3.3. Sources of Criminal Law: Federal and State Constitutions
3.3. Sources of Criminal Law: Federal and State Constitutions
Lore Rutz-Burri
Where do you look to see if something you want to do violates some criminal law? The answer is “in many places.” Criminal law originates from many sources. Some criminal law is the result of constitutional conventions, so you would need to review federal and state constitutions. Other criminal laws result from the legislative or initiative process, so you will need to review state statutes or congressional acts. Other criminal law results from the work of administrative agencies, so you need to review state and federal administrative rules. Other criminal law, called case law, originates from appellate court opinions written by judges. These court opinions, called “decisions”, are published by both official and unofficial reporters, but thanks to the Internet, they are now easy to find if you know the parties’ names. Much of our criminal law descended from the English common law. This law developed over time, through custom and tradition, and it is a bit more difficult to locate, but it is mentioned in treatises and legal “hornbooks” (like legal encyclopedias) and is often referred to in case decisions.
The Federal Constitution—The Constitution of the United States
Although the United States Constitution recognizes only three crimes (counterfeiting, piracy, and treason), it nevertheless plays a significant role in the American criminal justice system. Most importantly, the Constitution establishes limits on certain types of legislation or substantive law, and it provides significant procedural constraints on the government when it seeks to prosecute individuals for crimes. The Constitution also establishes federalism (the relationship between the federal government and state governments), requires the separation of powers between the three branches of government (the judicial branch, the legislative branch, and the executive branch), and limits Congress’s authority to pass laws not directly related to either its enumerated powers (listed in the Constitution) or implied powers (inferred because they intertwined with the enumerated powers).
Constitutional Limitations on Criminal Law and Procedure
The drafters of the federal Constitution were so concerned about two historic cases of abuse by the English Parliament (ex post facto laws and bills of attainder) that they prohibited Congress from passing these types of laws in the original body of the Constitution. (See, Article I Section 9 of the Constitution.) Ex post facto laws are laws that are retroactively applied, punishments retroactively increased, or changes in the amount and types of evidence that are required of the government to successfully prosecute an individual. Bills of attainders are laws that are directed at a named individual or group of individuals and have the effect of declaring them guilty without a trial.
Most of the other limitations are found within the Bill of Rights, the first ten amendments to the