crimes, the constitution & the common law
jfnbl at earthlink.com
Mon Apr 14 16:43:04 PDT 2008
At 1:31 PM -0700 4/14/08, Sean Wilson wrote:
>What about this line of logic. Back in 1787, weren't crimes defined
>by the common law? And wouldn't, therefore, the crimes clauses in
>the 1787 document NOT be a limitation on the federal police state
>per se, but rather upon which branch of government, the Congress or
>the Courts, could define something as criminal? Here is what I am
>saying: wouldn't an "originalist" say that the Supreme Court had
>the power to declare federal crimes that violated natural law, and
>that the Congress had power in this regard only as indicated above?
>(Alternatively stated, when did criminal law stop being governed by
>common law and become totally statutory)?
I wouldn't formally abandon the idea that the Courts, like the rest
of the government, were of limited powers. To the extent criminal
liability has common law origins, it's useful to consider Holmes'
formulation-- that the common law is discovered rather than declared
by the judiciary. To the extent criminal liability under the common
law was defined or declared it was by a constabulary empowered with
public authority that "presented" charges, and juries (grand and
petit) drawn from the public that indicted and convicted. The
judiciary-- in the formulation of jury instructions and setting aside
convictions, for example -- ascertained and applied the common law
premises and contours of criminal liability, but it didn't "make"
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