Original Crime
Is (part of) the 6th amendment (partially) redundant?
Aug 8th
Article III, Section 3:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
The 6th Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In 1789, before the 6th amendment was ratified, it would seem a criminal defendant would have had the right to trial by jury. That trial will have been held in the state wherein the crime was committed.
The 6th amendment also guarantees the right to trial by jury, and requires that the trial be held in the state (and distract–thats new) where the crime was committed. The 6th amendment adds the right to a speedy and public trial, requires that the jury be impartial (though I’m not sure what good a partial jury is), and some other stuff.
So is part of the 6th amendment redundant if Article III already protected these rights? I don’t know. I just had never noticed this duplicative language before.
Update: Thanks to tipster Mike below. John Marshall Harlan (who else) addressed just this question in Callan v. Wilson in 1888. Harlan FTW.
Original Crime – The Federal Authority to Create Federal Criminal Laws
Aug 8th
According to Justice Breyer in Comstock, Congress has the power to create a statute that “is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others”
In other words, if Congress has the power to create the federal criminal law, they also have the power to do what is “necessary and proper” to deal with those crimes–such as punishing the violators. Before getting into what a federal crime is, in this post I seek to systematize what the original “federal authorities” were that “permit[ted] Congress to create federal criminal laws” as they existed in 1789.
I think these authorities can be lumped into four categories.
The first category deals with Congress’s clearly enumerated powers.
- “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”
- “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
- “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures”
- “To provide for the Punishment of counterfeiting the Securities and current Coin of the United States”
- “To establish Post Offices and post Roads;”
- “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
- To establish “uniform Laws on the subject of Bankruptcies throughout the United States”
For example, Congress could create a crime to punish someone who counterfeits security, or messes with post offices, or violates patents, or doesn’t pay taxes. The commerce clause fits in this category not its modern inception–where it can mean just about anything–but according to its original meaning. If some bandit interfered with the flow of goods travelling from New York to Pennsylvania, Congress would have the power to pass criminal laws that are necessary and proper to effectuate its power to regulate interstate commerce. I will even grant something like the Mann Act inclusion in this category, because it involves something (white slaves in this case) crossing state lines. I will leave aside the moment whether Congress has the power to criminalize the growing of wheat on a farm (Wickard) or pot in your backyard (Raich).
The second category deals with Congress’s authority over war and the armed forces:
- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
- To provide and maintain a Navy;
- To make Rules for the Government and Regulation of the land and naval Forces;
- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
- To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
These provisions are the basis for the original Article of War and later the Uniform Code of Military Justice. Congress can punish someone who fails to comply with the rules created to regulate the army, navy, militia, etc.
The third category deals with Congress’s authority over certain powers as the sovereign within the Law of Nations:
- “To establish an uniform Rule of Naturalization”
- To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And
- The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
- To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
- Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
- The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
These powers discuss the sovereignty of the United States Federal Government. Congress would thus have the power to criminalize those who break the laws of naturalization (wink wink Arizona), make all criminal laws in the District of Columbia and other federal properties (not states). In perhaps the clearest delegation of powers, Congress can make laws punishing piracies and felonies on the high seas that violate the law of nations.
The fourth category is interesting. These are limitations that the Federal Constitution imposes on the states. Theoretically, the Federal Government could criminalize these activities, and punish the states for their violation, though I’m not quite sure how that would work:
- No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
- No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
- No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
I suppose judicial review and an Article III smack on the wrist is the only way to punish states for violating these principles.
These are the four categories of Federal Authority under which the Congress in 1787 had the power to make federal crimes. At some point, Congress started to pass laws not in these 4 categories. This is the question I seek to answer in my work-in-progress titled Original Crime.
Comstock and Original Crime
May 17th
Interesting passage from United States v. Comstock with respect to my ongoing series of posts on original crime. I’m trying to figure out when the Feds started to criminalize activities that had no actual bearing on acts crossing state lines, or affecting federal interests.
