Assistant Prosecuting Attorney, Lafayette County, Missouri. J.D. Yale 1991. The author would like to thank the people with whom he worked for two years at the Missouri Supreme Court, especially Judge Duane Benton, for numerous discussions during the early stage of drafting about this Article and the ideas contained within it. The author would also like to thank his former professors at Yale for comments and suggestions on the general and specific ideas in this Article. Finally, the author would like to thank the Prosecuting Attorney of Lafayette County, Mr. Page Bellamy, for his friendship and support during the time they both worked with the Public Defender's Office in Sedalia, Missouri, and in their current positions.

1. The Federalist Nos. 15, 16, at 108-18 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

2. Cf. The Federalist No. 51, at 323-25 (James Madison).

3. See, e.g., Act of June 24, 1988, Pub. L. No. 100-346, 102 Stat. 644 (codified at 18 U.S.C. § 247 (1994)) (covering desecration of religious property); Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1971, 100 Stat. 3207, 3207-59 (codified at 18 U.S.C. §§ 341-43 (1994)) (covering operation of a common carrier while under the influence of drugs or alcohol); Counterfeit Access Device and Computer Fraud and Abuse Act of 1984, Pub. L. No. 98-473, § 2102(a), 98 Stat. 2190 (codified at 18 U.S.C. § 1030 (1994)) (covering computer fraud and related activities); Federal Anti-Tampering Act, Pub. L. No. 98-127, 97 Stat. 831 (1983)(codified at 18 U.S.C. § 1365 (1994)) (covering tampering with consumer products); Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 1011(a), 98 Stat. 2141 (codified at 18 U.S.C. § 1366 (1994)) (covering destruction of energy facilities); Money Laundering Control Act of 1986, Pub. L. No. 99-570, § 1352, 100 Stat. 3207-18, 3207-21 (codified at 18 U.S.C. § 1957 (1994)) (covering engaging in a monetary transaction involving criminally-derived property); Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 1002(a), 98 Stat. 2137 (codified at 18 U.S.C. § 1959 (1994))(covering violent crimes in aid of racketeering activity).

Each of these new federal crimes, created during a decade when the announced policy of the executive branch was to return responsibility to the states, covers a behavior that either was already covered by state law or could have been covered by state law, if a state legislature desired to criminalize such behavior.

4. While by no means an exhaustive list, some of the major rules and mechanisms that apply to interjurisdictional legal issues are those governing conflict of laws (including preemption), ancillary and pendant jurisdiction, collateral estoppel, and res judicata.

The conflict of laws regime in the various states, imperfect as any attempt at uniformity has been, plus the rules governing federal preemption of state law, allows state and federal courts to try cases in a "convenient" forum, even though the applicable law is not the law of the forum. An example of this would be if a state court in Texas tries a case in which some issues are governed by New York law, others are governed by Delaware law, and still others are governed by federal law. See generally Fleming James, Jr. & Geoffrey C. Hazzard, Jr., Civil Procedure §§ 2.36, 2.37 (3d ed. 1985). Likewise, diversity jurisdiction and the applicable rules allow federal courts to try state law claims. See generally id. §§ 2.5, 2.35, at 54-56, 117-22. The rules governing pendant and ancillary jurisdiction allow federal courts to unify, if desired by the parties, all claims arising out of a single transaction. See generally id. § 2.7, at 61-63. Many state courts have similar rules. In short, presuming a court has jurisdiction to hear a case involving part of a transaction, it is likely all legal issues concerning civil claims about that transaction can be resolved in one court.

The rules governing collateral estoppel and res judicata, when combined with the requirement that states give "full faith and credit" to judgments in other states, U.S. Const. art. IV, § 1, allow one court to settle those aspects of a case that might arise in later cases. See generally James & Hazzard, supra, at 585-652. Thus, in civil cases, regardless of differences between the laws and procedures of the various states and the federal government, any court that has venue or jurisdiction over part of the case can resolve the legal differences and can issue a judgment governing the entirety of the case, with that judgment binding all courts in this country. In a criminal case, however, a case only binds courts in the same jurisdiction and, if the case affects multiple jurisdictions, each part of the case must be tried in those separate jurisdictions rather than combining the case into one court.

5. Cf. Terrence M. Messonnier, A Neo-Federalist Interpretation of the Tenth Amendment, 25 Akron L. Rev. 213, 245-47 (1991).

6. See infra notes 318-22 and accompanying text.

7. See infra notes 239-322 and accompanying text.

8. See infra notes 13-16 and accompanying text.

9. For example, in 1989, depending upon which statistic is used, states had custody of 11 to 15 individuals for every 1 individual under federal custody. Given that, in both 1980 and 1987, approximately half of those convicted in federal courts were imprisoned, and in 1989, two-thirds were imprisoned, one can extrapolate similar or higher proportions under the jurisdiction of state authorities because, when states are included, the number on probation is 4 times the number in prison. Thus, at least 90% of all criminal cases occur in state courts. See U.S. Dep't of Commerce, Economics & Statistics Admin., Bureau of the Census, Statistical Abstract of the U.S. 190-95 (Tbl. Nos. 326, 327, 334, 337 & 338)(1991).

