Let’s set the record straight: nowhere in the Constitution is the federal government given any authority over ordinary crimes. Constitutionally and historically, crime fighting was left to state and local governments exclusively. Every state and municipality is unique and requires a specialized sort of crime management.
A small town with five-hundred people in the middle of Wisconsin is going to need something quite different than Chicago. A universal militarized federal police force dispatched to deal with the small town in the same way they deal with Chicago is a recipe for disaster.
Regardless, the fact that the federal government is not Constitutionally empowered to deal with almost all forms of crime is all that really matters.
What the Constitution Says
Have you ever stopped to think about what a “federal” law is? Really. Can an average, everyday citizen violate a federal law?
Most of you would likely say, “Of course.”
And in today’s America, you’d be right. But take a moment to consider what Congress can make laws about. Go, read Article 1 Section 8 again and think about federal law. Federal law was created to bring order to the otherwise chaotic existence of the states under the Articles of Confederation.
Most federal law covers broad topics like taxation, commerce across states and with other nations (something you wouldn’t find one each individual state handling) patents and the like.
This means that the federal government is only Constitutionally equipped to punish citizens who somehow violate one of those laws.
When it comes to crimes, Congress is tasked with the following crime fighting duties:
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions
Ok, so let’s logically step through this. Since the U.S. dollar is federal currency, it is a federal crime to counterfeit that money. Therefore, a citizen who does so must face federal charges in a federal court. The same goes for any incident involving the postal service and any felony on the high seas or internationally. (It’s a bit difficult to punish a crime committed on the water if the states can’t figure out under which state’s authority the crime was committed.)
Further, should a dramatic insurrection occur, Congress can call upon the local state militias to repel it.
So, the federal government is both authorized and equipped to handle these issues as a crime.
Read the rest of the Constitution. Aside from touching briefly on treason, nowhere in the Constitution is any federal power given to deal with any other crime. Crime, the laws created to prevent crime, and its punishment, are left to the individual states to handle.
Hamilton says: ‘‘There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light—I mean the ordinary administration of criminal and civil justice.’’
It’s really as simple as that.
According to Dr. Kopel, a Constitutional scholar and author of almost 20 books, “The policy implications of federalizing crime should not even be a subject for discussion since the Constitution does not authorize Congress to involve itself in crime fighting. The Constitution specifically authorizes only a few categories of criminal laws, all of which involve uniquely federal concerns. The first is based on the congressional power’ To provide for the Punishment of counterfeiting the Securities and current Coin of the United States. ‘The second involves the power‘ To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.’ Although currency, the high seas, and treason are clearly areas of federal concern, it is notable that the authors of the Constitution felt it was necessary to specifically authorize federal jurisdiction over them. Since Congress is given constitutional authority over certain other specific subjects (such as bankruptcies and post offices),it is reasonable for Congress to enact criminal legislation related to those subjects (such as bankruptcy fraud or attacks on postal employees).”
What the New Laws Say
In recent years however, Congress has taken it upon themselves to “eradicate crime” take on “the drug war” and the like. Congress has passed laws like the Juvenile Crime Control Act, the Church Arson Prevention Act, and the Sex Crimes Against Children Prevention Act.
Dr. Kopel says this: “Every few months a heinous crime committed against a racial minority, or against a gay man or lesbian, spawns demands for a federal ‘hate crime’ law. Those calls ignore the fact that homicide and other violent crimes are already illegal under state law, and are prosecuted vigorously. The energy spent on obsessing about the symbolism of enacting a redundant federal law would be better spent on improving state criminal justice systems, to the benefit of all victims of violent crimes.”
Basically, when the federal government meanders into the realm of criminal law, they have meandered into a realm the Constitution has given them little to no jurisdiction.
Is this blowing your mind like it’s blowing mine?
I know the Constitution, but I’ve never really taken a hard look in to federal criminal law. I’ve never really digested that the crime fighting laws the federal government passes are not Constitutional.
The result of federal crime fighting laws? Federal crime fighting enforcement.
When Congress passes a law, they must create, fund and equip a federal agency to execute the law they just created. That means that, when they pass a crime fighting law, they must create a federal police force to uphold and enforce that law.
And this is where the federal “police” force that now exists comes from.