Thus, the Constitution, which nowhere speaks explicitlyabout the creation of federal crimes beyond those relatedto “counterfeiting,” “treason,” or “Piracies and Feloniescommitted on the high Seas” or “against the Law of Na-tions,” Art. I, §8, cls. 6, 10; Art. III, §3, nonetheless grantsCongress broad authority to create such crimes. See McCulloch, 4 Wheat., at 416 (“All admit that the govern-ment may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of Congress”); see also United States v. Fox, 95 U. S. 670, 672 (1878). And Congress routinely exercises its authority toenact criminal laws in furtherance of, for example, its enumerated powers to regulate interstate and foreigncommerce, to enforce civil rights, to spend funds for the general welfare, to establish federal courts, to establish post offices, to regulate bankruptcy, to regulate naturali-zation, and so forth. Art. I, §8, cls. 1, 3, 4, 7, 9; Amdts. 13– 15. See, e.g., Lottery Case, supra (upholding criminalstatute enacted in furtherance of the Commerce Clause); Ex parte Yarbrough, 110 U. S. 651 (1884) (upholding Congress’ authority to enact Rev. Stat. §5508, currently 18 U. S. C. §241 (criminalizing civil-rights violations) and Rev. Stat. §5520, currently 42 U. S. C. §1973j (criminaliz-ing voting-rights violations) in furtherance of the Four-teenth and Fifteenth Amendments); Sabri, supra, (uphold-ing criminal statute enacted in furtherance of the Spending Clause); Jinks, supra, at 462, n. 2 (citing McCulloch, supra, at 417) (describing perjury and witness tampering as federal crimes enacted in furtherance of the power to constitute federal tribunals); see also 18 U. S. C.§1691 et seq. (postal crimes); §151 et seq. (bankruptcycrimes); 8 U. S. C. §§1324–1328 (immigration crimes).
McCulloch, 4 Wheat., at 416 (“All admit that the govern-ment may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of Congress”); see also United States v. Fox, 95 U. S. 670, 672 (1878). And Congress routinely exercises its authority toenact criminal laws in furtherance of, for example, its enumerated powers to regulate interstate and foreigncommerce, to enforce civil rights, to spend funds for the general welfare, to establish federal courts, to establish post offices, to regulate bankruptcy, to regulate naturali-zation, and so forth. Art. I, §8, cls. 1, 3, 4, 7, 9; Amdts. 13–15. See, e.g., Lottery Case, supra (upholding criminalstatute enacted in furtherance of the Commerce Clause); Ex parte Yarbrough, 110 U. S. 651 (1884) (upholding Congress’ authority to enact Rev. Stat. §5508, currently 18U. S. C. §241 (criminalizing civil-rights violations) and Rev. Stat. §5520, currently 42 U. S. C. §1973j (criminaliz-ing voting-rights violations) in furtherance of the Four-teenth and Fifteenth Amendments); Sabri, supra, (uphold-ing criminal statute enacted in furtherance of the Spending Clause); Jinks, supra, at 462, n. 2 (citing McCulloch, supra, at 417) (describing perjury and witness tampering as federal crimes enacted in furtherance of the power to constitute federal tribunals); see also 18 U. S. C.§1691 et seq. (postal crimes); §151 et seq. (bankruptcycrimes); 8 U. S. C. §§1324–1328 (immigration crimes).
In Alito’s concurring opinion, he also remarks on this point.
In other words, most federal criminal statutes rest upon a congres-sional judgment that, in order to execute one or more of the powers conferred on Congress, it is necessary andproper to criminalize certain conduct, and in order to do that it is obviously necessary and proper to provide for theoperation of a federal criminal justice system and a federalprison system.All of this has been recognized since the beginning of our country. The First Congress enacted federal criminal laws,1 created federal law enforcement and prosecutorial positions,2 established a federal court system,3 provided for the imprisonment of persons convicted of federal crimes,4 and gave United States marshals the responsibil-ity of securing federal prisoners.5
LiveBlogging a Law Review Article- Original Crime Update
Dec 30th
In keeping with my ongoing attempt to LiveBlog my articles, I just wanted to give you an update on my work on Original Crime. See my previous posts here for background.
In short, I’m trying to figure out when the Feds started to criminalize activities that had no actual bearing on acts crossing state lines, or affecting federal interests.
My research has focused on June 25, 1948, ch. 645, 62 Stat. 683, which served as the codification of Title 18 of the U.S. Code which governs all criminal law. Thanks to Corey C. for helping me track this down. If you are interested, Lexis has it in PDF form.
Although the statute defines “interstate commerce” as “The term “interstate commerce”, as used in this title, includes com- merce between one State, Territory, Possession, or the District of
Columbia and another State, Territory, Possession, or the District of Columbia” it also extends the act to crimes that are not interstate commerce.
In this act, all crimes that focus solely on wholly intrastate activities include the language that the act must be “Within the special maritime and territorial jurisdiction of the United States.”
Crimes that actually deal with acts crossing state lines (the Mann Act for example), reference interstate commerce, and do not include this provision. Crimes that do not cross state lines, do not reference interstate commerce, but do include this provision.
The Phrase “Special maritime and territorial jurisdiction of the United States” is defined in 18 U.S.C. 7.
