Could a state legalize murder?

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Generic20101L
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Could a state legalize murder?

Postby Generic20101L » Tue May 10, 2011 5:15 pm

Or is there a federal law that says murder has to be illegal?

Sorry if this is a stupid, obvious question, I'm not sure...

Transpher
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Re: Could a state legalize murder?

Postby Transpher » Tue May 10, 2011 5:19 pm

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Last edited by Transpher on Tue May 10, 2011 8:00 pm, edited 1 time in total.

amonynous_ivdinidual
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Re: Could a state legalize murder?

Postby amonynous_ivdinidual » Tue May 10, 2011 5:23 pm

transpher- that's not murder. murder is tripartite: unlawful homicide with malice aforethought. none of your examples are murder.

OP- it's interesting. this is the police power which is classic state power. but you might try to federally proscribe it based on the commerce clause (unlikely after Lopez). last ditch effort may be to try to read a right to life or a right to be free from murder as a penumbral right inhering in the 14th amendment.

it sounds like a stupid question, but it's actually a fun one.

Generic20101L
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Re: Could a state legalize murder?

Postby Generic20101L » Tue May 10, 2011 5:29 pm

amonynous_ivdinidual wrote:transpher- that's not murder. murder is tripartite: unlawful homicide with malice aforethought. none of your examples are murder.

OP- it's interesting. this is the police power which is classic state power. but you might try to federally proscribe it based on the commerce clause (unlikely after Lopez). last ditch effort may be to try to read a right to life or a right to be free from murder as a penumbral right inhering in the 14th amendment.

it sounds like a stupid question, but it's actually a fun one.


That's what I thought, that it would be a state's police power, but there is a federal law for murder. There is no way that they could regulate murder through interstate commerce, like you said.

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minnbills
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Re: Could a state legalize murder?

Postby minnbills » Tue May 10, 2011 6:00 pm

I would imagine the 8th, 9th, and 14th amendments would offer protection against this.

Scurredsitless1
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Re: Could a state legalize murder?

Postby Scurredsitless1 » Tue May 10, 2011 6:06 pm

minnbills wrote:I would imagine the 8th, 9th, and 14th amendments would offer protection against this.



Only against state actors though, right? I'm thinking this is within the police powers of the state.... (however, this question addresses a unique point outside of what I have learned in school)

jdhonest
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Re: Could a state legalize murder?

Postby jdhonest » Tue May 10, 2011 6:15 pm

Could a state legalize decriminalize murder?

flexityflex86
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Re: Could a state legalize murder?

Postby flexityflex86 » Tue May 10, 2011 6:16 pm

Generic20101L wrote:Or is there a federal law that says murder has to be illegal?

Sorry if this is a stupid, obvious question, I'm not sure...

it must be a pain to have you in a class.

i haven't started law school yet, but i'd imagine there's some common law thing about this.

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minnbills
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Re: Could a state legalize murder?

Postby minnbills » Tue May 10, 2011 6:25 pm

Scurredsitless1 wrote:
minnbills wrote:I would imagine the 8th, 9th, and 14th amendments would offer protection against this.



Only against state actors though, right? I'm thinking this is within the police powers of the state.... (however, this question addresses a unique point outside of what I have learned in school)


I would imagine any argument based on the 8th would be weak. The 14th presupposed "rights and immunities of citizens of the United States" that could be used to deny the federal Government from decriminalizing murder. There is no question that the 14th would deny a state government this, IMO.

The 9th and 10th could both be used to argue against a new law, decriminalizing murder, that has no basis in common law or in our legal tradition.

EDIT: I'm not in law school, beware.
Last edited by minnbills on Tue May 10, 2011 6:33 pm, edited 1 time in total.

toptwin
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Re: Could a state legalize murder?

Postby toptwin » Tue May 10, 2011 6:28 pm

flexityflex86 wrote:
Generic20101L wrote:Or is there a federal law that says murder has to be illegal?

Sorry if this is a stupid, obvious question, I'm not sure...

it must be a pain to have you in a class.

i haven't started law school yet, but i'd imagine there's some common law thing about this.