10. As an aside, it is important to note that this fact is directly related to the growing number of crimes and individuals imprisoned at all levels. However, despite holding relatively constant at a range between 20,000 and 25,000 inmates between 1960 and 1982, the number of inmates in federal prisons practically doubled during the 1980s, with over 43,000 prisoners in the federal system as of 1989. See id. at 193 (Tbl. No. 334).

11. As anecdotal evidence, I offer my own experience as a law student intern, and as a lawyer working in state criminal law as a public defender and then as an assistant prosecutor. As a law student intern, I participated in a clinical program working with prisoners, mostly at the Federal Correctional Institution at Danbury. Out of the approximately 15-20 prisoners in whose representation I assisted, each was incarcerated for an offense punishable under both state and federal law. Most of these individuals were convicted of selling drugs, or in connection with stolen property, or for some type of fraud.

As a public defender, about one-third of my trials involved drug offenses or bank robbery in a rural area where there were few drug offenses or violent crimes. As a prosecutor, a substantial portion of my office's case load involves drug cases, and we have had several cases involving carjacking, and interstate flight.

Based on this experience, it is clear there is a substantial overlap between state laws and federal laws. Most federal prisoners have committed offenses that could have been prosecuted as state offenses, and a large number of state prisoners perhaps even a majority have committed offenses which could have been prosecuted as federal offenses.

12. For example, between 1983 and 1990, each Congress saw several versions of a major crime package. Each bill included far-reaching provisions that would have toughened federal criminal law. Ultimately, after two years of deadlock, toward the end of the second session, a much narrower statute was enacted that includes only some of the proposals. See Crime Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789; Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181; Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207; Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, tit. II, 98 Stat. 1837, 1976-2199. For further details, see Congressional Quarterly, Almanac 101st Cong., 2d. Sess 1990, at 486-95; Congressional Quarterly, Almanac 100th Cong., 2d. Sess. 1988, at 85-111; Congressional Quarterly, Almanac 99th Cong., 2d. Sess. 1986, at 92-106; Congressional Quarterly, Almanac 98th Cong., 2d. Sess. 1984, at 215-24. Among the highlights of these acts were provisions: 1) adding anabolic steroids to the list of controlled substances, Pub. L. No. 100-690, §§ 1901-07; 2) creating a federal offense for endangering human life while illegally manufacturing a controlled substance, Pub. L. No. 100-690, § 6301, 102 Stat. 4370; 3) creating federal offenses related to child pornography, Pub. L. No. 100-690, §§ 7501-26, 102 Stat. 4485; 4) creating a federal offense for the use of juveniles in drug operations, Pub. L. No. 99-570, § 1102, 100 Stat. 3209-10;
5) creating a federal offense for money laundering, Pub. L. No. 99-570, § 1352, 100 Stat. 3207-18; 6) criminalizing the sale of drug paraphernalia,
Pub. L. No. 99-570, § 1822, 100 Stat. 3207-51; 7) criminalizing the operation of a common carrier under the influence of alcohol or drugs, Pub. L. No. 99-570, § 1971, 100 Stat. 3207-59; 8) criminalizing the sale of drugs near schools, Pub. L. No. 98-473, tit. II, § 503(a); 9) federalizing several "crimes of violence," Pub. L. No. 98-473, tit. II, §§ 1001-05; 10) federalizing destruction of energy facilities, Pub. L. No. 98-473, tit. II, § 1365; 11) federalizing bank fraud, Pub. L. No. 98-473, tit. II, § 1108; 12) federalizing credit card fraud, Pub. L. No. 98-473, tit. II, § 1602; and 13) criminalizing computer fraud, Pub. L. No. 98-473, tit. II, § 2102. The ultimate question with provisions such as these is not whether such behaviors should be uniformly criminalized, but rather whether the federal government has the authority to pass such statutes, and which level of government should be regulating these types of behaviors. For now, the important point is that all the offenses in these statutes either are or could be covered by state statutes.

13. Andrew Malcolm, States' Prisons Continue to Bulge, Overwhelming Efforts at Reform, N.Y. Times, May 20, 1990, at 1; Roberto Suro, As Inmates Are Freed, Houston Feels Insecure, N.Y. Times, Oct. 1, 1990, at A16; cf. Stephen Labaton, Glutted Probation System Puts Communities in Peril, N.Y. Times, June 19, 1990, at A1 (more hard-core offenders receiving probation); Sarah Yall, Albany Plan Would Ease Prisoner Rise, N.Y. Times, Mar. 13, 1992, at B1 (New York at 118% of capacity).

