One popular topic among conservatives – and a frequent bone of contention when debating liberals on the subject – is the issue of states’ rights vs the federal government. We tend to hone in on specific cases as they crop up in a sort of whack-a-mole fashion, but Rodrigo Sermeño has an excellent essay this weekend at PJ Media on the larger, overarching reality of this problem. There are simply too many federal laws on the books, with an average of more than fifty new ones being added each year, and most of them usurp legal issues already being handled by the states. This, as the author notes, leads to a variety of problems which are already metastasizing and coming back to bite us.
Criminal law experts warned a House panel late last week about the dangers of over-federalization in the nation’s criminal law system.
The House Judiciary Committee’s Over-Criminalization Task Force held its second hearing of 2014, where members of Congress discussed the federal criminal code’s astonishing rate of growth.
Today, there are more than 4,500 crimes in federal statutes, according to a study by Louisiana State University law professor John S. Baker…
“Today there’s a continuing crisis in the overlap of federal and state law, particularly in the areas previously covered only by state law,” James Strazzella, professor of law at Temple University, told the panel. “With the growth of federal law demonstratively covering more and more traditionally state-crime areas, a mounting and duplicating patchwork of crimes has grown up in the last few decades.”
The author notes that this is a non-partisan issue which draws criticism from both sides of the aisle for multiple reasons. This federal overreach undermines the competitive and unique nature of state sovereignty, defies the idea of a federal government with well defined and limited powers, and removes the ability of individual states to set sentencing which comports with the views of their citizens.
This sort of legislative sprawl in Washington also raises complicated issues involving a legal principle known as mens rea, which essentially means that citizens wind up facing felony charges involving laws which they didn’t even know existed and certainly held no intent to violate. This particular wrinkle was pointed out last year in a piece at the Wall Street Journal telling the story of one family who ran afoul of Uncle Sam in the most inexplicable of ways.
Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby.
In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.
There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.
As if this weren’t enough, expansion of the boundaries of federal law can lead to what should, by any rationale analysis, be examples of double jeopardy. One case in point which currently holds the potential for this is the status of George Zimmerman. Having been found not guilty in Florida on murder charges, there is still discussion of taking him to federal court for the same crime. And that, as was pointed out at Forbes by numerous legal experts, is not a good thing.
Thus Florida can’t charge Zimmerman again, but, presumably, if there is an appropriate statute, the federal government could charge him, since it never charged Zimmerman to begin with.
But does this make sense?
To many legal scholars this precedent is wrongly decided and it’s a matter of current legal controversy. I asked Georgetown Law Professor Randy Barnett for his perspective. Barnett was the architect of the Commerce Clause arguments against Obamacare and was once a former state-court criminal prosecutor in Chicago.
The original meaning of the double-jeopardy bar in the Fifth Amendment must be evaluated in context. At the Founding there was thought to be little, if any, overlap between federal and state laws governing individuals. In light of the modern expansion of federal power, ‘twice put in jeopardy of life or limb’ should be interpreted to mean what it says.
There is a place for federal laws, obviously, but it should center on areas where the states are unable to pursue crime, most commonly from a lack of either resources or jurisdiction. When kidnappers take a victim across state lines, or complicated fraud and fiscal mismanagement schemes involve banks and individuals across the country, there is a clear case for federal jurisdiction. But in the vast majority of instances of private misconduct, the states tend to agree on what is legal and what is not. (And to the great chagrin of some progressives, the list boils down to the Ten Commandments.) What varies is how – and to what extent – each state chooses to punish the offenders. And this is something which should rightly be left to the voters of each state depending on their preferences and needs. Reigning in Washington after they get hold of some power, however, usually proves to be an impossible task.