Constitutionalizing the Federal Criminal Law Debate: Morrison, Jones, and the Aba

Abstract

This article considers the impact of recent Supreme Court cases on the reach and interpretation of federal criminal law, and the extent to which debates about that law should be more grounded in constitutional considerations. Special attention is paid to the problem of statutes with jurisdictional elements, using the Hobbs Act as an example.

The article begins with what Professors Abrams and Beale call the "great debate on the nature of the federal role." This debate is generally presented as a matter of how far Congress should go in developing our system of overlapping state and federal crimes. It was assumed, certainly before Lopez, that constraints on Congress were few. There is a wealth of scholarly analysis of Lopez and its impact on federal power. However, to some extent, the debate on federal criminal law remains cast as primarily one of policy.

The article examines the report of the American Bar Association's Task Force on the Federalization of Criminal Law. It considers both the Report's analysis of the present system and its recommendations to Congress. The analysis reflects a strongly federalistic approach. However, despite federalistic premises, there is relatively little discussion of possible constitutional limits on Congress. After Lopez, these considerations would bolster the Report's analysis and conclusions. The article notes in particular the strength of an individual rights critique of the dual systems of criminal law, and suggests that it fits comfortably within classical notions of federalism as advancing protection of rights.

The Report was written after Lopez but prior to the recent decisions in United States v. Morrison and Jones v. United States. The article discusses these cases in some depth. Morrison is presented as primarily a reaffirmation of Lopez. Of particular interest are the dissents of Justices Souter and Breyer; for example, the former criticized the current majority's approach as a doomed attempt to return to "the federalism of some earlier time." In light of the sharp Lopez-like disagreements in Morrison, the decision in Jones is somewhat surprising. The specific result was the narrow construction of a federal arson statute. What is striking is that constitutional concerns played a substantial role in this construction and that Justice Ginsburg - a Lopez dissenter - cited Lopez as the source of these concerns.

Jones involved a statute with a jurisdictional element. The article turns to the questions raised by such statutes, noting that the majority opinions in Lopez and Jones suggested a hospitable approach toward them. The general question is how to transpose limits on Congress' power to legislate over a class of activities to the context of individual instances of an activity. Serious theoretical problems are present. For example, should courts aggregate the effect of individual acts when a statute contains a jurisdictional element, thus suggesting a focus on the individual case? These problems are surfacing in litigation under the Hobbs Act. Ultimately, the Supreme Court will need to clarify the constitutional and other issues presented by statutes with jurisdictional elements.

JEL Classification: K10, K14