But this definition doesn’t fully explain the statute. It explains interstate crimes (such as kidnapping) and crimes in federal areas (international waters or D.C.). But what about a manslaughter committed solely in one state? And further, crimes that cross state lines (such as kidnapping) do not make reference to the special maritime and territorial jurisdiction.
I have an inkling that “maritime and territorial jurisdiction” refers to interstate commerce, in some backhanded way. But I’m not sure yet. There are lots of cases interpreting this, and I am trying to dig up the legislative history from 1948 to get some idea what’s going on. But this may be very useful.
When did Congress create this statutory sleight of hand? That is the answer to original crime.
Stay tuned.
Original Crime: New Article Defining Felony in the Early American Republic
Dec 8th
I have blogged a bit about what I have termed “Original Crime.” What were federal crimes in the early days of our Republic. As I phrased it here:
When did congress starting criminalizing acts that were wholly in intrastate (think McCullough, not Wickard) that had nothing to do with any discernible federal interest? If a state line was crossed, or used an instrumentality of commerce (roads, rivers, etc), or it dealt with something arising from the Federal Government, I’m not interested.
Interesting new article on SSRN, titled Defining Felony in the Early American Republic (H/T Sentencing Blog) may shed some light.
At common law a felony was a crime that led to forfeiture of the convict’s property. In contemporary American law, a felony is usually defined as a crime that is punished by death, or imprisonment in a specially designated place (prison or penitentiary) or for a designated period of time (more than one year). The attached article examines how that change came about, and fixes the time and place of the re-definition: New York in 1828, during a revision of that state’s statutes. The choice made by the revisors, a compromise between radical reform and adherence to the common law tradition, is placed in the context of two early 19th century reform movements: Codification of the common law, and the founding of the penitentiaries.
How felony is defined – creating more or fewer felonies – gains greater importance in light of the current concern over the collateral consequences of a felony conviction. Looking at how the line between felonies and lesser crimes was originally drawn can offer insight as to where it should be drawn today.
While this article mostly focuses on state criminal law, I am curious if it touches on the development of federal criminal law in our Young Republic.
Original Crime: Another Reply to Professor Kerr, and When did Congress Criminalize Intrastate Activities?
Nov 23rd
Last week, I blogged about federal crimes, and queried what exactly was a federal crime at the time of the founding (See Thread Here). In short, most federal crimes today are premised on the Commerce Clause. But what about crimes in our early Republic?
Professor Orin Kerr helpfully suggested I look at 1 Stat. 112, enacted April 30, 1790 and Chief Justice Marshall’s opinion United States v. Wiltberger (1820).
But these statues and case law dealt solely with matters clearly in the province of the federal government, and not traditional common law crimes.
Troll_DC2, a frequent commenter, asked:
I do not know the answer to your question, but it might be interesting to see a list of federal crimes from, say, the 1820s or so to see whether the statutory law had moved beyond the bare minimums reflecting a strict reading of the Constitution. If not, how about the 1870s or some other pre-New Deal period? It would be interesting to see when the expansion process began, what caused it to happen, and whether anyone complained about its questionable constitutionality. At some point, I would think, the Supreme Court would have necessarily had to issue some sort of ruling on the issue. Perhaps a criminal-law professor who reads this blog could be useful here.
In reply to Troll, Orin Kerr recommended two pre-New Deal Commerce Clause cases:
1) Hoke v. United States (1913), which upheld the White Slave Traffic Act of 1910: http://supreme.justia.com/us/227/308/case.html
2) Westfall v. United States, 274 U.S. 256, 259 (1927), which upheld a 1917 federal criminal law punishing fraud on a state bank that had joined the federal reserve system, even if the fraud had nothing to do with federal funds. http://supreme.justia.com/us/274/256/case.htmlI recommend reading two pre-New Deal Commerce Clause cases:
But, do these cases really answer my question?
With respect to Hoke, it still dealt with white slaves crossing state lines. I don’t know if moving people is commerce, but at least its intrastate. Westfall was issued in 1927. Although this is Pre-New Deal, the Court had already advanced its commerce clause jurisprudence significantly. Furthermore, it still had something to do with the federal reserve, a federal entity.
So, here is my final question. And I will find an answer: When did congress starting criminalizing acts that were wholly in intrastate (think McCullough, not Wickard) that had nothing to do with any discernible federal interest? If a state line was crossed, or used an instrumentality of commerce (roads, rivers, etc), or it dealt with something arising from the Federal Government, I’m not interested.
The time period I need to look at is the 19th Century. My Co-Author, Corey Carpenter, found two interesting cases.
More after the jump.
Original Crimes: What were Federal Crimes in 1789, and Reply to Professor Kerr
Nov 20th
I blogged a bit yesterday about what exactly was considered a federal crime in 1789 (see here and here). I argued that beyond certain crimes according to enumerated powers (securities, currency, etc), there could not be any general federal crimes.