Must be a pain to have lazy assumptions in class as well. OP asked a question, either help the guy out or try not to post useless stuff.

CyLaw
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Re: Could a state legalize murder?

Postby CyLaw » Tue May 10, 2011 6:28 pm

flexityflex86 wrote:
Generic20101L wrote:Or is there a federal law that says murder has to be illegal?

Sorry if this is a stupid, obvious question, I'm not sure...

it must be a pain to have you in a class.

i haven't started law school yet, but i'd imagine there's some common law thing about this.


When law students are studying for finals, it is best that non law students stay out of conversations when they don't have anything to add. Come back to this post once you start your legal studies and you will see why.

To OP: I can't think of any reason why a state would not have the authority to decriminalize murder, at least on the practical level by making the evidentiary requirements insanely high, by expanding the number of excuses, or by making the punishment almost none. But this is one of those categories of items that would just never happen. The political branch is never going to pass a statute saying murder is okay always.

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pleasetryagain
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Re: Could a state legalize murder?

Postby pleasetryagain » Tue May 10, 2011 6:42 pm

Generic20101L wrote:
amonynous_ivdinidual wrote:transpher- that's not murder. murder is tripartite: unlawful homicide with malice aforethought. none of your examples are murder.

OP- it's interesting. this is the police power which is classic state power. but you might try to federally proscribe it based on the commerce clause (unlikely after Lopez). last ditch effort may be to try to read a right to life or a right to be free from murder as a penumbral right inhering in the 14th amendment.

it sounds like a stupid question, but it's actually a fun one.


That's what I thought, that it would be a state's police power, but there is a federal law for murder. There is no way that they could regulate murder through interstate commerce, like you said.


why do you think this? murder certainly affects interstate commerce and in the right court, on the right day, would easily be upheld. Especially if they add a "weak jurisdictional element" i.e. "murder that affecits interstate commerce" > killing someone affects interstate commerce.

CyLaw
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Re: Could a state legalize murder?

Postby CyLaw » Tue May 10, 2011 6:49 pm

Regarding the Federal murder law, 18 USC 1111, it only applies within the "special marinetime and territorial jurisdiction of the United States." It does not cover normal murders within state jurisdictions, thus I don't believe supremacy is an issue here.

dixiecupdrinking
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Re: Could a state legalize murder?

Postby dixiecupdrinking » Tue May 10, 2011 7:08 pm

I think that as a general rule, a federal requirement forcing states to affirmatively enact legislation seems to raise all sorts of federalism red flags, and might constitute commandeering, right? State action issues probably also would prevent decriminalization from being a constitutional issue. Merely permitting private citizens to kill each other shouldn't implicate the Constitution.

The federal government probably could rescind all kinds of funding to any state that tried this, though. South Dakota v. Dole, etc.

Also, some of the other posters' responses address the question of whether the federal government could pass its own blanket prohibition on murder in all state jurisdictions, which is different from your question, which is merely whether a state could abolish its own laws against murder.

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vamedic03
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Re: Could a state legalize murder?

Postby vamedic03 » Tue May 10, 2011 7:14 pm

Generic20101L wrote:Or is there a federal law that says murder has to be illegal?

Sorry if this is a stupid, obvious question, I'm not sure...


There are three questions here:

(1) Can a state decriminalize murder? - Sure. The state has plenary police powers. They can certainly choose to legalize or criminalize activities within the constraints of the Constitution.

(2) Can the federal government criminalize an activity that the state chooses not to? - Sure. So long as Congress can point to a source of the power.

(3) Can the federal government require the state to criminalize murder? - No. But, Congress could certainly coerce the state.

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zanda
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Re: Could a state legalize murder?

Postby zanda » Tue May 10, 2011 7:33 pm

When Roe considered whether "person" in 14th Amendment Due Process Clause included fetuses, I feel like that suggested that states could not make murder a legal act.

Renzo
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Re: Could a state legalize murder?

