Could a state legalize murder? Forum

[Mroberts3]

My argument is that the states could not legalize murder under the police power. They could only repeal the current statute, thus leaving no law on the subject at all. In that case, the common law crime of murder could be called upon by the courts.

Your argument makes no sense whatsoever. What in the police power forbids them from legalizing any currently criminal action?

Forgive my use of wiki, as I don't have time to fully research this, but the police power has been interpreted that the states have power to promote the general welfare of the people. I argue that they in no way could use that power to affirmatively "legalize" murder as it goes against any concept of general welfare and therefore would be an unconstitutional use of the police power.

http://en.wikipedia.org/wiki/Police_power#cite_note-0

But I think you are confusing who gets to choose: The states say what is in the general welfare, not the courts (at least under rational basis). If everyone in Idaho woke up tomorrow and thought "the general welfare means being able to do whatever the fuck I want" and gets the legislature to endorse this view, who are you as a court to say that's not the case?

In other words, the police power itself is the power to decide what is the general welfare, even if you disagree (as would any sane person in the case of legalizing murder, which is why it won't happen).

[vanwinkle]

Are you reading my comments at all? I said the state could repeal, but then the common law could take over. What I said would be an unconstitutional use of the police power would be to try and affirmatively legalize murder. Like pass a statute that reads, "Murder is legal."

I am reading your comments. Once again, you're interpreting the state choosing to not do something as unconstitutional. Passing a statute that says "murder is legal" is saying that they choose not to use the police power anymore to criminalize murder.

You're saying the state legislature does not have the power to say "we have the police power to criminalize X but we no longer want to use that power to criminalize X". The state legislature clearly has this power, and it's generally not an "unconstitutional use" of a power to simply decline to use it. You're arguing that it is here, without providing any support for it whatsoever.

[CG614]

Are you reading my comments at all? I said the state could repeal, but then the common law could take over. What I said would be an unconstitutional use of the police power would be to try and affirmatively legalize murder. Like pass a statute that reads, "Murder is legal."

I am reading your comments. Once again, you're interpreting the state choosing to not do something as unconstitutional. Passing a statute that says "murder is legal" is saying that they choose not to use the police power anymore to criminalize murder.

You're saying the state legislature does not have the power to say "we have the police power to criminalize X but we no longer want to use that power to criminalize X". The state legislature clearly has this power, and it's generally not an "unconstitutional use" of a power to simply decline to use it. You're arguing that it is here, without providing any support for it whatsoever.

There is a gap in our logic, because that is not what I am saying at all.

[vanwinkle]

There is a gap in our logic, because that is not what I am saying at all.

Let me make it simple for you:

Affirmatively legalizing something = choosing to not use the police power to prohibit it anymore

Can you understand this much?

[UCLAtransfer]

My argument is that the states could not legalize murder under the police power. They could only repeal the current statute, thus leaving no law on the subject at all. In that case, the common law crime of murder could be called upon by the courts.

Your argument makes no sense whatsoever. What in the police power forbids them from legalizing any currently criminal action?

Forgive my use of wiki, as I don't have time to fully research this, but the police power has been interpreted that the states have power to promote the general welfare of the people. I argue that they in no way could use that power to affirmatively "legalize" murder as it goes against any concept of general welfare and therefore would be an unconstitutional use of the police power.

http://en.wikipedia.org/wiki/Police_power#cite_note-0

Yeah, your understanding of the police power seems to be quite a bit off. All the police power does is allow states the power to pass laws. It does not establish any affirmative obligations on what those laws must do, nor does it provide an independent check on those laws. The only limitations on states' police powers are those imposed by the constitution (federal and state).

Under your view of the police power, a law could merely be challenged as "go[ing] against any concept of general welfare," and would thus merely end up as a policy debate, with some judge choosing what the best policy is to "promote the general welfare of the people."

[CG614]

There is a gap in our logic, because that is not what I am saying at all.

Let me make it simple for you:

Affirmatively legalizing something = choosing to not use the police power to prohibit it anymore

Can you understand this much?

That is where I argue the common law would come in, thus it would not be affirmatively legalized. Do you understand this is the same argument I've made for 15 posts now?

[CG614]

My argument is that the states could not legalize murder under the police power. They could only repeal the current statute, thus leaving no law on the subject at all. In that case, the common law crime of murder could be called upon by the courts.

Your argument makes no sense whatsoever. What in the police power forbids them from legalizing any currently criminal action?