14. Linda Greenhouse, Ease Load on Courts, Rehnquist Urges, N.Y. Times, Jan. 1, 1992, at A8 (drug cases were 56% of all federal appellate cases); Michael de Courcy Hinds, Bush Aides Push State Gun Cases into U.S. Courts, N.Y. Times, May 17, 1991, at A1; see also Ralph Blumenthal, Officials Give Mixed Review to D'Amato Gun-Crime Plan, N.Y. Times, July 24, 1992, at B3 (discussing impact of proposals for new federal offenses on caseload).

15. Steve Y. Koh, Note, Reestablishing the Federal Judge's Role in Sentencing, 101 Yale L.J. 1109, 1130 (1992).

16. For example, the Koh Note compares the appropriateness of similar penalties for an immigration violation in Texas and Massachussets. Id. The underlying national policy of controlling the flow of immigration is the same in both districts. The difference between the districts is in the percentage of individuals from various ethnic backgrounds in the two districts, and in the intensity of effort in the two districts to find illegal immigrants. The fact that an illegal immigrant has reached an area where the search is less intense does not lessen the need for nation-wide deterrence of illegal immigration. It should be noted, however, that for other crimes this criticism (that the problem is not as serious in different places) may be appropriate.

17. By necessity, any "short" summary of the history of anything distorts reality. As such, a description of what distortion is conscious may be useful. First, being human, I undoubtedly missed several crucial statutes. Second, for the most part, amendments and further subdivisions of previously existing crimes have been ignored as irrelevant to the history of the expansion of federal criminal law. Third, more emphasis was put on the early criminal law than later criminal law. Similarly, more emphasis was put on an area when federal involvement in that area was new. Fourth, most of the emphasis was put on substantive law rather than procedural law. Finally, this history only extends through the 102d Congress.

18. See, e.g., U.S. Const. art. I, § 8, cl. 10; U.S. Const. art. III, § 3.

19. U.S. Const. art. I, § 8, cl. 18.

20. Of course, one can argue about how small this jurisdiction really is. For a discussion of the limits of using the Necessary and Proper Clause to expand federal jurisdiction, see infra notes 158-60 and accompanying text.

21. Cf. The Federalist Nos. 42-44 (James Madison).

22. See generally 2A, 2B, & 3 Norman J. Singer, Sutherland Statutory Construction (5th ed. 1991). Particularly important to the concept of interpretation of the Constitution is the canon of "expressio unius est exclusio alterius." Under this canon, the listing of particular powers granted to the federal government implies that other powers were not given (except to the extent necessary and proper to the implementation of the powers given). See 2A Singer, supra at 216-17.

23. 11 U.S. (7 Cranch) 32 (1812).

24. Id. at 34.

25. Akhil R. Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1047-49 (1988)[hereinafter Philadelphia Revisited]; Akhil R. Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1446-48 (1987) [hereinafter Of Sovereignty]; Messonnier, supra note 5, at 225-27.

26. Not only did many, if not all, of the original states enact so-called "reception" statutes, but so did many of the subsequent states. These statutes typically adopted the common law of England as it existed at a particular, often historically significant, point in time, with that point varying from state to state some statutes did not refer to any particular date. See, e.g., Ala. Code § 1-3-1 (1975) (common law of England, but no particular time); Cal. Civ. Code Ann § 22.2 (West 1982) (common law of England, but no particular time); Ga. Code Ann. § 1-1-10(c)(1)(1990)(common law of England May 14, 1776); Md. Const. Declaration of Rights art. B (common law of England July 4, 1776); Mo. Stat. Ann § 1.010 (Vernon 1969) (common law of England 4th year of reign of James I, approximately 1607). Congress has never enacted a reception statute.

27. See Bruce A. Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L.J. 453, 527-44 (1989) [hereinafter Constitutional Politics]; Messonnier, supra note 5, at 242-47.

28. Act of July 31, 1789, ch. 5, § 12, 1 Stat. 29, 39.

29. Id. § 24, at 43.

30. Id. § 22, at 42; § 35, at 46.

31. Act of April 30, 1790, ch. 9, 1 Stat. 112.

32. Treason is the only crime actually created and defined by the text of the Constitution. U.S. Const. art. III, § 3.

33. See generally Act of April 30, 1790, ch. 9, 1 Stat. 112.

34. Id. §§ 19-20, at 116; §§ 29-32, at 118-19.

35. Act of February 12, 1793, ch. 7, 1 Stat. 302.

36. Id. § 1, at 302.

37. Id. § 2, at 302. There was an equivalent provision regarding the rescue of slaves. Id. § 4, at 305. These provisions differed in that imprisonment was part of the penalty only for helping a criminal fugitive and not for helping a fugitive slave.

38. Act of February 20, 1792, ch. 7, §§ 5, 11, 14, 16, 1 Stat. 232, 234, 235, 236; Act of May 8, 1794, ch. 23, §§ 5, 14, 16, 20, 1 Stat. 354 ,358, 360, 362.

39. Act of August 4, 1790, ch. 35, 1 Stat. 145; Act of March 3, 1791, ch. 15, 1 Stat. 199; Act of December 31, 1792, ch. 1, 1 Stat. 287; Act of July 6, 1797, ch. 11, §§ 12, 13, 14, 17, 1 Stat. 527, 530, 531, 532.

