crimes, the constitution & the common law

[jfn]

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" 
criminal laws.

John Noble