Could a state legalize murder? Forum

[mmribail]

You're not a law student, are you?

Obvious right? Not till august. And yet I know the actual answer. Commerce Clause and Interpretation. Lets be honest, the fed gov will do whatever they want when push comes to shove, so long as enough people both in power and in the electorate want it to happen.

I'll go away now.

Commerce clause would not work w/o a judical hook... Because of the limits given to it by Lopez.

[Tsispilos]

didn't read all 6 pages, so don't know if someone said this, but it could arguably violate the 14th amendment due process clause for a state to allow people within its borders to take the life of another person in a manner that would have been murder at common law without punishing the killer. this would require a finding of state action in the state legislature's and judiciary's allowance of such private action. admittedly, state action usually requires something less passive than this, but there are cases that find state action for takings clause purposes when a superior court allows someone to settle a trust in property that he had no rights in. plus, the unusualness of a state legalizing murder would probably make justices more willing than usual to stretch the meaning of state action. insofar as state legalization of murder would constitute state action, the issue would be whether the state, by so acting, was depriving any person of a protected interest (life/liberty/property). this might be a little tricky too: the state, by allowing murder to categorically go unpunished, is not actually stripping a murder victim of her life, but is rather removing a remedy for murder, namely punishment. but the question is whether the victim has any protected interest in that remedy? certainly, once the victim's life is gone, the punishment of the perpetrator does her no good; it is not like a tort remedy where the victim's estate is compensated for the harm. perhaps what the victim was really deprived of was a protection against being murdered in the first place in the form of general deterrence provided by the threat of punishment for those who commit murder. but everyone in the non-murdered population of the state suffers generally in that loss of protection; only a murder victim would likely have the kind of interest in that protection to confer standing, but for obvious reasons, a murder victim would not be able to assert a due process challenge in court. and because criminal penalties, unlike torts, do not increase the worth of the victim's estate, the victim's heirs would not have standing either. perhaps their next friend could get third party standing to correct this problem. if not, then this might be a perverse case of a right to life with no remedy for its taking. if there could be third party standing, however, then a court could move on to the next issue: whether the taking of this interest in general deterrence provided by the threat of punishment for those who commit murder is a protected life/liberty/property interest. It's not really a life interest in the classic sense, because as stated before, it's not the state that's taking the life directly. It's also probably not a property interest, since again unlike torts, it criminal remedies generally don't give property to their victims. It could be a liberty interest, however: we take for granted in a civilized society that we can freely walk about without the constant fear of being murdered; this results from the expectation that those who commit murder will be punished so severely as to deter any reasonable person from committing murder. Thus, a court would probably find a liberty interest to exist here. Since there would be no process for vindicating such a right, there could be no "due" process.

[03121202698008]

didn't read all 6 pages, so don't know if someone said this, but it could arguably violate the 14th amendment due process clause for a state to allow people within its borders to take the life of another person in a manner that would have been murder at common law without punishing the killer. this would require a finding of state action in the state legislature's and judiciary's allowance of such private action. admittedly, state action usually requires something less passive than this, but there are cases that find state action for takings clause purposes when a superior court allows someone to settle a trust in property that he had no rights in. plus, the unusualness of a state legalizing murder would probably make justices more willing than usual to stretch the meaning of state action. insofar as state legalization of murder would constitute state action, the issue would be whether the state, by so acting, was depriving any person of a protected interest (life/liberty/property). this might be a little tricky too: the state, by allowing murder to categorically go unpunished, is not actually stripping a murder victim of her life, but is rather removing a remedy for murder, namely punishment. but the question is whether the victim has any protected interest in that remedy? certainly, once the victim's life is gone, the punishment of the perpetrator does her no good; it is not like a tort remedy where the victim's estate is compensated for the harm. perhaps what the victim was really deprived of was a protection against being murdered in the first place in the form of general deterrence provided by the threat of punishment for those who commit murder. but everyone in the non-murdered population of the state suffers generally in that loss of protection; only a murder victim would likely have the kind of interest in that protection to confer standing, but for obvious reasons, a murder victim would not be able to assert a due process challenge in court. and because criminal penalties, unlike torts, do not increase the worth of the victim's estate, the victim's heirs would not have standing either. perhaps their next friend could get third party standing to correct this problem. if not, then this might be a perverse case of a right to life with no remedy for its taking. if there could be third party standing, however, then a court could move on to the next issue: whether the taking of this interest in general deterrence provided by the threat of punishment for those who commit murder is a protected life/liberty/property interest. It's not really a life interest in the classic sense, because as stated before, it's not the state that's taking the life directly. It's also probably not a property interest, since again unlike torts, it criminal remedies generally don't give property to their victims. It could be a liberty interest, however: we take for granted in a civilized society that we can freely walk about without the constant fear of being murdered; this results from the expectation that those who commit murder will be punished so severely as to deter any reasonable person from committing murder. Thus, a court would probably find a liberty interest to exist here. Since there would be no process for vindicating such a right, there could be no "due" process.