I was pleased to see one of my favorite bloggers, and all-around nice guy, Orin Kerr, visited my comment thread. Orin wrote:
The first set of federal crimes (that I know of) that Congress passed was 1 Stat. 112, enacted April 30, 1790. You should read Chief Justice Marshall’s opinion United States v. Wiltberger (1820) for an example of one of these laws: http://supreme.justia.com/us/18/76/case.html I don’t think it occurred to anyone at the time that such laws exceeded Congress’s commerce clause power.
Corey Carpenter, a contributor to Josh Blogs, replied:
I did a quick reading of the link you posted, and it seems that the 1 Stat. 112 particularly concerns crimes committed in places where only the federal government has jurisdiction, i.e. the high seas and federal land as opposed to a general policing power (and treason)
I just skimmed through Wiltberger, and it deals with manslaughter on the high seas, a federal offense.
All of the provisions of 1 Stat. 112 (see Library of Congress, and enter page 112) deal with matters clearly in the province of the federal government, and not traditional common law crimes.
The Federalism blog describes the crimes as such:
Sections 1 & 2 punish treason against the United States. Id. at 112. Sections 3 & 7 do not punish the state crimes of murder or manslauther. Rather, it only criminalizes murders committed in “any place *** under the sole and exclusive jurisdiction of the United States, “ id. at 113, and Section 5 punishes the theft from the federal government the body of an executed criminal. Id. Section 6 imposes an affirmative duty on a witness to certain listed crimes against the United States to relay his knowledge to the police. Id. Section 7 covers arson, but again, only against a building “under the sole and exclusive jurisdiction of the United States.” Id. Section 9-13 define and punish crimes on the high seas and rivers. Id. at 114-115. Section 14 criminalizes counterfeiting. Id. at 115. Section 15 punishes acts affecting an official paper of a federal court. Id. at 115-116. Sections 16 & 17 punish theft-related acts occurring on any place under the “sole and exclusive jurisdiction of the United States.” Id. at 116. Sections 18-20 cover perjury committed in federal court. Id. at 116-117. Section 21 covers bribes against federal officials. Id. at 117. Section 22 criminalizes resisting arrest, where a federal official is the arresting officer. Id. Finally, Section 28 punishes violence against persons under the protection of the United States. Id. at 118.
So perhaps I should refine my initial inquiry. When did the Federal Government began criminalizing matters that were historically left to state prosecutions, namely the common law crimes, that had nothing to do with federal jurisdiction or federal property? And if this change predated the New Deal and the transformation of the commerce clause, on what enumerated power did the federal Government base this authority?
Perhaps Professor Kerr will open a thread at Volokh? 
Or maybe I’ll just buy him a beer.
But if there were no federal crimes, why would we need the 4th, 5th, and 6th amendments?
Nov 19th
I previously blogged about what would be a federal crime in 1787. I conclude that for the most part, there could not be any.
Corey C, a bright eyed, blue haired 1L at George Mason law, posed a fantastic question.
If there were no federal crimes, why would the Constitution have needed the 4th, 5th, and 6th criminal procedure amendments?
If the only crimes were state crimes, and there were no federal crimes, how would the federal government have been bound by these amendments?
Corey suggests that this perhaps counsels in favor of incorporation. Perhaps, Barron v. Baltimore was wrong?
Just some more food for thought, but it gets my originalist juices flowing.
What was a federal crime in 1787? I agree with Brutus. There weren't any.
Nov 19th
I am helping Judge Gibson prepare the syllabus for the Federal Court Practice class at the Penn State Dickinson School of Law this Spring. For the first class, the students will be reading Article III (as all law students should).
Re-reading Article III reminded me of a question I asked my Federal Courts professors, to which I did not receive a satisfactory answer: What was a crime under the authority of the Federal Government in 1787?
Article III, Section 2 Provides:
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
But what were these crimes? The Federal Government has no general police power.
Brutus XIV (28 February 1788) notes:
“There is no criminal matter, to which the judicial power of the United States will extend; but such as are included under some one of the cases specified in this section.”
I tend to agree with Brutus’s reading.
Reading the original text of the Constitution, the only federal crimes that jump to mind are counterfeiting currency and securities, and perhaps treason. But what else?
Today, most federal crimes are based in the Commerce Clause. But how were federal crimes defined before the New Deal Revolution? This may be fodder for a future law review article.
For those curious, in addition to Article III, tentatively, the students may also studying Brutus XI-XII, XIV-XV and The Federalist 78, 79, 80, 81, 82, 83, followed by Marbury v. Madison.
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