Constitutional Innocence

Posted: 15 Feb 1999

See all articles by Alan C. Michaels

Alan C. Michaels

Ohio State University (OSU) - Michael E. Moritz College of Law


What limits, if any, does the Constitution establish on the use of strict liability in the criminal law? Academic commentators have argued for generations that, properly understood, the Constitution places severe restrictions on strict liability and have simultaneously condemned the Supreme Court's strict liability jurisprudence for failing to recognize any significant constitutional limitation. This article demonstrates that the Court has actually followed a middle course -- an unarticulated principle that places important limits on the use of strict liability in the criminal law, but still leaves substantial scope for its operation. Under this principle, called "constitutional innocence" in the article, a legislature may employ strict liability regarding an element of a crime only if it has the power to criminalize the intentional elements of the crime with the strict liability element excluded.

After defending constitutional innocence on descriptive grounds, by reference to the "traditional cases" as well as First Amendment and abortion decisions that have often been overlooked in the strict liability debate, the article describes the virtues of the principle and its firm constitutional grounding. Finally, the article develops the principle further by canvassing current uses of strict liability in both state and federal crimes and exploring the impact explicit recognition of the principle of constitutional innocence would have in cases arising under such statutes.

Suggested Citation

Michaels, Alan C., Constitutional Innocence. Available at SSRN:

Alan C. Michaels (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

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Columbus, OH 43210
United States
614-688-3451 (Phone)
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