Could a state legalize murder? Forum

[UCLAtransfer]

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.

[03121202698008]

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.

Oh, agreed. I said earlier that it would be new law. Given the consequences and history of the CL...I just expect the Court would reach to the result. So yes, a state could but ultimately it would have little effect on the state of murder's legality.

[vamedic03]

which is NOT anywhere in "CONUS" (or whatever that quickly deleted post said, haha).

The feds have concurrent jurisdiction everywhere CONUS. I misread the definition of that statute which says it must be reserved for the US. This statute has been limited to not apply everywhere, but the federal government has concurrent jurisdiction everywhere. And before you dispute...I had federal law enforcement powers for 10 years. I was wrong on §1111 applying but not on where I had authority.

Huh? Federal Courts are courts of limited jurisdiction. The federal government is government of limited power. There is not "concurrent jurisdiction everywhere."

Congress can only enact statutes for which they have an enumerated power. There has to be a jurisdictional hook for every crime.

[vamedic03]

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.

No.

(1) The common law only has the force of the common law because of the receiving statutes enacted immediately following the American Revolution.

(2) There is no magical background common law that could make something a crime after the legislature clearly decriminalized it. Consider this analogy - fornication was a crime at common law. Legislatures have since passed positive legislation repealing the crime. By your reasoning, fornication would continue to be a crime despite the legislature's positive actions. That's not how the common law functions.

[03121202698008]

Huh? Federal Courts are courts of limited jurisdiction. The federal government is government of limited power. There is not "concurrent jurisdiction everywhere."

Congress can only enact statutes for which they have an enumerated power. There has to be a jurisdictional hook for every crime.

The federal courts have jurisdiction over all federal crimes. The federal government can enforce any federal law enacted under one of Congress's powers. There would be concurrent jurisdiction everywhere if Congress were to legally make a law outlawing murder.

The thrust of the previous argument was that Congress could not outlaw murder because they had no jurisdiction to do so. As if they were taking the self-imposed limits in the current statute as meaning that Congress could neer outlaw murder within CONUS. My point was that Congress grants the federal government itself jurisdiction if it legally outlaws something.

You are correct that I am using the term concurrent jurisdiction loosely. It would have been more correct to say they have the possibility of concurrent jurisdiction everywhere in CONUS. If Congress could find a hook for the law, they could make murder a federal crime today and both courts would have concurrent jurisdiction. Just because it is a state crime does not mean it couldn't also be a federal one.

[vanwinkle]

Hmm, interesting.

Note, this is only for 1111. Other homicides, such as killing federal officials, murders by escaped federal prisoners, or federal felony murder, do not have this jurisdictional limitation. It only applies to the general murder statute.

That's because each of those have their own hooks providing Congressional authority. Congress has an interest in protecting its federal officers and the security of federal prisons. Those provide enough relationship to Congress' existing federal powers to be allowable. The jurisdictional hook in section 1111 is a catch-all for everywhere else that the federal government has jurisdiction. The federal government is one of limited, enumerated powers, and the federal courts recognize this by limiting their jurisdiction to cases related to those powers.

In at least some states, the statutes creating the statutory criminal law system explicitly states that the CL that isn't pre-empted by the statutes remain, but repeal of a statute will be understood to repeal that criminal law entirely and the older CL shall not apply. In those states, an act rescinding all murder statutes would mean murder was no longer prosecutable under state law. The federal law could still apply in those states, but only to murders involving federal jurisdiction. Murder that broke no federal laws would be legal.


It would be interesting to see what happened in states without such explicit statutes. The courts could interpret repeal of a murder stature as creating a void they could fill with CL rules, and even announce the CL would evolve to encompass what the statute covered. The state legislature would likely need to be more explicit to avoid that, not only repealing the murder statute but replacing it with a law legalizing murder.

I don't think the federal government could do anything. Due process guarantees you'll be treated fairly if prosecuted, but it doesn't force states to have a process and prosecute people. There's no precedent allowing Congress to force states to adopt criminal laws, and Lopez/Morrison demonstrate they couldn't pick up the slack themselves.

However, I think the USSC might be so appalled at the thought of lawful indiscriminate killing that they would recognize the "economic effects" of such killing and allow Congress to act there. They could find a way to distinguish that from the prior cases without overturning them, since untimely death does tend to have a demonstrable clear economic impact...

[Unitas]

Hmm, interesting.

