Articles

Constitutional War Powers: Thomas Jefferson and the Barbary Pirates

October 6, 2019


Immediately after the Revolutionary War, the
US lost the protection of the naval forces of Britain and France in the Mediterranean. And the Barbary pirates were the naval forces
of the, uh, satellite states of the Ottoman Empire, who essentially demanded tribute or
would seize commercial vessels and hold as prisoners and hostages their crews, and sometimes
even put them into slavery. Jefferson heard about the seizures of American
commerce, and he realized that something had to be done, but he was against paying tribute
or ransom. So, when the issue came up in Jefferson’s
time, Jefferson did explicitly authorize the naval forces that Congress had provided him
to defend American commerce, and if they saw a Tripolitan, uh, Barbary pirate ship coming
out to attack a, uh, US commercial vessel, they were given instructions to go ahead and
prevent that attack, and to attack those vessels. He did not inform Congress of those specific
instructions. It’s important to emphasize that Jefferson
did nothing wrong. When Congress provided him with these very
impressive ships, their purpose was to defend American commerce in the Mediterranean. That’s why they were built. That’s why Congress paid for them. The notion that there had to be a declaration
of war before any kind of military action went on between the United States and some
other foreign country, that was not anything that occurred to any of the major framers
of the Constitution at the time. They regarded the use of these vessels as
purely defensive. They were going to be going out into the Mediterranean
and protecting American commerce, and the Tripolitan, or Tunisian, or Algerian ships
that would come out and attack our commerce had already proved to be aggressive and offensively
attacking. The issue of a declaration of war never came
up. No one suggested that these actions were illegal
because of a lack of declaration of war. The important precedent that an objective
person would derive from these is that first of all, that Congress can authorize use of
military force without a declaration of war, just by providing the president with frigates
to defend American commerce. This is the way our Constitution works with
power over the same issue distributed to different branches. So, um, it’s very important that people realize
that you can’t simply resolve these kinds of disputes in our constitutional system by
saying, oh the president has this power, commander in chief. Oh, the Congress has that power, power to
declare war. That doesn’t work, that’s not what the framers
intended. The framers intended to give powers to both
branches and, indeed, to the Supreme Court as well. To be able to affect the very same issues
so there would be conflict between the branches based on real power. So the, the Barbary pirates then are a very
important part of our constitutional history, and they show that Congress, uh, can give
the pre, president powers to use force largely in that case in self-defense, um, in a continuing
dispute with foreign powers.

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