Your lack of paragraphs and capital letters offends me.

[UCLAtransfer]

didn't read all 6 pages, so don't know if someone said this, but it could arguably violate the 14th amendment due process clause for a state to allow people within its borders to take the life of another person in a manner that would have been murder at common law without punishing the killer. this would require a finding of state action in the state legislature's and judiciary's allowance of such private action. admittedly, state action usually requires something less passive than this, but there are cases that find state action for takings clause purposes when a superior court allows someone to settle a trust in property that he had no rights in. plus, the unusualness of a state legalizing murder would probably make justices more willing than usual to stretch the meaning of state action. insofar as state legalization of murder would constitute state action, the issue would be whether the state, by so acting, was depriving any person of a protected interest (life/liberty/property). this might be a little tricky too: the state, by allowing murder to categorically go unpunished, is not actually stripping a murder victim of her life, but is rather removing a remedy for murder, namely punishment. but the question is whether the victim has any protected interest in that remedy? certainly, once the victim's life is gone, the punishment of the perpetrator does her no good; it is not like a tort remedy where the victim's estate is compensated for the harm. perhaps what the victim was really deprived of was a protection against being murdered in the first place in the form of general deterrence provided by the threat of punishment for those who commit murder. but everyone in the non-murdered population of the state suffers generally in that loss of protection; only a murder victim would likely have the kind of interest in that protection to confer standing, but for obvious reasons, a murder victim would not be able to assert a due process challenge in court. and because criminal penalties, unlike torts, do not increase the worth of the victim's estate, the victim's heirs would not have standing either. perhaps their next friend could get third party standing to correct this problem. if not, then this might be a perverse case of a right to life with no remedy for its taking. if there could be third party standing, however, then a court could move on to the next issue: whether the taking of this interest in general deterrence provided by the threat of punishment for those who commit murder is a protected life/liberty/property interest. It's not really a life interest in the classic sense, because as stated before, it's not the state that's taking the life directly. It's also probably not a property interest, since again unlike torts, it criminal remedies generally don't give property to their victims. It could be a liberty interest, however: we take for granted in a civilized society that we can freely walk about without the constant fear of being murdered; this results from the expectation that those who commit murder will be punished so severely as to deter any reasonable person from committing murder. Thus, a court would probably find a liberty interest to exist here. Since there would be no process for vindicating such a right, there could be no "due" process.

tl;dr, just wanted to say that this ridiculous block of text made me laugh.