40. Act of June 5, 1794, ch. 50, 1 Stat. 381; Act of June 14, 1797, ch. 1, 1 Stat. 520.

41. Act of July 22, 1790, ch. 33, §§ 3, 4, 5, 1 Stat. 137,138; Act of May 19, 1796, ch. 30, 1 Stat. 469; Act of March 3, 1799, ch. 46, 1 Stat. 743; Act of January 14, 1800, ch. 5, 2 Stat. 6.

42. Chs. 58, 66, 74, 1 Stat. 570, 577, 596 (1798).

43. Id. Ch. 74, § 2. The remainder of the act deals mostly with conspiracy to overthrow the government, the ability to exclude aliens engaged in treason, and the ability to deport similar aliens.

44. Act of March 30, 1802, ch. 12, 2 Stat. 138; Act of March 3, 1804, ch. 20, § 2, 2 Stat. 262; Act of February 28, 1806, ch. 9, 2 Stat. 351; Act of April 18, 1806, ch. 29, §§ 2, 3, 4, 5, 2 Stat. 379, 380; Act of January 9, 1808, ch. 8, § 3, 2 Stat. 453; Act of January 9, 1809, ch. 5, 2 Stat. 506; Act of March 1, 1809, ch. 24, 2 Stat. 528.

45. Act of February 28, 1803, ch. 9, §§ 7, 8, 2 Stat. 203, 204, 205; Act of April 21, 1806, ch. 48, § 6, 2 Stat. 402, 403.

46. Act of March 2, 1803, ch. 18, 2 Stat. 209; Act of April 21, 1806, ch. 49, 2 Stat. 404; Act of February 24, 1807, ch. 20, 2 Stat. 423.

47. Act of March 26, 1804, ch. 40, § 3, 2 Stat. 290 (establishing a statute of limitations for certain crimes); Act of March 3, 1805, ch. 41, 2 Stat. 339 (seizure of fugitives from foreign ships in United States ports).

48. U.S. Const. art. I, § 9, cl. 1.

49. See, e.g., Act of February 28, 1803, ch. 10, 2 Stat. 205.

50. Act of March 2, 1807, ch. 22, 2 Stat. 426.

51. See, e.g., Act of January 11, 1812, ch. 14, § 17, 2 Stat. 671, 673 (solicitation of desertion); Act of March 3, 1817, ch. 58, 3 Stat. 370 (requiring neutrality in foreign wars by United States citizens); Act of April 20, 1818, ch. 88, 3 Stat. 447 (further requiring neutrality).

52. Act of March 3, 1825, ch. 65, 4 Stat. 115. Perhaps, the citation says as much about the Framers as the content. After 36 years, the statutes of this country barely filled three, one-part volumes of Statutes at Large. Today, each year requires a multi-part volume. Admittedly, there are differences in the complexities facing the federal government between 1820 and 1990, and appropriations bills are much longer; but, it is clear the Framers saw a relatively small role for the federal government compared to the states, which cannot be said for the individuals in Congress and the White House today.

53. See, e.g., id. §§ 1, 2, 3.

54. See, e.g., id. §§ 4, 6, 7, 8, 9.

55. See, e.g., id. §§ 12, 16, 17, 18, 19, 20, 21.

56. Of course, there had been some changes in federal law with the creation of new crimes, the modification of the penalties for old crimes, and some alteration of the rules of procedure. See, e.g., Act of March 3, 1835, ch. 40, 4 Stat. 775 (criminalizing mutiny on the high seas); Act of September 18, 1850, ch. 60, 9 Stat. 462 (altering procedure on the return of fugitive slaves). The subject areas, however, remained the same.

57. See, e.g., Act of July 31, 1861, ch. 23, 12 Stat. 284 (conspiracy to oppose the authority of the United States); Act of August 6, 1861, ch. 60, 12 Stat. 319 (forfeiture of property used in the "insurrection"); Act of July 16, 1862, ch. 190, 12 Stat. 589 (further punishing treason and rebellion); Act of February 25, 1863, ch. 60, 12 Stat. 696 (criminalizing correspondence with officials of the Confederacy); Act of March 3, 1863, ch. 81, 12 Stat. 755 (authorizing suspension of writ of habeas corpus).

58. Act of June 28, 1864, ch. 166, 13 Stat. 200.

59. See, e.g., Act of April 9, 1866, ch. 31, § 2, 14 Stat. 27; Act of May 21, 1866, ch. 86, 14 Stat. 50; Act of May 31, 1870, ch. 114, 16 Stat. 140; Act of April 20, 1871, ch. 22, 17 Stat. 13.

60. See United States v. Harris, 106 U.S. 629 (1883); United States v. Cruikshank, 92 U.S. 542 (1875); United States v. Reese, 92 U.S. 214 (1875).

