Against the Laws of Nations," and how it has been interpreted by the courts. I want to know if its use has expanded beyond maritime piracy and into, for instance, acts of terrorism.

Is there some database I can use to find out when the specific clause has been cited? I have access to a good university library but am not familiar with the resources for this kind of legal research.
posted by synecdoche to Law & Government (13 answers total) 2 users marked this as a favorite
Hopefully someone will have a more targeted answer - if not, you can set the phrase as a google alert. Won't get you through paywalls but perhaps will give you enough to get started.
posted by rada at 1:48 PM on October 12, 2012

Ask your librarian there - if the library has access to Lexis or Westlaw you should be in good shape.
posted by exogenous at 1:48 PM on October 12, 2012 [3 favorites]

Here's a relevant law review article
posted by exogenous at 1:51 PM on October 12, 2012

Many university libraries subscribe to LexisNexis Academic. This is not the full LexisNexis that a law school subscribes to, but should provide much for you on this kind of question. You can look up this clause by selecting US Legal > Federal Statutes, Codes & Regulations, and then browsing Constitution of the United States. The article lists the following references:
2 Am Jur 2d, Admiralty § 5.
1 Federal Criminal Trials (Matthew Bender), ch 1, Jurisdiction and Venue § 1-1.
1-VIII Benedict on Admiralty, Jurisdiction, The Jurisdiction of Federal and State Courts to Hear Maritime Cases § 130.
Van der Vyver. Prosecuting Offenses Against the Law of Nations in the United States. 20 Emory Int'l L Rev 473, Fall 2006.
Colangelo. Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law. 48 Harv Int'l LJ 121, Winter 2007.
Jarvis. Constitutional Constraints on the International Law-Making Power of the Federal Courts. 13 J Transnat'l L & Pol'y 251, Fall 2003.
Van Alstine. Executive Aggrandizement in Foreign Affairs Lawmaking. 54 UCLA L Rev 309, December 2006.
Stephens. Federalism and Foreign Affairs: Congress's Power to "Define and Punish . . . . Offenses Against the Law of Nations". 42 Wm and Mary L Rev 447, December 2000.
Morley. Note: The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism. 112 Yale LJ 109, October 2002.
There are also interpretive notes on three subjects, Piracy, Drugs and narcotics, and Jurisdiction of federal courts.
posted by grouse at 1:51 PM on October 12, 2012

Besides Lexis, if you're a US citizen and very serious about this project you could always try to get your Congresscritter to ask the Congressional Research Service to look into it, at least at the US Supreme Court level (or find out if they already have).
posted by Wretch729 at 1:54 PM on October 12, 2012

(If you're Canadian you could coerce an American friend into doing it for you.)
posted by Wretch729 at 1:56 PM on October 12, 2012

Yes, there are databases that exist that are perfect for this search; Lexis and Westlaw would both allow you to search all law review articles and all court cases quite easily for the phrase.

The problem is that they are very (very!) expensive. But, I just did a quick google search, and it looks like some law libraries offer public access. I'd try to find a couple law libraries in your area, and then call them to ask about access to Westlaw or Lexis (either should be fine; there are some differences in the interface, but they access basically the same material).
posted by insectosaurus at 2:31 PM on October 12, 2012

Lexis Academic also allows you to search case law - under 'US Legal' choose 'Federal and State Cases'. So if you're just looking for cases that discuss that specific phrase, you can put the phrase in quotes and search all federal and state courts and you should get a pretty complete list which you can then filter down. It won't be as nicely organized as the citation reports you can get from Westlaw or Lexis, but Lexis Academic is widely available through university libraries. It also has a selection of law reviews if you want to track down some analysis.
posted by colbeagle at 2:42 PM on October 12, 2012

Ask your librarian there

...or your librarian here.

There are two ways to start this analysis - both of which have been alluded to above. You could either do a full text search for the phrase your interested in across a database of documents or you could consult one of the tools tailored to provide this exact thing. Both have advantages, but the latter might be more satisfying.

Full Text Search
The easiest (and cheapest) place to do this on Google Scholar. You'll see the radio button on the front search screen for "Legal Documents." This will limit your search to the law journals that normally appear in the google scholar search but also include the full text of most published legal opinions. Here's the search result for the phrase, "Offenses against the laws of nations" limited to cases only. 10 results. With the academic journal articles included, there are 74 results. This kind of search could be replicated on Westlaw Campus or Lexis Academic (described above) at an academic or public library--but probably with similar results.

If you're just after a sense of what they talk about, then reading those 10 cases might satisfy your inquiry and you can go live a happy life. The problem with the full text search, however, is that it's entirely possible that a court could easily cite this section and that concept without using the magic words that you've hit upon. If we've got something on the line more important than simple curiosity, we might do better to turn to an annotated statute.

Annotated Statutes
There are three big sources that provide the text of the Constitution with lists of related resources alongside the text: The United States Code Annotated (USCA), the United States Code Service (USCS), and The Constitution of the United States of America : analysis and interpretation. I've included links to the print versions in Worldcat, because consulting the print version allows for more serendipitous finding of related material and Worldcat will link you up to a nearby library that has it.

The USCA is published by West. The USCA is available on WestlawCampus (available in many academic and public libraries) and Westlaw (the expensive version). The USCS is published by Lexis, and similarly available on Lexis Academic -- which grouse has copied above. Analysis and Interpretation is prepared by the Congressional Research Service and published by the GPO ( it available online? Check -- It is!). These will all provide the text with notes of decisions (which you can then look up on Google Scholar or elsewhere) and, often more importantly, other research references (journal articles, legal encyclopedias, treatises, etc.).

That should get you started.
posted by GPF at 4:23 PM on October 12, 2012 [3 favorites]

The Founder's Constitution at the University of Chicago has some interesting early background, commentaries, and cases. It's a really cool resource in general.
posted by rustcellar at 10:07 AM on October 13, 2012

The Constitution of the United States of America: Analysis, and Interpretation which GPF mentioned above is available online here. The chapter on Article 1 is here. There is also a 2010 supplement.

It doesn't mention every case but it has the important ones.
posted by interplanetjanet at 10:55 AM on October 13, 2012

2nding the advice to chat with a law librarian. We love questions like this. But if you want a good online source, I'd recommend starting with Cornell's Annotated Constitution, which has some useful footnotes and information on what you're looking for.

Also, you might try using Google Scholar, limiting your search to cases. It's not as good as Westlaw and Lexis, but it has a better natural language search and you can find a surprising amount of information that way.

Oh. And use the search term admiralty in addition to maritime.
posted by eleanna at 7:45 PM on October 13, 2012

depending on whether you use lexis or westlaw, you may be able to simply shepardize or keycite the clause you're interested in. this will give you many cases, law review articles, and other documents that have cited the clause.
posted by anthropomorphic at 11:11 AM on November 2, 2012

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