Forgive my use of wiki, as I don't have time to fully research this, but the police power has been interpreted that the states have power to promote the general welfare of the people. I argue that they in no way could use that power to affirmatively "legalize" murder as it goes against any concept of general welfare and therefore would be an unconstitutional use of the police power.

http://en.wikipedia.org/wiki/Police_power#cite_note-0

Yeah, your understanding of the police power seems to be quite a bit off. All the police power does is allow states the power to pass laws. It does not establish any affirmative obligations on what those laws must do, nor does it provide an independent check on those laws. The only limitations on states' police powers are those imposed by the constitution (federal and state).

Under your view of the police power, a law could merely be challenged as "go[ing] against any concept of general welfare," and would thus merely end up as a policy debate, with some judge choosing what the best policy is to "promote the general welfare of the people."

Again, not what I said.

[vanwinkle]

Under your view of the police power, a law could merely be challenged as "go[ing] against any concept of general welfare," and would thus merely end up as a policy debate, with some judge choosing what the best policy is to "promote the general welfare of the people."

Not only that, but under his construction, repeal of any criminal law could be challenged in the same way. You could sue to block the legalization of anything! The legislature could decide to legalize driving at any speed on open highways, but you could sue and get a court to block the change because speeding is not in the general welfare.

This is kind of absurd.

[vanwinkle]

There is a gap in our logic, because that is not what I am saying at all.

Let me make it simple for you:

Affirmatively legalizing something = choosing to not use the police power to prohibit it anymore

Can you understand this much?

That is where I argue the common law would come in, thus it would not be affirmatively legalized. Do you understand this is the same argument I've made for 15 posts now?

So you're arguing that the common law must come in, even if the legislature has acted to overrule it? You do understand that acts by a state legislature pre-empt the common law, correct?

I'm beginning to get why you're making such a ridiculous argument.

[UCLAtransfer]

I argue that they in no way could use that power to affirmatively "legalize" murder as it goes against any concept of general welfare and therefore would be an unconstitutional use of the police power.

Again, not what I said.

Uhh, what?

You say it "would be an unconstitutional use of the police power" because it "goes against any concept of general welfare." (These are direct quotes, see above.)

I say, there is no such thing as an unconstitutional use of the police power except as it violates some constitutional provision (think First Amendment, Fourth Amendment, Due Process, Equal Protection), and there is certainly no unconstitutional use of the police power merely because it "goes against any concept of general welfare."

[CG614]

There is a gap in our logic, because that is not what I am saying at all.

Let me make it simple for you:

Affirmatively legalizing something = choosing to not use the police power to prohibit it anymore

Can you understand this much?

That is where I argue the common law would come in, thus it would not be affirmatively legalized. Do you understand this is the same argument I've made for 15 posts now?

So you're arguing that the common law must come in, even if the legislature has acted to overrule it? You do understand that acts by a state legislature pre-empt the common law, correct?

I'm beginning to get why you're making such a ridiculous argument.

My argument is to Murder. I never said it would apply to lesser crimes. So, it is not that absurd. Read my posts again, maybe they will make sense to you the second time. This time try not to read them with a preconceived notion that I am wrong, that may help.

Clearly, if the states could make murder "legal," which I might add that statutes don't usually proscribe acts as legal, then the courts would be bound by that statute.

As I pointed out earlier, there are states that have statutes defining what happens when a criminal statute is repealed: The act of repeal is interpreted as intending removal of the crime, and the common law shall not replace it. This is why states can repeal sodomy laws (for example) without the courts suddenly going, well, we'll still convict you of sodomy anyway.

I was not aware of this, but I feel like the court would find a way. For instance, interpret that the legislature, when it passed the statute that defines what happens when a statute is repealed, did not intend to include capital crimes. Realistically, the court would find a way.

[UCLAtransfer]

Under your view of the police power, a law could merely be challenged as "go[ing] against any concept of general welfare," and would thus merely end up as a policy debate, with some judge choosing what the best policy is to "promote the general welfare of the people."

Not only that, but under his construction, repeal of any criminal law could be challenged in the same way. You could sue to block the legalization of anything! The legislature could decide to legalize driving at any speed on open highways, but you could sue and get a court to block the change because speeding is not in the general welfare.

This is kind of absurd.

Wow, the logic is even more preposterous than I originally thought, haha.

[vanwinkle]

My argument is to Murder. I never said it would apply to lesser crimes. So, it is not that absurd. Read my posts again, maybe they will make sense to you the second time. This time try not to read them with a preconceived notion that I am wrong, that may help.

Read it again. Still not seeing an argument that makes sense. Actually, one of your quoted lines seems to recognize that the courts would be bound by a statute explicitly making a currently illegal act legal.