“According to the Bureau of Justice Statistics, in 2008 the largest employers of federally employed officers were U.S. Customs and Border Protection, Federal Bureau of Prisons, the FBI, and U.S. Immigration and Customs Enforcement, each with over 15,000 full-time law enforcement. Federal officers’ duties include police response and patrol, criminal investigation and enforcement, inspections, security and protection, court operations, and corrections.” (discoverpolicing.com)
The Demand for Federal Crime Laws and a Federal Police Force
One of the primary ways the Court justifies this overreach of power is by stretching and re-interpreting the commerce clause. “Unfortunately, the federal courts have refused to stop such blatant injustices and have ruled that as long as there is one legal element in the federal offense that is not part of the state offense (for example, that the federal crime somehow‘ ‘affects’ interstate commerce), the second prosecution will be allowed. That legal standard eviscerates the Fifth Amendment’s double jeopardy clause.”
They are able to do so because it’s the citizenry who is demanding from the federal government unconstitutional things. We demand that the federal government fix crime, fix violence, fix drug use and the like, all the while feeding them exactly what they want: power. Nothing aids government’s potential for abuse like the “necessary evil” of a federal, militarized police force.
Why is it that we expect the federal government to solve local crime? When did we turn from holding our local and state governments accountable for these issues? We’ve completely let them off the hook because we now fully expect the federal government to fix these problems.
The Consequences of Federal Crime Laws and a Federal Police Force
There are some substantial consequences from this unconstitutional behavior.
Here’s the thing. The founders intended for the state and local governments to provide the police force and crime prevention in the country. Giving such a power to the federal government was considered far too dangerous. Giving the federal government the power to police the country means giving the federal government the power to tyrannize over the country.
What happens then when the federal government takes the power to police the country into their own hands? They end up making redundant laws and jeopardizing liberty by creating double jeopardy situations for American citizens.
“In some cases, persons who served time in state prison on drug charges have been retried under federal law and sent to federal prison for a lengthy mandatory sentence. In other cases, persons acquitted in state courts have been re-prosecuted in federal court.” (Kopel)
In other words, the Fifth Amendment is frequently and egregiously violated because of this federal overreach. “Unfortunately, the federal courts have refused to stop such blatant injustices and have ruled that as long as there is one legal element in the federal offense that is not part of the state offense (for example, that the federal crime somehow‘‘affects’’ interstate commerce), the second prosecution will be allowed. That legal standard eviscerates the Fifth Amendment’s double jeopardy clause” (Kopel)
The militarization of the police force. Police officers used to be called “peace officers.”
Historically, even states had a rather limited police force. States would have a local Sheriff or Mayor. Police officers were more concerned with peace keeping than law enforcing.
The federal government has systematically worked to militarize federal, state and local law enforcement over the past 50 years. Perhaps the complaints about the power and abuse of the police today (though admittedly still a minority of officers) is based in the very real fact that the federal government has taken unconstitutional steps to create a powerful police force in all levels of government.
The issue is not the officers, the issue is the violation of the U.S. Constitution creating a massive federal (and now state and local) police force that now has the potential to be used for oppression.
Local police departments spend local tax dollars and are directly accountable to local voters,
The federal government is not accountable to the local voters like our local politicians are.
“In contrast, federal law enforcement spends from a vast pool of ‘other people’s money’ and is subject, at most, to very indirect democratic control. Thus, it should come as no surprise that federal crime dollars are spent on programs like Drug Abuse Resistance Education and the McGruff Crime Dog, which have been abject failures.” (Kopel)
There is no one-size fits all in the United States. U.S. states know what crime laws and what police forces are needed for each state. Federal laws don’t always work as intended because of the unique circumstances in each state.
The moral of the story is this: violating the Constitution and allowing arbitrary power has very real, sometimes unintended, consequences.
A militarized federal police force is very dangerous to liberty and yet it is a given in today’s America. If there’s a crime problem, increased shootings, drug issues and the like, the citizenry now calls on the the federal government to remedy the problem. Doing so cripples and undermines the effectiveness of the state and local governments who are already working to remedy these problems. It reallocates funding and downplays state and local efforts.
So, is a federal police force Constitutional?
The Liberty Belle