[mmribail]

didn't read all 6 pages, so don't know if someone said this, but it could arguably violate the 14th amendment due process clause for a state to allow people within its borders to take the life of another person in a manner that would have been murder at common law without punishing the killer. this would require a finding of state action in the state legislature's and judiciary's allowance of such private action. admittedly, state action usually requires something less passive than this, but there are cases that find state action for takings clause purposes when a superior court allows someone to settle a trust in property that he had no rights in. plus, the unusualness of a state legalizing murder would probably make justices more willing than usual to stretch the meaning of state action. insofar as state legalization of murder would constitute state action, the issue would be whether the state, by so acting, was depriving any person of a protected interest (life/liberty/property). this might be a little tricky too: the state, by allowing murder to categorically go unpunished, is not actually stripping a murder victim of her life, but is rather removing a remedy for murder, namely punishment. but the question is whether the victim has any protected interest in that remedy? certainly, once the victim's life is gone, the punishment of the perpetrator does her no good; it is not like a tort remedy where the victim's estate is compensated for the harm. perhaps what the victim was really deprived of was a protection against being murdered in the first place in the form of general deterrence provided by the threat of punishment for those who commit murder. but everyone in the non-murdered population of the state suffers generally in that loss of protection; only a murder victim would likely have the kind of interest in that protection to confer standing, but for obvious reasons, a murder victim would not be able to assert a due process challenge in court. and because criminal penalties, unlike torts, do not increase the worth of the victim's estate, the victim's heirs would not have standing either. perhaps their next friend could get third party standing to correct this problem. if not, then this might be a perverse case of a right to life with no remedy for its taking. if there could be third party standing, however, then a court could move on to the next issue: whether the taking of this interest in general deterrence provided by the threat of punishment for those who commit murder is a protected life/liberty/property interest. It's not really a life interest in the classic sense, because as stated before, it's not the state that's taking the life directly. It's also probably not a property interest, since again unlike torts, it criminal remedies generally don't give property to their victims. It could be a liberty interest, however: we take for granted in a civilized society that we can freely walk about without the constant fear of being murdered; this results from the expectation that those who commit murder will be punished so severely as to deter any reasonable person from committing murder. Thus, a court would probably find a liberty interest to exist here. Since there would be no process for vindicating such a right, there could be no "due" process.

Hmm, I wonder if that would conflict with Gonzales though. I know in that case it dealt with police protection, but the court still found that there is no liberty interest in that protection. The same reasoning can be applied to the state not decriminalizing murder. Good argument though.

[Borhas]

tl;dr, just wanted to say that this ridiculous block of text made me laugh.

lol'ed twice

[thecynic69]

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.

[vanwinkle]

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"

You should have kept thinking that.

[mmribail]

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"

You should have kept thinking that.

Ha ha, well at least that wasn't the worst 0L post I've seen.

[thecynic69]

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"

You should have kept thinking that.

Eh, past a certain point, you are just hating on 0Ls just to hate. It is only really bad when a 0L posts on these kinds of threads without advertising that s/he is a 0L. I get that it can be annoying for 0Ls to post in the middle of finals prep, even when they make it clear they are 0Ls; however, as I understand it, finals are over (though I make room for the possibility that they aren't over at every school). And come on, the law school kids have had a crack at this topic already--it isn't like I jumped right on it. By and large the facts are on the table [this is where law school students have the edge], and any remaining confusion seems to be what conclusions to draw from these facts [0Ls can reason too...]. In the end, this is not a question that requires a lot of expertise...a basic understanding of the American system of government goes a long way here. If I said some really retarded shit, I'm willing to eat my words, but general 0L hate is a little silly at this point...

[Fark-o-vision]

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"

You should have kept thinking that.

Eh, past a certain point, you are just hating on 0Ls just to hate. It is only really bad when a 0L posts on these kinds of threads without advertising that s/he is a 0L. I get that it can be annoying for 0Ls to post in the middle of finals prep, even when they make it clear they are 0Ls; however, as I understand it, finals are over (though I make room for the possibility that they aren't over at every school). And come on, the law school kids have had a crack at this topic already--it isn't like I jumped right on it. By and large the facts are on the table [this is where law school students have the edge], and any remaining confusion seems to be what conclusions to draw from these facts [0Ls can reason too...]. In the end, this is not a question that requires a lot of expertise...a basic understanding of the American system of government goes a long way here. If I said some really retarded shit, I'm willing to eat my words, but general 0L hate is a little silly at this point...

