Is this thread still alive?! I recall seeing it a week or so back and thinking "I should keep my 0L ass outta this one", but given the fair amount of stupid stuff said, I can't help myself...
Can a state decriminalize murder?
Sure; it is unrealistic that a state would do so for any number of reasons, but (theoretically) why not?. States need not have had any criminal laws with respect to murder in the first place (or any criminal laws at all?). While legitimate arguments may proceed "my state protects everyone else, it must therefore also protect me", nothing bars states from choosing to protect no one.
Can a state legalize murder?
If by legalize, we mean "in addition to removing criminal penalties, can the state also choose not to pursue damages as a civil party", the answer seems to me to be yes. I want to keep away from broad statements like "states are not required to do anything", but states are not required to bring any kind of suit against citizens.
If by legalize, we mean "preempt/forbid all civil cases arising from one person killing another person", I think not. I'm not familiar with all the state constitutions and their eminent domain clause equivalents, but I can't help but think this this would be an unconstitutional taking of property; if not, this would be more tragic than Barron v. Baltimore.
As for statutes that say things like "Murder is now legal", there is the issue of whether this counts as a state advocating violence. If you say no, then we need go no further; if the state is neutrally declaring murder to be something no longer regulated etc., such statutes are fine. Not sure how the thread got stuck on police power for so long; whatever limits apply to states' police power do not apply to states' decision not to exercise a power (the limit is on what states can do, not on what they cannot do).
Getting back to the main point: If you say yes--this counts as advocating violence--there are some potential pitfalls. I think the fed gov would have more traction with N&P route re: domestic tranquility. Also, there is arguably some state action here (re: encouraging), and the 14th amendment arguments even start to look realistic. I think it is a reach to say such statutes encourage violence, but I'm not ready to call it stupid beyond worth considering.
Does CL kick in once a state legalizes/decriminalizes murder?
LOL, what? I take it people aren't trying to say that once statutes outlawing certain actions are withdrawn, the relevant CL becomes active again; states would be unable to legalize anything that is unlawful at CL. But I'm not sure how to clean this argument up. At times it seems people are saying that the CL applies because states cannot contradict CL murder, since doing so requires an action outside the scope of state power. Again, choosing not to punish CL murder is not a positive act, and so it cannot be outside the scope of state power. I'm pretty sure this whole line of argument is addressed by the clarification the legalizing murder is not a positive act that needs some sort of justification.
Can the fed gov criminalize murder once a state legalizes it?
Obviously, the fed gov would find a way. Admittedly, there is no clear and easy way for the fed gov to do so under current law; however, I'm not sure we need to significantly depart from current law to get the job done. I know lawyers tend to reject philosophical arguments, but when you do something as radical as legalize murder, it is hard to argue from precedent. Basically, my argument is personal security is a fundamental pre-condition for the economy; I won't take my cow to the market to sell it if I think I am going to be murdered [err, killed] along the way. If you disagree with this point, I don't know what to say except read some good old Ted Lowi. To repeal murder statutes, which are critical to establishing the described personal security, is to repeal a precondition for the economy; I don't think it is a stretch for the Feds to regulate this under the ICC.
If the above argument fails, I think we can all agree that the fed gov would find a way, and I think it would most likely come on the back of some expansion of its powers under the ICC. One should also note that legalizing murder affects all sorts of other things, like theft, and perhaps these effects have clearer economic effects.
Moving on, vanilla 14th amendment arguments seem silly to me. Where's the state action? 'nuff said?
N&P is an interesting route. In general, I hate it because it is not clear where one ought to draw the line; we don't want N&P being used by the fed gov to dictate policy (i.e., the state should consider certain things murder, or punish murder a certain way). That said, if a state legalized murder, and other arguments proved unable to support a federal statute outlawing murder, I could see N&P working in a pinch.
Beyond the above, I want to get some sort of penumbral rights debate going; we usually think of these rights as negative, but I don't see why we can't have an implied positive right, i.e. the right to be protected. In general, I don't like the idea of positive rights, but in the case of legalized murder, I do. It is absolutely fundamental to my conception of a state that it protect its citizens--it is one of the chief purposes of the state. The ways to motivate this point are so numerous, I almost don't want to clarify for fear of picking the one or two ways people on this board don't like, but here I go...I must be reasonably protected to exercise my other rights (pursuit of happiness being the big one that comes to mind, but others I'm sure). What's more, the state is barred from killing me, arguably, not because the state merely lacks the power to do so, but out of recognition for my right to continued existence. [insert whatever way you want to motivate the right to be protected]
Well there it is folks. The too often seen, and almost never appreciated two cents of the 0L. At least I waited for the big boys to say their piece.