blowhard wrote:UCLAtransfer wrote:blowhard wrote:Clearly congress could change this limitation and thus preempt the states if a state went rogue and legalized murder though. In fact, the jurisdictional limit was probably only emplaced so as to not preempt state murder laws that differ.
Nope, see my post above. The only way the jurisdictional limit could be changed is if SCOTUS changed course, overruled Lopez, and found that any old murder could now fall under Congress's commerce clause power. (Not to say this wouldn't happen if some state did go rogue, but under the current state of the law, congress would not be able to just pass a new law outlawing any old murder.)
I still argue they could under the commerce clause as a murder free-for-all would have a substantial affect on interstate commerce without aggregation and therefor not violate Morrison. There are plenty of statutes post-Morrison which have less apparent effects that that. Hell, Congress got around Morrison and re-enacted the Gun-Free act because the gun had moved in interstate commerce.
Imagine the effects on interstate commerce if everyone in one state started whacking each other. Interstate travel would be affected, cargo wouldn't move, materials manufactured for interstate transport wouldn't move. This isn't a tangental effect like in Lopez.
Yeah, I see what you are saying. But I still think that we are talking about a (non-trivial) change in the state of the law in order to support a federal "all purpose" murder statute. As it stands, the Gun-Free School Zones Act was only upheld BECAUSE of the fact that it placed a limitation on prosecutions to only those cases where there was specific evidence that the gun had moved in interstate commerce.
So while I think you are right in arguing that if a state were to go rogue and legalize murder, Congress would pass an all purpose murder statute that would have pretty compelling support under the Commerce Clause, I guess I'm just arguing that to do so would still require a substantial change in the current state of the Commerce Clause power, and thus it wouldn't necessarily be a slam dunk under the current state of commerce clause jurisprudence.