Another 0L who isn't altogether interested in defending/prosecuting 0L posting (INTERNET IS SERIOUS BUSINESS!) but I am interested in what, really, was so wrong with your post? After reading through the thread, yours seemed to hold together the best for me (admittedly, this is probably because we are both 0L's). I'm not saying I thought you were right, or that I have any opinion on the subject at all worth mentioning, but I would like to know what was wrong with your post.

I guess it really isn't anyone's job to educate us, but it would be a good read.

[Remnantofisrael]

At risk of getting annihilated, I have to echo Fark-o here. Unlike him, I defer to mighty 1L's, who, after a single year of legal education that ranges from excellent and rounded to short-sighted and opinion based, are now such extreme experts that they have no need to entertain arguments that exist outside the framework they now believe is true without much question.

That sounds like sarcasm but it isn't, because while I stand by the above, it doesn't negate the fact that this "framework" IS the grounds for this discussion. While I might argue bringing in history and philosophy to point out that things that would have been impossible or unconstitutional 100 years ago have become commonplace and excepted due to legislation, amendments (which I get, are hard) or just wildly different judicial interpretation. Point being if something is a significant enough threat, it will be taken care of, current constitution/interpretation be damned. It will get justified someway.

But that point doesn't matter in the least, because its boring to a lot of 1L's I would assume (correct me if I'm wrong). Because who cares what COULD happen that would negate the interest of whatever hypothetical question is being asked. The fun thing to do is justify an answer based on current law and all that implies because it requires greater knowledge and creativity, and shows how big a penis you have with which to bludgeon stupid underclassmen.

And last point- 90% of the 1L's on this board I have interacted with have been extremely helpful to people like me looking to go the LS, and 2L's to 1L's and so on, and I'd venture a guess that 90% of the 0L's will be just like their 1L counterparts a year from now when their entire paradigm has been brutally murdered and replaced with the insecurity-deflecting hardness necessary to do well in LS.

[Borhas]

quit whining

[Chupavida]

Sure, a state could decriminalize murder in the unlikely event the legislature voted accordingly. The framework of crime and punishment is almost entirely a legislative matter in the US, and accordingly, if something isn't expressly declared to be a crime, it isn't constitutionally punishable by law (ex post facto blah blah). In our modern system, the common law is relevant only as context for the statutes (interpretation, "wtf does malice aforethought mean," etc.).

The federal government couldn't do anything directly, but they could bribe their way to what they want as forcefully as the Dole test would let them. They are also free to criminalize whatever they can push through a Lopez test (which is pretty much anything), but that doesn't mean anything to the state (see California and the decriminalization of weed, and Printz re: anti-commandeering). The fact that something is a federal crime means little without enforcement, which is why medicinal marijuana users smoke with impunity.

To the 0Ls, it's nothing personal, it's just the way of things. Come back in a year and see if you don't laugh just as hard at the next generation.

[thecynic69]

Sure, a state could decriminalize murder in the unlikely event the legislature voted accordingly. The framework of crime and punishment is almost entirely a legislative matter in the US, and accordingly, if something isn't expressly declared to be a crime, it isn't constitutionally punishable by law (ex post facto blah blah). In our modern system, the common law is relevant only as context for the statutes (interpretation, "wtf does malice aforethought mean," etc.).

The federal government couldn't do anything directly, but they could bribe their way to what they want as forcefully as the Dole test would let them. They are also free to criminalize whatever they can push through a Lopez test (which is pretty much anything), but that doesn't mean anything to the state (see California and the decriminalization of weed, and Printz re: anti-commandeering). The fact that something is a federal crime means little without enforcement, which is why medicinal marijuana users smoke with impunity.

To the 0Ls, it's nothing personal, it's just the way of things. Come back in a year and see if you don't laugh just as hard at the next generation.