Note, this is only for 1111. Other homicides, such as killing federal officials, murders by escaped federal prisoners, or federal felony murder, do not have this jurisdictional limitation. It only applies to the general murder statute.

That's because each of those have their own hooks providing Congressional authority. Congress has an interest in protecting its federal officers and the security of federal prisons. Those provide enough relationship to Congress' existing federal powers to be allowable. The jurisdictional hook in section 1111 is a catch-all for everywhere else that the federal government has jurisdiction. The federal government is one of limited, enumerated powers, and the federal courts recognize this by limiting their jurisdiction to cases related to those powers.

In at least some states, the statutes creating the statutory criminal law system explicitly states that the CL that isn't pre-empted by the statutes remain, but repeal of a statute will be understood to repeal that criminal law entirely and the older CL shall not apply. In those states, an act rescinding all murder statutes would mean murder was no longer prosecutable under state law. The federal law could still apply in those states, but only to murders involving federal jurisdiction. Murder that broke no federal laws would be legal.


It would be interesting to see what happened in states without such explicit statutes. The courts could interpret repeal of a murder stature as creating a void they could fill with CL rules, and even announce the CL would evolve to encompass what the statute covered. The state legislature would likely need to be more explicit to avoid that, not only repealing the murder statute but replacing it with a law legalizing murder.

I don't think the federal government could do anything. Due process guarantees you'll be treated fairly if prosecuted, but it doesn't force states to have a process and prosecute people. There's no precedent allowing Congress to force states to adopt criminal laws, and Lopez/Morrison demonstrate they couldn't pick up the slack themselves.

However, I think the USSC might be so appalled at the thought of lawful indiscriminate killing that they would recognize the "economic effects" of such killing and allow Congress to act there. They could find a way to distinguish that from the prior cases without overturning them, since untimely death does tend to have a demonstrable clear economic impact...

Agree with everything written here EXCEPT it should be SCOTUS not USSC. Also state police would also be allowed to charge a murderer with assault and so forth. So even if murder was legal all the crimes below it wouldn't be.

[CG614]

No.

(1) The common law only has the force of the common law because of the receiving statutes enacted immediately following the American Revolution.

(2) There is no magical background common law that could make something a crime after the legislature clearly decriminalized it. Consider this analogy - fornication was a crime at common law. Legislatures have since passed positive legislation repealing the crime. By your reasoning, fornication would continue to be a crime despite the legislature's positive actions. That's not how the common law functions.

This is probably pointless to argue with you, since you seem pretty determined to disagree with me. As, GTL mentioned, the common law still acts as a gap filler, in a sense. It can still hold weight today, if no statute controls the subject. My claim is that murder would still be a crime a common law if a state repealed their statute. Your example is wrong because the common law today would take into account the changing values of society and not hold fornication to be illegal, this would clearly not be the case with murder. You want to look at the law as black and white, however it is not. Our society, especially the judiciary system, would protect the people if some rouge legislative body repealed the murder statute. In fact, that is the main purpose of the governmental structure. So, instead of a formalistic approach, I prefer the realist approach and say it would not be allowed to happen.

I am less clear on whether the state could bring criminal charges under a common law doctrine.

[CG614]

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.)

Agreed. Congress likely could not preempt state laws legalizing murder under current Supreme Court precedent, as murder laws are an exercise of the general police power, which only the states have. The federal government can (and does) regulate murder when a federal interest is implicated -- such as when the murder is of a federal officer or on federal land -- but not otherwise. One could make a Commerce Clause argument to the contrary, but one would probably have to "pile inference upon inference" to connect murder to interstate commerce, such that under Lopez, the argument would fail. The Tenth Amendment's reservation of non-enumerated powers to the States and the people reinforces this point.

Leaving federal preemption aside for a moment, it is also one hundred percent clear that the common law poses no barrier to a state statute legalizing murder. As I indicated above, the common law is not some all-present body of law which must be overcome by a specific interest or power any time a state wishes to depart from its terms. Instead, the common law is a body of unwritten, interstitial law which states are free to recognize, modify, codify, or ignore. Were a state to pass a law stating that murder is legal, no court would ever in a million years scrutinize that law to see whether it was a valid derogation from the common law rule. It is no answer to say that murder was illegal at common law, because the common law has no force when a state chooses not to recognize it, or when a state intentionally departs from it.