61. Revised Statutes of the U.S. of 1873, at 1037-81.

62. Id.

63. See id. at 1029-31.

64. As noted earlier, supra notes 28-54 and accompanying text, the early Congresses had used the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, to authorize criminal laws enforcing the regulation of commerce with foreign countries and Native Americans.

65. Cruelty to Animal Act, ch. 252, 17 Stat. 584 (1873) (regulating treatment of animals while in interstate commerce); Bureau of Animal Industry Act, ch. 60, §§ 6, 7, 23 Stat. 31, 32 (1884) (prohibiting shipment of diseases livestock in interstate commerce).

66. Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887).

67. Antitrust Act of 1890, ch. 647, §§ 1, 2, 26 Stat. 209.

68. Lottery Act of 1895, ch. 191, 28 Stat. 963 (exclusion of lotteries and materials connected with lotteries entirely from interstate trade); Obscenity Act of 1897, ch. 172, 29 Stat. 512 (barring obscene materials from being shipped in interstate trade on "common carriers").

69. Act of June 29, 1906, ch. 3591, 34 Stat. 584 (expanded definition of common carrier to include pipelines); Act of March 4, 1907, ch. 2939, 34 Stat. 1415 (limited working hours of employees of common carriers in interstate commerce); Explosives Transportation Act of 1908, ch. 234, 35 Stat. 554 (barred common carriers from shipping explosives in interstate commerce on the same trip as passengers).

70. Food and Drug Act of 1902, ch. 1357, 32 Stat. 632 (required accurate labeling of state of origin for goods in interstate commerce); Pure Food Act of 1906, ch. 3915, 34 Stat. 768 (prohibited sale of adulterated, misbranded, or dangerous foods or drugs in interstate commerce); Opium Act of 1909, ch. 100, 35 Stat. 614 (barred importing opium or further distribution of imported opium except for medical uses).

71. Act of June 28, 1906, ch. 3583, 34 Stat. 551.

72. Id.

73. Criminal Code of 1909, ch. 321, 35 Stat. 1088.

74. As is still true today, some criminal provision were categorized as being part of other codes dealing with the subject of regulation.

75. Criminal Code of 1909.

76. These 13 headings represent the 6 chapters from the criminal law title of the Revised Statutes of 1873, some areas scattered in that code, plus some division of some of the original chapters into new chapters.

77. Criminal Code of 1909.

78. See, e.g., Insecticide Act, ch. 191, 36 Stat. 331 (1910) (regulating adulterated or misbranded insecticides in interstate commerce); Act of May 6, 1910, ch. 208, 36 Stat. 350 (requiring common carriers to file accident reports); Act of July 31, 1912, ch. 263, 37 Stat. 240 (barring films of prize fights from interstate commerce).

79. Ch. 1, 38 Stat. 785.

80. Act of May 26, 1922, ch. 202, 42 Stat. 596 (previously limited to opium).

81. Child Labor Act of 1916, ch. 432, 39 Stat. 675.

82. Hammer v. Dagenhart, 247 U.S. 251 (1918) (5-4 opinion with dissenters noting that regulation only directly regulated interstate commerce). It is worth noting that none of the justices directly argued the federal government had the power to directly regulate manufacturing.

83. Radio Communications Act of 1912, ch. 287, 37 Stat. 302.

84. Id.

85. Act of February 13, 1913, ch. 50, 37 Stat. 670 (prohibited stealing from trains in interstate commerce or transporting items stolen from such trains across state lines); National Motor Vehicle Theft Act, ch. 89, 41 Stat. 324 (1919) (punishing transportation of stolen cars in interstate or foreign commerce).

86. Lindbergh Act, ch. 271, 47 Stat. 326 (1932).

87. Ch. 85, 41Stat. 305 (1919).

88. Ch. 395, 36 Stat. 825 (1910).

89. Id.

90. Id.

91. Codification Act, ch. 712, 44-1 Stat. 1 (1926).

92. Id.

93. Id. at 459-536.

94. Ackerman, Constitutional Politics, supra note 27, at 510-15; Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale L.J. 1013, 1051-70 (1984) [hereinafter Storrs Lectures]; Messonnier, supra note 5, at 242 nn.187-88.

95. Ch. 38, 48 Stat. 74.

96. Id. § 5, at 77.

97. Id. § 17, at 84.

98. Ch. 404, 48 Stat. 881.

99. Id. § 9, at 889.

100. Federal Bank Robbery Act, ch. 304, 48 Stat. 783 (1934). Uniquely, at least for 1934, this act included a provision making federal jurisdiction over this crime non-exclusive.

101. Federal Anti-racketeering Act, ch. 569, 48 Stat. 979 (1934).

102. Act of May 18, 1934, ch. 299, 48 Stat. 780.

103. Extortion Act (Interstate Commerce), ch. 300, 48 Stat. 781 (1934).

104. Federal Flight Act, ch. 302, 48 Stat. 782 (1934).

105. National Stolen Property Act, ch. 333, 48 Stat. 794 (1934).

106. See, e.g., Fair Labor Standards Act of 1938, ch. 676, §§ 15, 16, 52 Stat. 1060, 1068, 1069 (1938). The "affecting commerce" language was used to reach employees solely engaged in production previously constitutionally prohibited. See Hammer v. Dagenhart, 247 U.S. 251 (1918). Under this original version of the Fair Labor Standards Act, federal jurisdiction still required that the goods be shipped in interstate commerce.

