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