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Federal Criminal Jurisdiction - Origins

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The federal government has no general authority to define and prosecute crime. The Constitution created a federal government with only limited delegated powers; federal authority was confined to matters, such as foreign relations, that are not subject to effective governance by individual states. Any power not expressly granted to the central government was reserved to the states and to the people. General police powers and the bulk of criminal jurisdiction were not granted to the federal government, and accordingly were uniformly recognized to be reserved to the states.

The Constitution explicitly authorizes the federal government to prosecute only a handful of crimes: treason, counterfeiting, crimes against the law of nations, and crimes committed on the high seas, such as piracy. Each of these offenses involves a subject, such as foreign relations, over which the federal government has exclusive authority. All other federal criminal jurisdiction rests on a less explicit but more flexible and expansive source of constitutional authority: the grant to Congress of power to pass legislation "necessary and proper" to the implementation of any enumerated federal power (Art. I, § 8). The first Congress clearly assumed that the necessary-and-proper clause authorized Congress to enact criminal sanctions to effectuate various enumerated federal powers. Indeed, the first general criminal legislation included a number of offenses clearly dependent upon the necessary-and-proper clause. For example, the Constitution empowers the federal government to raise and support an army, and the first Congress established criminal penalties for such conduct as larceny of federal military property.

Several early decisions of the U.S. Supreme Court confirmed Congress's discretionary authority to define federal crimes not enumerated in the Constitution. Although the federal government had only the authority delegated to it in the Constitution, the Court's expansive construction of the necessary-and-proper clause in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 416–417 (1819) established that Congress has broad discretion to employ criminal sanctions when it deems them helpful or appropriate to the exercise of any federal power.

Before the Civil War there were few federal crimes and little overlap between federal and state criminal jurisdiction. Only the states exercised general police powers. Congress authorized federal criminal sanctions where necessary to prevent interference with, or injury to, the federal government. The principal antebellum federal crimes were (1) acts threatening the existence of the central government, such as treason; (2) misconduct by federal officers, such as acceptance of a bribe; (3) interference with the operation of the federal courts, such as perjury; and (4) interference with other governmental programs, including obstruction of the mails, theft of government property, revenue fraud, and bribery or obstruction of government personnel. These were matters of paramount, if not exclusive, federal concern. Since the federal government's programs and activities were relatively few, the last category of cases was correspondingly narrow. Federal law did not reach crimes against private individuals, which were the exclusive concern of the states. The only major exception to this pattern came in geographic areas under exclusive federal maritime or territorial jurisdiction, where Congress exercised general police powers because no state had jurisdiction. Only in those areas where federal jurisdiction was exclusive, as in the District of Columbia, did Congress adopt criminal penalties for antisocial conduct—such as murder or robbery of private individuals—that posed no direct threat to the central government.

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