107. See, e.g., Emergency Price Control Act of 1942, ch. 26, §§ 4, 205, 56 Stat. 23, 28, 33.

108. Train Wreck Act, ch. 286, 54 Stat. 255 (1940) (prohibited damaging trains used in interstate commerce); Federal Dentures Act, ch. 823, 56 Stat. 1087 (1942) (criminalized using the mail or interstate commerce to violate state laws regulating dentures).

109. Act of January 13, 1940, ch. 1, 54 Stat. 13.

110. See, e.g., Prostitution Prohibition Act of 1941, ch. 287, 55 Stat. 583. This act criminalized acts of prostitution occurring "near" military bases. Obviously, the federal government has the authority to regulate the behavior of military personnel and acts occurring on federal property, such as military bases. This act went further, regulating the acts of civilians who were neither in the territories, on federal property, nor engaged in an activity traditionally subject to federal regulation. Perhaps, the Necessary and Proper Clause could be used to extend the power over federal property to neighboring areas, but such an extension seems to be a little far-fetched.

111. Criminal Code of 1948, ch. 645, 62 Stat. 683.

112. Compare id. at 683-84 with Title 18 U.S.C. (1994) (labels of parts and labels of chapters within Part I).

113. Criminal Code of 1948, 62 Stat. at 683.

114. Id. at 684-813. Of course, some of these sections merely defined terms, but the number of these definitional sections was relatively small.

115. See, e.g., 18 U.S.C. § 656 (1994) (embezzlement by bank official); 18 U.S.C. § 2113 (1994) (bank robbery).

116. See, e.g., 18 U.S.C. § 659 (1994) (theft from vehicle engaged in interstate commerce); 18 U.S.C. § 660 (1994) (embezzlement of funds of common carrier derived from interstate commerce); 18 U.S.C. § 1951 (1994) (interference with interstate commerce by threats or violence); 18 U.S.C. § 1992 (1994) (wrecking trains); 18 U.S.C. § 2117 (1994) (theft from certain vehicles engaged in interstate commerce).

117. Narcotic Control Act of 1956, ch. 629, § 201, 70 Stat. 567, 572 (apparently limited the use of heroin to research purposes); Narcotic Manufacturers Act of 1960, Pub. L. No. 86-429, 74 Stat. 55 (required registration of manufacturers of narcotic drugs); Drug Abuse Control Amendments of 1965, Pub. L. No. 89-74, 79 Stat. 226 (dealt with illicit traffic in depressants and stimulants; required registration of manufacturers of these drugs).

118. Gambling Devices Transportation Act, ch. 1194, 64 Stat. 1134 (1951) (covered shipments of gambling devices in interstate commerce, enforcing state laws on gambling); Gambling Information Act, Pub. L. No. 87-216, 75 Stat. 491 (1961) (covered transmission of wagering information in interstate commerce, enforcing state laws); Act of September 13, 1961, Pub. L. No. 87-218, 75 Stat. 492 (covered transportation of wagering paraphernalia in interstate commerce); Gambling Devices Act of 1962, Pub. L. No. 87-840, 76 Stat. 1075 (further regulated gambling devices; included registration of manufacturers and repair persons and record-keeping); Act of June 6, 1964, Pub. L. No. 88-316, 78 Stat. 203 (bribery in sports contests).

119. Communications Act Amendments of 1952, ch. 879, § 18, 66 Stat. 711, 722 (wire fraud); Act of July 9, 1956, ch. 519, 70 Stat. 507 (federalizing swindles involving interstate commerce or travel).

120. Civil Rights Act of 1960, Pub. L. No. 86-449, §§ 201-03, 74 Stat. 86, 87. (interstate flight after damaging building or interstate transportation of devices with intent to damage building); Racketeer Travel Act, Pub. L. No. 87-228, 75 Stat. 498 (1961) (covering travel or transportation in aid of racketeering).

121. Act of October 9, 1962, Pub. L. No. 87-773, 76 Stat. 775 (transporting records with counterfeit labels in interstate commerce).

122. Pub. L. No. 90-284, 82 Stat. 73.

123. Id. §§ 101-04, 901-1002, 82 Stat. at 73-77, 89-92 (interstate travel with intent to cause riot).

124. Pub. L. No. 90-321, 82 Stat. 146.

125. Id. § 202, 82 Stat. at 159-62.

126. Act of May 3, 1968, Pub. L. No. 90-299, 82 Stat. 112.

127. Pub. L. No. 90-351, 82 Stat. 197.

128. Id. § 802, 82 Stat. at 212 (criminalized wiretapping without a court order).

129. Id. § 902, 82 Stat. at 226.

130. Pub. L. No. 91-452, 84 Stat. 922.

131. Id. §§ 802, 803, 84 Stat. at 936, 937 (federalizing obstruction of state laws on gambling and the violation of those laws based on the size of the gambling business).