Also, it would be absurd for a court to say the legislature "didn't mean" for a repeal to apply to capital crimes if the legislative history or the act itself said that they explicitly meant to repeal the entire offense of murder from the books. Sure, they could do it, but it would be seen as a decision completely unfounded in law.

[UCLAtransfer]

CG, if your only argument is "murder is special and the court would find a way," without providing any reasoning or argument about how it could possibly do so, how is this even a discussion?

What I am saying is that under our legal system, murder doesn't get some special treatment that exempts it from how repealing statutes affects the common law, and there is actually no way (that I can think of) that a court could just "find a way" to change this result.

[Renzo]

It just spontaneously came to me.


Having the state protect you from murder is both deeply rooted in our nation's history and implicit in notions of ordered liberty; there's a substantive right to have the state protect you from murder. For a state to fail to offer some protection of your life from your fellow man would thus be unconstitutional.

[vanwinkle]

It just spontaneously came to me.


Having the state protect you from murder is both deeply rooted in our nation's history and implicit in notions of ordered liberty; there's a substantive right to have the state protect you from murder. For a state to fail to offer some protection of your life from your fellow man would thus be unconstitutional.

This is more sane than CG's "the police power requires it" version, at least. I don't think I've ever heard of substantive due process being used to require criminal prosecution instead of blocking it, though.

Perhaps you could argue that this substantive right provides a federal interest strong enough that the Feds could prosecute murders in states that declined to exercise their police power and do it themselves. To keep this from becoming a runaway grant of federal power, though, it would have to be limited to states that fully rejected murder as a crime, not just states that declined to prosecute some cases. (That is, your right is sufficiently protected if the state has a system in place to prosecute murderers, even if that system fails to prosecute your loved one's murderer.)

[stonepeep]

This argument that the "common law of murder" would step in is stupid for two reasons.

First, one has to assume that the highly statutory nature of the criminal law means that it preempts the entire common law, even as to those "crimes" on which the statute is currently silent. Perhaps there are a few exceptions for lesser crimes the legislature has never affirmatively addressed (such as that female drivers example in an earlier post), but if the legislature were to eliminate a law against a specific crime, it doesn't make any sense to think that the common law would fill that gap, as it means the legislature can never legalize anything unless it has never been a crime to begin with, or by creating statutory approval of any act that is not meant to be a crime. Neither option makes sense.

On a somewhat related note, I think you would have to go WAY back in history to find a time when murder was made illegal by judicial precedent rather than "statute." I mean, it's even "statutorily" prohibited in the Bible.

Second, the argument ignores the realities of criminal prosecution. How would the court even get a case in the first place in which it could decide that the common law applied? The decision whether or not to uphold the legalization of murder in specific cases would fall on the executive branch, as they make the decision about who and what to charge. It's not as though someone could be before the court on other charges and the judge could just tell the jury, "by the way, you can also convict this guy of murder." Granted, the executive branch could decide that they would continue charging people with murder despite the new law. But some of the posts here seem to imply that the decision would be up to the courts, when it never would be.

As for the due process argument, Deshaney v. Winnebago rejected a substantive due process argument that the state has an affirmative duty to protect citizens, just as Castle Rock v. Gonzalez rejected that argument on a procedural due process theory. Deshaney opens the door a little bit by stating that the state could perhaps be responsible if its affirmative actions increase the danger of harm; furthermore, unlike in Castle Rock, the facts in Deshaney did not involve murder (just a severe beating that left a child permanently brain damaged), so the precedent would more easily be argued against in our hypothetical scenario. But I think both precedents present a major hurdle.

[vamedic03]

It just spontaneously came to me.


Having the state protect you from murder is both deeply rooted in our nation's history and implicit in notions of ordered liberty; there's a substantive right to have the state protect you from murder. For a state to fail to offer some protection of your life from your fellow man would thus be unconstitutional.

Reasonable argument. But, since I'm finding this hypo to be entertaining, three follow up questions: (1) Who would have standing to sue (considering standing and ripeness)?; (2) Who would you sue?; (3) What would be your remedies?

[vamedic03]

My argument is to Murder. I never said it would apply to lesser crimes. So, it is not that absurd. Read my posts again, maybe they will make sense to you the second time. This time try not to read them with a preconceived notion that I am wrong, that may help.

There's nothing special about murder. Your common law arguments must rise and fall as a group. You should be able to substitute any crime into this hypothetical.

