Criminal Justice in America: Constitutionalization Without Foundation

Abstract

Criminal justice in America lacks foundation in three senses: historical, political, and substantive. The U.S. Constitution will continue to fail to place meaningful limits on American penal power without a radical reconceptualization of the challenge of state punishment in a modern democracy, i.e., ultimately as a fundamental question of political legitimacy. This paper explores the prospects for a constitutionalization of American criminal law, with some comparative glances at developments in other countries, notably Canada and Germany.

Keywords: criminal law, constitutional law, comparative law, legal theory

JEL Classification: K10, K14, K30