132. Id. § 1102, 84 Stat. at 952.

133. Id. § 901, 84 Stat. at 941 (among other things, unilaterally giving the federal government power to prosecute conspiracies to violate state laws as a federal offense).

134. Pub. L. No. 91-513, 84 Stat. 1236.

135. Id. §§ 101-411, 84 Stat. at 1242-69.

136. Interstate Agreement on Detainers Act, Pub. L. No. 91-538, 84 Stat. 1397 (1970).

137. Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 (1978) (criminalized child pornography when interstate commerce or travel is involved).

138. False Identification Crime Control Act of 1982, Pub. L. No. 97-398, 96 Stat. 2009 (one provision covered using a fake ID in a way that "affects" interstate commerce); Federal Anti-Tampering Act, Pub. L. No. 98-127, 97 Stat. 831 (1983) (criminalized tampering with a consumer product in a way that "affects" interstate commerce); Controlled Substance Registrant Protection Act of 1984, Pub. L. No. 98-305, 98 Stat. 221 (federalized robbery or burglary of a controlled substance from a registered person).

139. Pub. L. No. 98-473, tit. II, 98 Stat. 1837, 1976. This act was the first extensive criminal statute passed as part of an appropriations bill in the case of this statute, a continuing appropriations bill.

140. Id. §§ 1001, 1002, 98 Stat. at 2136 (defining violent crimes, federalizing murder for hire if the mail or interstate commerce is involved, and federalizing violent crimes in aid of racketeering activity including violations of state laws).

141. Id. § 1011, 98 Stat. at 2141.

142. Id. § 1105, 98 Stat. at 2144.

143. Id. § 1108, 98 Stat. at 2147.

144. Id. § 1111, 98 Stat. at 2149 (any theft involving the marketing of livestock in interstate commerce).

145. Id. § 1602, 98 Stat. at 2183.

146. Id. § 2102, 98 Stat. at 2190.

147. Pub. L. No. 99-570, 100 Stat. 3207.

148. Id. §§ 1351,1352, 100 Stat. at 3207-18.

149. Pub. L. No. 100-690, 102 Stat. 4181.

150. Id. § 7521, 102 Stat. at 4489.

151. U.S. Const. art. I, § 8, cl. 3.

152. RICO is one of the better examples of this merger. Under the provisions of RICO, the fact there are two state offenses chargeable brings the defendant's actions under the definitions of "racketeering activity" and "pattern of racketeering activity." See 18 U.S.C. § 1961(1)(A)(1994); 18 U.S.C. § 1961(5)(1994). Current judicial interpretation of what constitutes a racketeering enterprise indicates a broad scope of coverage under RICO. See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 488-522 (1985)(no requirement of prior convictions for predicate offenses; enterprise includes any organization for which a pattern of racketeering can be proved); H.J. Inc. v. Northwestern Bell Telephone Co., 109 S. Ct. 2893, 2898-2902 (1989) (pattern requires two or more related predicate offenses demonstrating continuity or threat of continuity). When the language of the offenses constituting racketeering activity and the interpretation of what is a pattern and what is an enterprise are combined, a large portion of continuing conspiracies to violate state laws could be RICO offenses.

Other federal laws closely parallel state laws, with only minor and commonly applicable elements added to make the offense federal; there are proposals for additional federal laws of this type. Essentially, it is becoming extremely difficult to violate state law without violating federal law and vice versa.

153. Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1868).

154. Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1868); The Federalist, supra note 2, at 292-93; Amar, Of Sovereignty, supra note 25, at 1465-66.

155. A large majority of "thrift" institutions are federally insured. As of 1984, there were fewer than 1,000 commercial bank offices that were not federally-insured less than 2% of all bank offices. Even if each of these offices were the only office of the bank, 1,000 uninsured or state-insured banks would represent less than 7% of all banks. U.S. Dep't of Commerce, supra note 9, at 500. As of 1989, only 133 Savings & Loans were not federally-insured approximately 5% of the total of S & L's and other saving banks. Id. at 504. Finally, as of 1989, approximately 60% of all credit unions were federally-chartered (and thus federally-insured). Id. Using these numbers to develop an estimate, for most of the 1980s, at least 70% of all thrift institutions have been federally-insured, and that percentage has been increasing.

156. E.g., piracy, U.S. Const. art. I, § 8, cl. 10; treason, U.S. Const. art. III, § 3.

157. See U.S. Const. art. I, § 8, cl. 10 (jurisdiction over crimes committed on the high seas); U.S. Const. art. I, § 8, cl. 17 (jurisdiction over District of Columbia and real property of the United States); U.S. Const. art. IV, § 3, cl. 2 (jurisdiction over territories and property of United States).

158. U.S. Const. art. I, § 8, cl. 18.

159. Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819).