That said, a court might, however, inquire whether the law was somehow invalid under the state or federal constitutions. And on that point, I am still thinking through whether the Fourteenth Amendment or some other provision provides a right not to be legally killed by others. Current law makes clear that we do not enjoy a legal right to any particular level of police protection, see Castle Rock v. Gonzales, 545 U.S. 748 (2005), so I am not sure that angle would really work. Substantive due process premised on a right of bodily integrity maybe -- but expansions along those lines are heavily disfavored by the current Court.

EDIT: vanwinkle and vamedic nailed it.

My argument was that a state could not make murder legal under the police power, as it has been interpreted to be used for the general welfare of the people. The state could only repeal a murder statute. In that situation, the Common Law would and could step in to fill the "gap."

[3ThrowAway99]

no

+1

[vanwinkle]

My argument was that a state could not make murder legal under the police power, as it has been interpreted to be used for the general welfare of the people. The state could only repeal a murder statute. In that situation, the Common Law would and could step in to fill the "gap."

Under what authority would you expect a court to do this, if the law explicitly legalized murder? There is no "police power" granted to the courts. It's granted to the states, but the states (through the legislature) choose where and how to exercise it. Courts do not simply do as they please regardless of the actions of the state legislature. They might gap-fill if the legislature made a repeal and left an opening about what that meant, but if a new (or existing) law explicitly stated that murder was no longer illegal, then there's no gap for them to fill.

Courts no longer create new common law crimes, and they defer to legislatures as the decision-making authority on what should and should not be criminalized. If the legislature acted in a way that made murder legal, the state courts might be appalled, but it would be a large deviation from the last few decades or more if they were to start overruling the legislature and declaring new crimes all on their own.

[CG614]

My argument was that a state could not make murder legal under the police power, as it has been interpreted to be used for the general welfare of the people. The state could only repeal a murder statute. In that situation, the Common Law would and could step in to fill the "gap."

Under what authority would you expect a court to do this, if the law explicitly legalized murder? There is no "police power" granted to the courts. It's granted to the states, but the states (through the legislature) choose where and how to exercise it. Courts do not simply do as they please regardless of the actions of the state legislature. They might gap-fill if the legislature made a repeal and left an opening about what that meant, but if a new (or existing) law explicitly stated that murder was no longer illegal, then there's no gap for them to fill.

Courts no longer create new common law crimes, and they defer to legislatures as the decision-making authority on what should and should not be criminalized. If the legislature acted in a way that made murder legal, the state courts might be appalled, but it would be a large deviation from the last few decades or more if they were to start overruling the legislature and declaring new crimes all on their own.

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.

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.

[3ThrowAway99]

All brilliant hypothetical arguments aside, I feel certain that if a state passed a law today saying that people could murder one another, and the citizens of that state started murdering each other with impunity, the Federal government would (very rightfully) find a way to preempt the law.

There is no question that such a state law could irreparably interfere with the union of the states, interfering not only with commerce, but also with basic national security interests.

[vanwinkle]

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?

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.

[vanwinkle]

All brilliant hypothetical arguments aside, I feel certain that if a state passed a law today saying that people could murder one another, and the citizens of that state started murdering each other with impunity, the Federal government would (very rightfully) find a way to preempt the law.

This was essentially my point about the Supreme Court relying on the large economic impacts of untimely death to allow the federal government to act here. They would probably limit their ruling to states which neglected to enforce the police power to prevent untimely death themselves, so that it didn't grow the Commerce Clause or what Congress could do too substantially.

[Unitas]

My argument was that a state could not make murder legal under the police power, as it has been interpreted to be used for the general welfare of the people. The state could only repeal a murder statute. In that situation, the Common Law would and could step in to fill the "gap."

Under what authority would you expect a court to do this, if the law explicitly legalized murder? There is no "police power" granted to the courts. It's granted to the states, but the states (through the legislature) choose where and how to exercise it. Courts do not simply do as they please regardless of the actions of the state legislature. They might gap-fill if the legislature made a repeal and left an opening about what that meant, but if a new (or existing) law explicitly stated that murder was no longer illegal, then there's no gap for them to fill.

Courts no longer create new common law crimes, and they defer to legislatures as the decision-making authority on what should and should not be criminalized. If the legislature acted in a way that made murder legal, the state courts might be appalled, but it would be a large deviation from the last few decades or more if they were to start overruling the legislature and declaring new crimes all on their own.

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.

Once a statute is used to displace common law the common law is wiped away. It doesn't come back instantly with the repeal of the statute that displaced it.