Look, I stay out of most threads; I usually assume I lack relevant facts. But seriously, you guys aren't referencing obscure cases. I don't know what other people's ugrad coursework consisted of, but Printz, Wickard, Lopez, Morrison, City of Boerne, Dole, Employment Division v. Smith, and other federalism cases have been required reading in one or more of my classes [admittedly, a lot of the cases we read are short versions]. What I'm saying is this is less an obscure legal topic and more a "do you know how our government works" kinda thing. I read this thread, waiting for the conversation to take the usual dive into things I had never heard of, but it didn't. And after 5 pages of discussion (with tons of painfully stupid comments--apparently by law students?!), I chimed in. The standard 0L hate response is bs. It isn't 'just the way of things'. You can ignore my post, but I won't be made to feel silly for posting. You guys are the ones being silly--either you guys are butt hurt for being hated on when you were 0Ls, or you are hating just to hate.

Again, I'm willing to eat these words, if given a good argument for why what I said was standard 0L non-sense.

[UCLAtransfer]

Again, I'm willing to eat these words, if given a good argument for why what I said was standard 0L non-sense.

To be fair, your reasoning is solid, and certainly shows a much better grasp of the issues than many of the previous posters who (claim to be) law students. (E.g., the lack of any understanding as to how the police power and common law operate.)

[Veyron]

Lol, too many 0Ls ITT.

Yes, a state could de-criminalize murder. If they did and they had an otherwise modern penal code, common-law would not gap fill since modern codes provide that "all that is not forbidden is allowed."

However, there is the possibility that the federal government could use 14 to force a state to re-criminalize murder. Alternatively, recent commerce clause cases have shown that the court has essentially stopped its move away from limiting the commerce power so that is a possibility. Even if SCOTUS was inclined to resume limiting the commerce power, the feds could use a jurisdictional hook and say that murdering people with any instrument that had moved in i-state commerce (or the manufacture of which had substantially affected i-state commerce) is illegal (this is the most likely outcome). Since virtually all murder weapons have moved in i-state commerce or their manufacture substantially effects i-state commerce, VIRTUALLY all murder would be made illegal under such a provision. Something very similar happened after Lopez where Congress added a similar jurisdictional hook and was permitted to continue enforcing the Gun Free School Zones Act. SCOTUS might even choose to dust off the long dormant Art IV, Sec 4 "republican form of government" thingy and say that no state where murder is legal could have a legitimately democratic government since elected officials would be getting their asses shot off all the time.

Its been experience that when the federal government really wants to regulate something, they find some way to do it.

Edit: And yes, the feds could also try to bribe under the Dole framework, in that regard, one of the 0Ls spoke truth. That doesn't really go to the heart of the theoretical issue tho.

[ResolutePear]

Too many 0Ls ITT.

Yes, a state could de-criminalize murder. If they did and they had an otherwise modern penal code, common-law would not gap fill since modern codes provide that "all that is not forbidden is allowed."

However, there is the possibility that the federal government could use 14 to force a state to re-criminalize murder. Alternatively, recent commerce clause cases have shown that the court has essentially stopped its move away from limiting the commerce power so that is a possibility. Even if SCOTUS was inclined to resume limiting the commerce power, the feds could use a jurisdictional hook and say that murdering people with any instrument that had moved in i-state commerce (or the manufacture of which had substantially affected i-state commerce) is illegal (this is most likely). Since virtually all murder weapons have moved in i-state commerce or their manufacture substantially effects i-state commerce, VIRTUALLY all murder would be made illegal under such a provision. SCOTUS might even choose to dust off the long dormant Art IV, Sec 4 "republican form of government" thingy and say that no state where murder is legal could have a legitimately democratic government since elected officials would be getting their asses shot off all the time.

Its been experience that when the federal government really wants to regulate something, they find some way to do it.

For somebody who's complaining about 0Ls, you provided nothing above those responses. Elaborate?

[Fark-o-vision]

Lol, too many 0Ls ITT.

Yes, a state could de-criminalize murder. If they did and they had an otherwise modern penal code, common-law would not gap fill since modern codes provide that "all that is not forbidden is allowed."