[emorystud2010]

I didn't read any of this thread, but the correct answer is "No a state can't bc Congress controls interstate commerce and decriminalization/legalization of murder would affect interstate commerce. The law would either be found unconstitutional via the dormant commerce clause or Congress would respond so quickly with a law that preempts the state law that your head would spin. Even if the commerce aspect failed, the necessary and proper clause would save the day."

[ResolutePear]

TL;DR.
--Not a law school student--

Governments need to have a monopoly over violence in theory.

How I see it,

Constitutionally, I see two major issues:

The state would violate the 14th amendment by legalizing murder. It's a deprival of life without due process. I want to say it's a Meyer v. Nebraska deal - but I haven't checked exactly. And likewise, there's also a P&I issue here too, for those belonging to other states "passing through" that state... they have to be guaranteed due process, even if the citizens of a state decided not to enforce their own due process rights(can't abolish them). Sanz v. Roe says that the vistor should be a welcomed stranger, not a hostile one. Kind of a stretch, but I stay firm on the due process claim.


There would also be an Article 4 violation, I suspect. If it's a law, there's no... "violence," therefore the ability for the legislature or the exec to "apply" to the US for assistance against domestic violence is unavailable. And if it is, by some retarded coincidence, well.. there you go. Article 4 provides protection against domestic violence. I have no case for this one though - so it should be taken with a grain of salt.

(AMIDOINITRITE?)

[vanwinkle]

TL;DR.
--Not a law school student--

Governments need to have a monopoly over violence in theory.

How I see it,

Constitutionally, I see two major issues:

The state would violate the 14th amendment by legalizing murder. It's a deprival of life without due process. I want to say it's a Meyer v. Nebraska deal - but I haven't checked exactly. And likewise, there's also a P&I issue here too, for those belonging to other states "passing through" that state... they have to be guaranteed due process, even if the citizens of a state decided not to enforce their own due process rights(can't abolish them). Sanz v. Roe says that the vistor should be a welcomed stranger, not a hostile one. Kind of a stretch, but I stay firm on the due process claim.


There would also be an Article 4 violation, I suspect. If it's a law, there's no... "violence," therefore the ability for the legislature or the exec to "apply" to the US for assistance against domestic violence is unavailable. And if it is, by some retarded coincidence, well.. there you go. Article 4 provides protection against domestic violence. I have no case for this one though - so it should be taken with a grain of salt.

(AMIDOINITRITE?)

About on par with CG.

[ResolutePear]

TL;DR.
--Not a law school student--

Governments need to have a monopoly over violence in theory.

How I see it,

Constitutionally, I see two major issues:

The state would violate the 14th amendment by legalizing murder. It's a deprival of life without due process. I want to say it's a Meyer v. Nebraska deal - but I haven't checked exactly. And likewise, there's also a P&I issue here too, for those belonging to other states "passing through" that state... they have to be guaranteed due process, even if the citizens of a state decided not to enforce their own due process rights(can't abolish them). Sanz v. Roe says that the vistor should be a welcomed stranger, not a hostile one. Kind of a stretch, but I stay firm on the due process claim.


There would also be an Article 4 violation, I suspect. If it's a law, there's no... "violence," therefore the ability for the legislature or the exec to "apply" to the US for assistance against domestic violence is unavailable. And if it is, by some retarded coincidence, well.. there you go. Article 4 provides protection against domestic violence. I have no case for this one though - so it should be taken with a grain of salt.

(AMIDOINITRITE?)

About on par with CG.

Well, now I have to read this thread.

[ResolutePear]

TL;DR.
--Not a law school student--

Governments need to have a monopoly over violence in theory.

How I see it,

Constitutionally, I see two major issues:

The state would violate the 14th amendment by legalizing murder. It's a deprival of life without due process. I want to say it's a Meyer v. Nebraska deal - but I haven't checked exactly. And likewise, there's also a P&I issue here too, for those belonging to other states "passing through" that state... they have to be guaranteed due process, even if the citizens of a state decided not to enforce their own due process rights(can't abolish them). Sanz v. Roe says that the vistor should be a welcomed stranger, not a hostile one. Kind of a stretch, but I stay firm on the due process claim.


There would also be an Article 4 violation, I suspect. If it's a law, there's no... "violence," therefore the ability for the legislature or the exec to "apply" to the US for assistance against domestic violence is unavailable. And if it is, by some retarded coincidence, well.. there you go. Article 4 provides protection against domestic violence. I have no case for this one though - so it should be taken with a grain of salt.

(AMIDOINITRITE?)

About on par with CG.

Crap.

[YourCaptain]

Which power would Congress regulate it with?