An example: Common law crime in SC for women to drive alone. SC enacts a statute saying women can't drive alone. In 60's repeals that statute. The old common law would not come back into effect - the legislature has spoken and repealed it.

Is this correct Vanwinkle?

[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

[CG614]

My argument was that a state could not make murder legal under the police power, as it has been interpreted to be used for the general welfare of the people. The state could only repeal a murder statute. In that situation, the Common Law would and could step in to fill the "gap."

Under what authority would you expect a court to do this, if the law explicitly legalized murder? There is no "police power" granted to the courts. It's granted to the states, but the states (through the legislature) choose where and how to exercise it. Courts do not simply do as they please regardless of the actions of the state legislature. They might gap-fill if the legislature made a repeal and left an opening about what that meant, but if a new (or existing) law explicitly stated that murder was no longer illegal, then there's no gap for them to fill.

Courts no longer create new common law crimes, and they defer to legislatures as the decision-making authority on what should and should not be criminalized. If the legislature acted in a way that made murder legal, the state courts might be appalled, but it would be a large deviation from the last few decades or more if they were to start overruling the legislature and declaring new crimes all on their own.

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.

Once a statute is used to displace common law the common law is wiped away. It doesn't come back instantly with the repeal of the statute that displaced it.

An example: Common law crime in SC for women to drive alone. SC enacts a statute saying women can't drive alone. In 60's repeals that statute. The old common law would not come back into effect - the legislature has spoken and repealed it.

Is this correct Vanwinkle?

You are correct. But do you really think the courts would hesitate to call upon the common law crime of murder in such an instance? I am done arguing.

[leobowski]

Yup, it's called the death penalty.

[CG614]

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.

[Kohinoor]

Yeah but Congress would just regulate murder using commerce clause.

[vanwinkle]

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

I know what the police power is. You still haven't explained how it requires states to have certain rules. Repealing a statute doesn't involve an "unconstitutional use" of any power; it involves the state declining to continue using that power. There's no such thing as an unconstitutional failure to use a power, generally speaking. States have many powers they do not use, and the flexibility to choose which powers they will and will not use, as long as it doesn't conflict with any other law.

Perhaps there's some reason that a state couldn't do this, but it's absurd to say that they couldn't do it because it would be an unconstitutional use of the police power. The police power doesn't require states to criminalize anything specifically, it just gives them the power to do it.

I believe the federal government would step in if a state really chose to stop exercising this power in this way, but I don't see anything prohibiting the states from doing so.

[rupert.pupkin]

Reply with quote

A ruling reinstating common law murder after the legislature repealed the statute would probably be struck down as a due process violation for lack of notice. See, e.g. Rogers v. Tennessee 532 U.S. 451 (2001). Further, given the line up in that case (SOC, RBG,Kennedy, Rehnquist, Souter)/(Stevens, Thomas, Scalia, Breyer) it's not totally outlandish to think that the current court might apply the ex post facto clause against state courts.

[vanwinkle]

A ruling reinstating common law murder after the legislature repealed the statute would probably be struck down as a due process violation for lack of notice. See, e.g. Rogers v. Tennessee 532 U.S. 451 (2001).

This really, really depends on what the legislature said in its act. If it said it was simply repealing the statute, and there was no explicit mandate to no longer follow the common law rule after a statutory repeal, the court could interpret that to mean that the common law still applied to murder and enforce it against someone, saying they had adequate notice that murder was wrong and punishable from 1) the fact that murder had been illegal for so long, 2) murder was still illegal across the country, and 3) the repeal did not specifically say that it was Now Legal to kill people. Rogers v. Tennessee actually supports this outcome, or at least the majority in that case would have. Scalia's dissent suggests that he would find such a thing a due process violation, and I'm sure he could garner additional support for that if he really wanted to.

[CG614]

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

I know what the police power is. You still haven't explained how it requires states to have certain rules. Repealing a statute doesn't involve an "unconstitutional use" of any power; it involves the state declining to continue using that power. There's no such thing as an unconstitutional failure to use a power, generally speaking. States have many powers they do not use, and the flexibility to choose which powers they will and will not use, as long as it doesn't conflict with any other law.

Perhaps there's some reason that a state couldn't do this, but it's absurd to say that they couldn't do it because it would be an unconstitutional use of the police power. The police power doesn't require states to criminalize anything specifically, it just gives them the power to do it.

I believe the federal government would step in if a state really chose to stop exercising this power in this way, but I don't see anything prohibiting the states from doing so.

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."