Federalization of Criminal Law

Since it first adopted a statute with criminal penalties under the alleged authority of the Commerce Clause in 1884, Congress has increasingly been asserting the power to legislate police powers, first on interstate shipments, later within state territory. Most such legislation has claimed authority under ever-broader constructions of the Commerce Clause and the Necessary and Proper Clause, which have been extended to include almost anything. This criminal legislation would have been deemed unconstitutional in the Founding Era.

The original meaning of ‘‘commerce among the states’’ seems to have been limited to tangible commodities the title and possession of which are transferred from a party outside a state to a party within that state. It did not include services, information, energy, or primary production such as mining, farming, hunting, or fishing. Nor did it include manufacturing, transport, possession, use, or disposal, or the activities of the transacting parties, or anything that might have a ‘‘substantial effect’’ on such transactions.

Furthermore, the original meaning of the power to ‘‘regulate’’ did not include the power to prohibit, or to impose criminal penalties, but only civil penalties, such as fines or confiscation.

The original Constitution delegated authority to the central government to punish as crimes, committed on state territory, only a limited number of subjects: (1) treason (Art. III Sec. 3 Cl. 2); (2) counterfeiting (Art. I Sec. 8 Cl. 6); (3) piracy or felonies on the high seas; (4) offenses against the ‘‘laws of nations’’ (Art. I Sec. 8 Cl. 10); or (5) violations of discipline by military or militia personnel (Art. I Sec. 8 Cl. 14). This was confirmed in the constitutional ratifying conventions, and again in the Kentucky Resolutions of 1798, authored by Thomas Jefferson, although he omitted the last one in that document.

There have been no subsequent amendments to expand the criminal powers of Congress, other than the Thirteenth (slavery), Fourteenth (violations of rights by state agents), Fifteenth (denial of vote to former slaves), Eighteenth (alcohol prohibition, repealed by Twenty-first), Nineteenth (denial of vote to women), and Twenty-sixth Amendments (denial of vote to those aged 18 or older).

The process has been driven by perceived problems that evoked public demand for solutions, combined with diminished public understanding, from generation to generation, of what is and is not constitutional, and declining public devotion to the strict enforcement of the Constitution.

U.S. criminal statutes that exceeded the bounds asserted by the Kentucky Resolutions of 1798 did occasionally get adopted between 1798 and 1884, but only in minor ways. They were seldom enforced and were not subjected to the test of appellate review until 1906.

The next significant piece of legislation was the Sherman Anti-TrustAct of July 2, 1890, which imposed criminal penalties on monopolistic combinations but was sustained by a 1908 precedent enforcing it not against industrialists but against a call for a boycott by a labor union.

The next significant precedent was in 1911, in which criminal penalties were sustained for violation of regulations by the Secretary of Agriculture, not for regulation of interstate commerce but of grazing rights on federal lands, even though exclusive jurisdiction over them had not been ceded to Congress by a state legislature under U.S. Const. Art. I Sec. 8 Cl. 17. This was also significant in that it breached the nondelegation doctrine that legislative powers could not be delegated to administrative agencies.

The Necessary and Proper Clause was extended by a key 1914 precedent that it may be necessary to regulate ‘‘purely’’ intrastate activities so that the regulation of interstate activities might be fully effectuated. When written, the commerce clause was only intended to authorize what might be required to make the effort to exercise a delegated power, not whatever might be convenient to attain an outcome for which the power might be exercised. This represented a major departure from the original understanding of what a delegated power is.

In 1917 the U.S. Supreme Court sustained a conviction under a 1910 statute forbidding transport of women across state lines for sexual purposes. This was the first exercise of a ‘‘police power’’ against immoral behavior, and it also introduced the notion that the U.S. government acquired criminal jurisdiction over offenses that involve crossing a state line.

In 1919, the Court sustained a conviction under a 1916 act, a precedent that Congress has criminal jurisdiction over fraud that influences or obstructs interstate commerce. In 1920, there was a precedent that extended ‘‘commerce’’ to include communications, including noncommercial communications, across state lines. In 1925 came a precedent that Congress can exercise a police power by regulating interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other states from the state of origin.

The key precedent came in 1942, when the conviction was sustained of a farmer for consuming his own grain, subject to price and production controls, as having a ‘‘substantial effect’’ on interstate commerce. Most federal criminal legislation since then cites this precedent for its authority, including federal criminal drug control statutes, a statute against murdering federal agents, gun control legislation, and more than 4000 other distinct penal provisions.

More federal criminal legislation gets introduced and adopted each session of Congress, with little effective opposition on constitutional grounds. Congress now sees no limit on its powers, other than a few rights expressly protected by the Constitution. From an understanding that ‘‘all powers not delegated are prohibited,’’ they have gone to a position that they have ‘‘all powers not expressly prohibited,’’ contrary to the Ninth and Tenth Amendments.

It should be noted, however, that none of the precedents or any legislation has actually sought to extend the definition of ‘‘commerce.’’ It is all based on ever-broader extensions of the necessary and proper clause, with only tenuous connections to ‘‘commerce’’ as such. From an original understanding of ‘‘necessary and proper’’ to include only the power to make a limited effort to whatever power might be convenient to obtain a desired result.

JON ROLAND

References and Further Reading

• Elliot, Jonathan. (1836). ‘‘The Debates in the Several Conventions on the Adoption of the Federal Constitution.’’ https://www.constitution.org/elliot.htm.
• Meese, Edwin III, chair. ‘‘The Federalization of Criminal Law.’’ Report of Task Force of the American Bar Association. https://www.nacdl.org/public.nsf/legislation/overcriminalization/$FILE/fedcrimlaw2.pdf.
• Meese, Edwin III and Rhett DeHart. ‘‘How Washington Subverts Your Local Sheriff.’’ Policy Review, January- February 1996, Number 75; https://www.policyreview.org/jan96/meese.html.
• Randolph, J. W., ed. ‘‘The Virginia Report.’’ Richmond: 1850. Includes writings of Thomas Jefferson and James Madison, the Kentucky Resolutions of 1798 and 1799, and the Virginia Resolution of 1798. https://www.constitution.org/rf/vr.htm.