However, there is the possibility that the federal government could use 14 to force a state to re-criminalize murder. Alternatively, recent commerce clause cases have shown that the court has essentially stopped its move away from limiting the commerce power so that is a possibility. Even if SCOTUS was inclined to resume limiting the commerce power, the feds could use a jurisdictional hook and say that murdering people with any instrument that had moved in i-state commerce (or the manufacture of which had substantially affected i-state commerce) is illegal (this is the most likely outcome). Since virtually all murder weapons have moved in i-state commerce or their manufacture substantially effects i-state commerce, VIRTUALLY all murder would be made illegal under such a provision. Something very similar happened after Lopez where Congress added a similar jurisdictional hook and was permitted to continue enforcing the Gun Free School Zones Act. SCOTUS might even choose to dust off the long dormant Art IV, Sec 4 "republican form of government" thingy and say that no state where murder is legal could have a legitimately democratic government since elected officials would be getting their asses shot off all the time.

Its been experience that when the federal government really wants to regulate something, they find some way to do it.

Yeah. I like Veyron's posts, which tend to be informative and interesting, but I feel like the gang of "Fed's would find a way, because fed's find a way" are sort of missing the point.

[Veyron]

Lol, too many 0Ls ITT.

Yes, a state could de-criminalize murder. If they did and they had an otherwise modern penal code, common-law would not gap fill since modern codes provide that "all that is not forbidden is allowed."

However, there is the possibility that the federal government could use 14 to force a state to re-criminalize murder. Alternatively, recent commerce clause cases have shown that the court has essentially stopped its move away from limiting the commerce power so that is a possibility. Even if SCOTUS was inclined to resume limiting the commerce power, the feds could use a jurisdictional hook and say that murdering people with any instrument that had moved in i-state commerce (or the manufacture of which had substantially affected i-state commerce) is illegal (this is the most likely outcome). Since virtually all murder weapons have moved in i-state commerce or their manufacture substantially effects i-state commerce, VIRTUALLY all murder would be made illegal under such a provision. Something very similar happened after Lopez where Congress added a similar jurisdictional hook and was permitted to continue enforcing the Gun Free School Zones Act. SCOTUS might even choose to dust off the long dormant Art IV, Sec 4 "republican form of government" thingy and say that no state where murder is legal could have a legitimately democratic government since elected officials would be getting their asses shot off all the time.

Its been experience that when the federal government really wants to regulate something, they find some way to do it.

Yeah. I like Veyron's posts, which tend to be informative and interesting, but I feel like the gang of "Fed's would find a way, because fed's find a way" are sort of missing the point.

And what is the point? The commerce power will shit on your face all day, every day. Its like giant fecal leviathan.

[ResolutePear]

Lol, too many 0Ls ITT.

Yes, a state could de-criminalize murder. If they did and they had an otherwise modern penal code, common-law would not gap fill since modern codes provide that "all that is not forbidden is allowed."

However, there is the possibility that the federal government could use 14 to force a state to re-criminalize murder. Alternatively, recent commerce clause cases have shown that the court has essentially stopped its move away from limiting the commerce power so that is a possibility. Even if SCOTUS was inclined to resume limiting the commerce power, the feds could use a jurisdictional hook and say that murdering people with any instrument that had moved in i-state commerce (or the manufacture of which had substantially affected i-state commerce) is illegal (this is the most likely outcome). Since virtually all murder weapons have moved in i-state commerce or their manufacture substantially effects i-state commerce, VIRTUALLY all murder would be made illegal under such a provision. Something very similar happened after Lopez where Congress added a similar jurisdictional hook and was permitted to continue enforcing the Gun Free School Zones Act. SCOTUS might even choose to dust off the long dormant Art IV, Sec 4 "republican form of government" thingy and say that no state where murder is legal could have a legitimately democratic government since elected officials would be getting their asses shot off all the time.

Its been experience that when the federal government really wants to regulate something, they find some way to do it.

Yeah. I like Veyron's posts, which tend to be informative and interesting, but I feel like the gang of "Fed's would find a way, because fed's find a way" are sort of missing the point.

