Constitutionality of Federal Crimes

Robert Sheridan rs at robertsheridan.com
Tue Oct 2 09:44:28 PDT 2007


Maybe it does, maybe it doesn't.  The fact is that the Constitution,  
like any imperfectly written indenture, can only address certain high  
points of contention.  Left unsaid are many of the more fundamental  
attitudes that produced expression on the items that were identified  
in writing.   Thus it is frequent that constitutional expressions  
bump into each other in real situations, and also why, in order to  
understand the expressions, we study the attitudes that produced  
them.  The whole process is more fluid, perhaps, than we might like  
to admit.  Hence the need for courts to slice the baloney where they  
will.

rs
sfls
On Oct 2, 2007, at 9:12 AM, Francisco Forrest Martin wrote:

> The most explicit text in the Constitution for authorizing Congress  
> to criminalize certain acts is, of course, the Define and Punish  
> (violations of the law of nations) Clause.  Given that the law of  
> nations governs not only interstate activities but also  
> intranational activities (e.g., life, liberty, property, expression  
> etc), the Clause has a greater reach in  criminalizing acts than  
> does the Commerce Clause.
>
> Francisco Forrest Martin
>
> -----Original Message-----
> From: Sean Wilson
> Sent: Oct 2, 2007 10:53 AM
> To: John Bickers , conlawprof at lists.ucla.edu
> Subject: Constitutionality of Federal Crimes
>
> ... that is amazing. I confess not to understand it. What is the  
> constitutional rationalization for prosecuting drugs? I had always  
> thought that once the commerce clause interpretation became so wide  
> open, that the federal criminal police state had been constructed  
> right behind it. That the one was sort of a blocker for the other.  
> I mean, just as statutes in the 1900s began addressing the general  
> welfare, so, too, did federal crimes begin addressing broad  
> activities. I had no idea that there existed the idea today that  
> the federal government could not prosecute for murder. That is  
> completely amazing.
>
> Let me ask: if murder affects commerce in the way that  
> discrimination does, why couldn't they pass a law criminalizing  
> it?  Doesn't it affect transit? Are not the guns moved in trade?
>
> P.S. Thanks for the information.
>
> Dr. Sean Wilson, Esq.
> Penn State University
> Website: http://ludwig.squarespace.com/home/
> SSRN papers: http://ssrn.com/author=596860
> Conference papers: http://ludwig.squarespace.com/research-agenda/
>
>
>
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