Postby Renzo » Tue May 10, 2011 10:13 pm

I am only posting to say that this question is blowing my mind as a Con law hypo. I can't waste anymore brain cells on it, because I have my own finals to study for, but suffice it to say it would be a really evil question for a final exam, along the lines of "who owns the moon?" in property.

UCLAtransfer
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Re: Could a state legalize murder?

Postby UCLAtransfer » Tue May 10, 2011 10:24 pm

flexityflex86 wrote:
Generic20101L wrote:Or is there a federal law that says murder has to be illegal?

Sorry if this is a stupid, obvious question, I'm not sure...

it must be a pain to have you in a class.

i haven't started law school yet, but i'd imagine there's some common law thing about this.


This is just priceless. I think the people who are the biggest pain to have in a class are those who are condescending about something they know NOTHING about.

Check you federal "common law thing."

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CG614
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Re: Could a state legalize murder?

Postby CG614 » Tue May 10, 2011 10:30 pm

zanda wrote:When Roe considered whether "person" in 14th Amendment Due Process Clause included fetuses, I feel like that suggested that states could not make murder a legal act.


But there is no state action. Unless the state government is doing the act, but then that would easily be covered in "life" of substantive due process in the 14th.

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mths
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Re: Could a state legalize murder?

Postby mths » Tue May 10, 2011 10:33 pm

no

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CG614
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Re: Could a state legalize murder?

Postby CG614 » Tue May 10, 2011 10:34 pm

vamedic03 wrote:
Generic20101L wrote:Or is there a federal law that says murder has to be illegal?

Sorry if this is a stupid, obvious question, I'm not sure...


There are three questions here:

(1) Can a state decriminalize murder? - Sure. The state has plenary police powers. They can certainly choose to legalize or criminalize activities within the constraints of the Constitution.

(2) Can the federal government criminalize an activity that the state chooses not to? - Sure. So long as Congress can point to a source of the power.

(3) Can the federal government require the state to criminalize murder? - No. But, Congress could certainly coerce the state.


My intuition is that the Government can use the taxing and spending power to coerce the state. Also, I am not sure that the plenary police powers would allow the state to override the state common law charge of murder. The police power is generally held to be valid if it promotes the general welfare of the people of the state. Not sure that a persuasive argument could be had there.

Also: Sorry for the multiple posts below, had an eight hour take home today and my brain is not functioning properly now. I was trying to edit this post.
Last edited by CG614 on Tue May 10, 2011 10:36 pm, edited 1 time in total.

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CG614
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Re: Could a state legalize murder?

Postby CG614 » Tue May 10, 2011 10:34 pm

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Last edited by CG614 on Tue May 10, 2011 10:35 pm, edited 1 time in total.

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CG614
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Re: Could a state legalize murder?

Postby CG614 » Tue May 10, 2011 10:35 pm

.

Scurredsitless1
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Re: Could a state legalize murder?

Postby Scurredsitless1 » Tue May 10, 2011 10:46 pm

Doesn't Printz and New York prohibit the federal government from coercing state governments into making laws (10th amendment anticommandeering principle). If the Congress forced a state legislature to act, then who would be accountable(wouldn't this create a problem of blame shifting)? I understand under Dole that Congress can incentivize state legislatures, but they cannot coerce them.

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CG614
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Re: Could a state legalize murder?

Postby CG614 » Wed May 11, 2011 10:25 am

G. T. L. Rev. wrote:
vamedic03 wrote:

CG614 wrote:My intuition is that the Government can use the taxing and spending power to coerce the state. Also, I am not sure that the plenary police powers would allow the state to override the state common law charge of murder. The police power is generally held to be valid if it promotes the general welfare of the people of the state. Not sure that a persuasive argument could be had there.

lolwut? The common law isn't some kind of default that states have to overcome. It exists in the background, filling gaps and such. States are unquestionably free to depart from it, for good reasons, bad reasons, or no reasons at all.


Go to class. Murder was a common law crime before it became a statutory crime in all states. If the states get rid of the statute, the common law crime would be upheld by the courts.

So, basically what I was saying is that a state could not use its police power to make murder legal, all it could do is decriminalize it via repealing the statute, but then the common law would take over.




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