And what is the point? The commerce power will shit on your face all day, every day. Its like giant fecal leviathan.

That Civil Rights Act. Damn that commerce clause, damn it all.

[Chupavida]

Sure, a state could decriminalize murder in the unlikely event the legislature voted accordingly. The framework of crime and punishment is almost entirely a legislative matter in the US, and accordingly, if something isn't expressly declared to be a crime, it isn't constitutionally punishable by law (ex post facto blah blah). In our modern system, the common law is relevant only as context for the statutes (interpretation, "wtf does malice aforethought mean," etc.).

The federal government couldn't do anything directly, but they could bribe their way to what they want as forcefully as the Dole test would let them. They are also free to criminalize whatever they can push through a Lopez test (which is pretty much anything), but that doesn't mean anything to the state (see California and the decriminalization of weed, and Printz re: anti-commandeering). The fact that something is a federal crime means little without enforcement, which is why medicinal marijuana users smoke with impunity.

To the 0Ls, it's nothing personal, it's just the way of things. Come back in a year and see if you don't laugh just as hard at the next generation.

Look, I stay out of most threads; I usually assume I lack relevant facts. But seriously, you guys aren't referencing obscure cases. I don't know what other people's ugrad coursework consisted of, but Printz, Wickard, Lopez, Morrison, City of Boerne, Dole, Employment Division v. Smith, and other federalism cases have been required reading in one or more of my classes [admittedly, a lot of the cases we read are short versions]. What I'm saying is this is less an obscure legal topic and more a "do you know how our government works" kinda thing. I read this thread, waiting for the conversation to take the usual dive into things I had never heard of, but it didn't. And after 5 pages of discussion (with tons of painfully stupid comments--apparently by law students?!), I chimed in. The standard 0L hate response is bs. It isn't 'just the way of things'. You can ignore my post, but I won't be made to feel silly for posting. You guys are the ones being silly--either you guys are butt hurt for being hated on when you were 0Ls, or you are hating just to hate.

Again, I'm willing to eat these words, if given a good argument for why what I said was standard 0L non-sense.

Easy now, I neither insulted your response, nor did I engage in any "hating just to hate." I merely referred to the reality of the 1L -> 0L relationship. Most 0Ls really don't belong in any discussion of substantive law, the quest for legal employment, or life as a law student. They often think they do however, and accordingly have established a long and storied tradition of making silly posts, for which they are often mocked. That you, individually, might believe you have a good grasp on the basic workings of our government does not change those institutional realities, nor does the fact that there are law students who couldn't "law" their way out of paper bag.

The irony is that practicing attorneys often feel exactly the same way about law students. So at least you can console yourself with the knowledge that there is someone out there mocking your mocker.

[Remnantofisrael]

Did it occur to you that some of the people ITT are not 1Ls, but are instead law grads? Seriously, in this, the "students and graduates forum," you should basically never post about substantive law as a 0L. Ever. It clogs the forum with all kinds of unintelligible, largely incorrect nonsense.

I'm not going to argue about whether 0L's should be posting in this forum on substantive law. I suppose that I ignorantly assumed that 0L still = law student, but I'm clearly wrong and its refreshing to know that our thoughts are automatically valueless in the eyes of many, something you will get to enjoy again when you begin your legal career. As will most of us.

My error was in thinking this was a rhetorical thought exercise without any real relevance in true substantive law - hell, most of my worthless ideas were more in dealing with procedure and practical application, but my bad. I figured insane hypothetical thought exercises would be an interesting experience, and assumed I'd get my ideas destroyed, not my mere presence.

BUT I get that if I were in your shoes I wouldn't want to waste my time explaining things 90% of my peers already knew. It hijacks and wastes brain-bandwidth. So I'll stay out of these convo's till one day after my 1L starts, and I suggest other 0L's do the same. Then we can have 2L's tell us we are wrong instead of we are 0L's and irrelevant.

