Americans have grown accustomed to the way old ideas get dusted off, stripped of context and paraded as bold innovation. Sen. Mike Lee’s flirtation with reviving letters of marque — essentially licensing private actors to wage violence in the name of the United States — belongs squarely in that category. It is not a serious answer to modern problems. It is a performative toughness, and it should be rejected as such.
Yes, the phrase “letters of marque and reprisal” appears in Article I of the Constitution. That fact alone does not confer wisdom, practicality or legitimacy on proposals to resurrect them in the 21st century. Constitutional text is a starting point for analysis, not a substitute for it.
Historically, letters of marque were a tool of the 18th century. Governments lacking standing navies authorized private shipowners to capture enemy vessels during declared wars. The system operated in a world without modern international law, without professionalized armed forces and without global norms governing state responsibility for violence. Even then, privateering was controversial, frequently abusive and notoriously difficult to control. That is precisely why it fell out of favor — and why the civilized world abandoned it.
The monopoly on legitimate violence is not an accident of modern governance; it is a safeguard against chaos, corruption and the very abuses that privateering historically produced.
Lee ignores two centuries of legal development. Modern international law draws sharp distinctions between lawful combatants and criminals, between state action and private violence. Outsourcing force to profit-seeking actors collapses those distinctions. It does not strengthen the rule of law; it corrodes it. When violence is incentivized by bounty or seizure, restraint becomes a liability and excess becomes a feature.
Congress could, in theory, authorize letters of marque. But constitutional permissibility is not the same as constitutional prudence. Congress also possesses the power to declare war; it does not follow that it should delegate that power to mercenaries. Nor does the proposal survive even minimal scrutiny as a response to contemporary security challenges. Transnational criminal organizations are not enemy states flying flags on the high seas. They are embedded in civilian populations; intertwined with legitimate commerce; and already the subject of complex law enforcement, intelligence and diplomatic efforts. Introducing privatized violence into that mix would invite catastrophic mistakes, civilian casualties, and international incidents for which the United States would ultimately bear responsibility — whether or not the trigger was pulled by someone wearing a government uniform.
There is also an uncomfortable irony at the heart of this proposal. Sen. Lee claims to be a defender of limited government and constitutional restraint. Yet few ideas represent a greater abdication of core governmental responsibility than outsourcing the lawful use of force to private actors. The monopoly on legitimate violence is not an accident of modern governance; it is a safeguard against chaos, corruption and the very abuses that privateering historically produced.
If enacted, a modern letter-of-marque regime would almost certainly collide with international law, expose Americans to retaliation and undermine alliances. Other nations would not parse the fine print of congressional authorizations; they would see armed Americans operating for profit and respond accordingly. The result would not be deterrence. It would be escalation, and the normalization of conduct the United States has spent generations condemning.
Perhaps most troubling is the way this idea reflects a broader habit in contemporary politics: treating constitutional language as a kind of incantation. Say the words often enough — “Article I,” “Founders,” “enumerated powers” — and hard questions supposedly evaporate. They do not. The Founders granted Congress the power to issue letters of marque because it made sense in 1787. They also trusted future generations to exercise judgment rather than nostalgia.
The real work of governing lies not in reviving relics but in strengthening institutions capable of meeting present realities. That means accountable law enforcement, serious diplomacy and, when necessary, the lawful and disciplined use of military force under clear chains of command. It does not mean deputizing modern privateers and hoping constitutional semantics will clean up the mess afterward.
In the end, Sen. Lee’s proposal is not unconstitutional. That is a low bar. The higher bar — seriousness, legality in a modern world and fidelity to the rule of law — it does not meet. Letters of marque belong where they have rested for generations: in history books, not as blueprints for contemporary American policy.