This month we are sharing a selection of paired pieces from The Federalist Society's Liberty Month in July 2015. We hope you enjoy reading them. Click here to visit the paired piece for this entry.

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Police power is necessarily political, but should not be partisan.  “Police” and “politics” derive from the Greek word “polis,” a body of citizens constituting a city-state.  The power of police shapes every body politic. States, for example, that use their police powers to criminalize marijuana-use or gambling differ politically from those that do not. 

The Constitution deliberately withholds a general police power from the federal government.   Ours is not a unitary state like France, where all sovereign powers are lodged in the national government. A general police power in the national government contradicts a federal form of government.

General police powers allowed southern states to impose slavery until the Civil War. To eliminate slavery and related abuses, the post-Civil-War Amendments and attendant statutes substantially and justly curtailed state police powers. More broadly, the Supreme Court has constrained state police powers through the 14th Amendment’s application of the Bill of Rights to the states, which effectively has codified much of criminal procedure.

Meanwhile, the federal government has been illicitly gathering police powers. The attendant abuses are less visible and more debatable. The recent media uproar over government surveillance triggered a rare debate about federal police powers.   Still, the major media report on symptoms, e.g., privacy violations, rather than causes.

Abuses of federal power are largely rooted in the number and definition of federal crimes. For government to search, seize, surveil, arrest, or indict a person, law enforcement generally must demonstrate “probable cause” concerning violation of a particular criminal statute.  With over 4500 federal crimes--about half created since 1970—federal agents can find probable cause more easily than state agents.

Defining federal crimes is an unsexy exercise. It requires careful drafting so as not to endanger liberty. Tragically, many federal crimes are recklessly written. Too little attention has been paid to these important questions: 1. Does Congress have constitutional power to enact the particular crime? 2. Is a statute labelled criminal, really a crime? 3. Can the Justice Department, assisted by federal courts, easily expand the statutory language and effectively create additional crimes?

1. Most federal crimes rest on Congress’s power “to regulate commerce among the states.” Congress, however, has used this power merely as a “hook,” i.e., a pretense. The Supreme Court’s admonition in US v. Lopez that the Justice Department and Congress not “convert … the Commerce Clause to a general police power” has fallen on deaf ears.

Lopez rejected the federal “school-zone-gun-prohibition statute” as not related to commerce. At some point, the gun was the subject of a commercial sale. The statute, however, regulated possession -- not the sale -- of guns.

We need federal enforcement of crimes actually involving interstate commerce. Instead of duplicating state efforts, the Justice Department should redirect resources to crimes beyond the authority and capability of the states, e.g., Internet identity theft. Victims of identity theft, however, are told by federal agencies to go to their local police – though the criminals likely live in another state or country.   

2. DNA evidence has demonstrated the innocence of many persons convicted in state courts.  Tragically, states have punished innocent persons for murders, rapes, and robberies committed by others.

Meanwhile, people can be indicted for federal “crimes” that never actually occurred. How is that possible? Because federal prosecutors often target a particular person and then look for some crime that might possibly fit. As is frequently observed, federal prosecutors can “indict a ham sandwich.”  

Federal crimes are not obvious ones like murder, rape, robbery. Whether, for example, a defendant’s actions violated federal fraud or RICO statutes will not be known until a jury decides. Innocent persons, fearing draconian sentences, have good reason to plead guilty in exchange for lower sentences.

Many federal “crimes” lack the basic requirements for a crime: clearly defining what the law prohibits and requiring that the defendant actually intended the criminal act.

3. The Rule of Law requires criminal statutes to be defined clearly enough for ordinary citizens to understand what they prohibit. Reading federal criminal statutes, however, is like reading the federal tax code. Ordinary citizens cannot understand the law without a lawyer.  

Routinely, Members of Congress pass criminal statutes without reading them. They are told that a particular statute will prohibit action X. The language of the statute, however, is so broad and loose-- often written by Justice Department lawyers -- that it can be interpreted to cover actions A through Z.  Not surprisingly, thereafter the Justice Department applies statutes to conduct never mentioned in Congress.

Fortunately, a bi-partisan coalition has emerged in Congress to cut back on abuses of federal criminal law. Like the founders, they now realize that a general police power in the federal government threatens everyone’s liberty.