Constitutional Crimes

Abstract

Studies of criminal laws tend to focus on statutory, regulatory, and common law offenses. And discussions of constitutional law often revolve around abstract, concise statements that are either in, or that mirror the contents of, the federal Constitution. In the interest of exploring new territory in both fields, this Article introduces and analyzes a family of crimes that has gone unanalyzed until now: criminal laws that appear in the text of the US Constitution and state constitutions. As it turns out, there are a host of criminal laws contained in the federal and state constitutions, ranging from widespread crimes against treason, bribery, criminal contempt, and corrupt solicitation, to niche offenses including prohibitions on certain forms of net fishing, the theft of legislative bills, stem cell and cloning practices, and bingo-related crimes.

In this Article, I present the first survey and taxonomy of these constitutional crimes. Along the way, I uncover nuances that have previously gone unnoticed—such as an unexplored set of state constitutional treason provisions that are significantly broader than the US Constitution’s treatment of the crime. I address parallels and patterns between the states—highlighting common constitutional crimes and reasons for their inclusion in constitutions rather than the statute books. Beyond the survey and exploration, I conduct an initial, higher-level analysis of constitutional crimes, including their implications for research into constitutional drafting, constitutional interpretation, the democratic legitimacy of state and federal constitutions, and zombie constitutional provisions. Still, much remains to be said about constitutional crimes. To that end, the Article concludes with a research agenda that identifies additional aspects of constitutional crimes that are worth exploring.

Keywords: constitutional law, state constitutional law, criminal law, treason, bribery, constitutional interpretation, democracy,

JEL Classification: K19