[Veyron]

Did it occur to you that some of the people ITT are not 1Ls, but are instead law grads? Seriously, in this, the "students and graduates forum," you should basically never post about substantive law as a 0L. Ever. It clogs the forum with all kinds of unintelligible, largely incorrect nonsense.

I'm not going to argue about whether 0L's should be posting in this forum on substantive law. I suppose that I ignorantly assumed that 0L still = law student, but I'm clearly wrong and its refreshing to know that our thoughts are automatically valueless in the eyes of many, something you will get to enjoy again when you begin your legal career. As will most of us.

My error was in thinking this was a rhetorical thought exercise without any real relevance in true substantive law - hell, most of my worthless ideas were more in dealing with procedure and practical application, but my bad. I figured insane hypothetical thought exercises would be an interesting experience, and assumed I'd get my ideas destroyed, not my mere presence.

BUT I get that if I were in your shoes I wouldn't want to waste my time explaining things 90% of my peers already knew. It hijacks and wastes brain-bandwidth. So I'll stay out of these convo's till one day after my 1L starts, and I suggest other 0L's do the same. Then we can have 2L's tell us we are wrong instead of we are 0L's and irrelevant.

If 1L exams teach anything its this: fuck theory, argue the BLL on both sides then, give the right answer.

[mmribail]

The first issue I have found is your argument that the necessary and proper clause working here. The necessary and proper clause has already been limited to only apply to congress carrying out their enumerated powers. It has never been interpreted as a catch all rule that can come into play when congress cannot otherwise regulate something. At least not currently (The commerce clause is the closest thing). You can argue that the law may change and this clause could be expanded if a state actually did in fact criminalize murder. I think you do say that towards the end of your discussion of N & P; therefore, I will give you a break there. Although that argument can be used for any other body of law (I still don't understand why the P & I clause of the 14th amendment hasn't been changed by now. So keep in mind it isn't like the justices change their minds about how the law is interpreted at a whim).

As for your paragraph on whether the common law would kick in...well this has already been discussed and is just a plain bad argument. Even non-law students can catch this and you did. Good for you.

As for your argument about a potential civil remedy for murder being barred. This is one of the more interesting arguments. The only issue with this that I can find is the state action doctrine and although there may be an argument that it would not apply here because the potential plaintiff is suing the actual perp that did the killing and the courts just serve as a mediator most law students would have at least addressed this issue...because it is an issue that you can't get away from if you make this argument. Also, the eminent domain argument also has a state action doctrine related issue here. The state is not doing the taking; the perp is. If you are talking about the civil remedy though you would ask whether the plaintiff had a property right in that remedy. Numerous cases have concluded that if the right is not vested then there is no property right (See, the numerous social security benefit cases/welfare benefit cases; sorry I do not know them by name and I am not going to look them up).

I find the state encouraging murder argument the most interesting and probably the best argument. Contrary to what others have said here a state promoting the general welfare is subject to judicial review; however, that review is rational basis review. The court has found at times that a state has failed to meet this requirement. In Lawrence v. Texas, the court applied rational basis, but found that there was none. So assuming that a state finds that encouragement is enough to surpass the state action doctrine then we can move on to asking if there is a rational basis for the state encouraging this behavior. I personally, believe that there is none. If there is none for gay sex then I would be hard pressed that the court could find one for murder. So, actually you are right, but you don't then argue n & p clause. You argue fundamental due process arguments.

The commerce clause is another good argument, but it runs into Lopez limitations. Murder by itself is not directly related to commercial activity; although this JUST came to me while writing this. You may not need to argue the substantially related to interstate commerce argument at all! You can argue that people are instrumentalities of commerce just like the court found in the civil rights cases. Although, the cases involved public places such as hotels and restaurants the court did say people are instrumentalities of commerce. And Lopez did seem to imply that congress can relate in this area even if the activity is purely intrastate. Killing of people (Which are today considered instrumentalities of commerce) in itself maybe able to trigger the congress to be able to regulate based on this argument.

Overall, I actually think this guy did a decent job here. Enough for a C in con law next year, but this is without the benefit of going through the first year.