160. For example, it can easily be argued that, in order to exercise the power to regulate interstate commerce, Congress must have the authority to exclude items from interstate commerce which do not comply with congressional regulations. Since reasonable people can disagree over which items should be excluded e.g., marijuana, alcohol, and tobacco over some items there will be a disagreement between the federal government and one or more state government as to whether these items should be excluded from commerce. To enforce its decisions on which items should be excluded from interstate commerce in the face of potential state objections, the federal government needs the ability to criminalize the distribution of those items.

On the other hand, it does not logically follow that the ability to regulate interstate commerce includes the power to protect individuals and items
that may occasionally be involved in interstate commerce. Attempting to criminalize efforts to extort money from, for example, the CEO of a major corporation is better characterized as an attempt to exercise a general power over criminal law. Any claim that such a law flows from the power to regulate interstate commerce (or even the marketplace or workplace in general) is clearly pretextual.

161. In his textbook on federal criminal law, Professor Abrams lists several different approaches to analyzing the authorization for federal criminal law. Norman Abrams, Federal Criminal Law and Its Enforcement 32-62 (1986). While these approaches more accurately reflect the traditional justification given for the largest part of federal criminal law, this Article has shuffled these categories and created others to reflect what is hopefully a better approach, or at least one that is more useful for the purposes of this Article.

162. U.S. Const. art. I, § 8, cl. 10; U.S. Const. art. I, § 8, cl. 17; U.S. Const. art. IV, § 3, cl. 2.

163. See, e.g., 18 U.S.C. § 81 (1994) (arson); 18 U.S.C. § 113 (1994) (assault); 18 U.S.C. § 661 (1994) (theft); 18 U.S.C. § 1111 (1994) (murder); 18 U.S.C. § 1112 (1994) (manslaughter); 18 U.S.C. § 1201(a)(2)(1994) (kidnapping); 18 U.S.C. § 1460 (1994) (possession of obscene material with intent to sell); 18 U.S.C. § 2111 (robbery).

164. U.S. Const. art. I, § 8, cl. 6; U.S. Const. art. I, § 8, cl. 10; U.S. Const. art. III. § 3.

165. For current procedures on extradition and a list of bilateral treaties entered into by the United States, see 18 U.S.C. §§ 3181-95 (1994).

166. U.S. Const. art. IV, § 2, cl. 2.

167. 18 U.S.C. § 3182 (1994).

168. 18 U.S.C. app. at 692 (1994).

169. See, e.g., 18 U.S.C. § 1073 (1994); 18 U.S.C. § 2314 (1994).

170. Infra notes 298-322 and accompanying text.

171. First, regulation of commerce can be construed to include regulation not only of the way that commerce is conducted, but also of the actual items which may move in commerce. Second, regulation of all items can be construed to include the power to exclude items which do not comply with regulations. Third, the power to exclude items which do not comply with regulations can be construed to include the power to completely exclude those items that cannot comply with those regulations. Finally, to enforce those prohibitions and to encourage compliance, violations of those regulations can be made a criminal offense.

172. See 21 U.S.C. §§ 841-48 (1994).

173. See sources cited supra note 18; see also infra note 27 and accompanying text.

174. While, in the absence of federal preemption, a state clearly could criminalize narcotics without violating the "dormant" commerce clause, there are two major enforcement problems. First, a state cannot regulate manufacturing in another state. Second, for both financial and constitutional reasons, a state simply cannot inspect every item brought into the state to discover if the item contains illegal narcotics.

175. E.g., murders committed as part of drug deals, property crimes committed by addicts to gain money to buy the drugs, other crimes committed by people "under the influence."

176. See, e.g., 18 U.S.C. § 32 (1994) (destruction of aircraft); 18 U.S.C. § 342 (1994) (operation of common carrier under the influence); 18 U.S.C. § 875 (1994) (interstate communication to demand ransom); 18 U.S.C. § 1304 (1994) (broadcasting of lottery information); 18 U.S.C. § 1343 (1994) (wire fraud); 18 U.S.C. § 1362 (destruction of communication facilities); 18 U.S.C. § 1992 (1994) (wrecking trains).

177. A good example of this is wire fraud. 18 U.S.C. § 1343 (1994). By definition, wire fraud requires interstate communication as part of the fraudulent scheme. Thus, at the very least, two states could claim jurisdiction over the crime, with only part of the evidence being in each of these multiple states.

178. See, e.g., 18 U.S.C. § 33 (1994) (destruction of motor vehicle); 18 U.S.C. § 1362 (1994) (destruction of communication facility).

179. For example, many of these incidents will involve arson and/or assault. It is highly unlikely that a state would distinguish between arson committed on a building owned by a nonresident and arson committed on a building owned by a resident. Even if a state tried, such a distinction would violate numerous constitutional provisions. Furthermore, in most cases, the arsonist would be a threat to both residents and nonresidents.

180. 18 U.S.C. § 241 (1994); 18 U.S.C. § 242 (1994).

181. "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both...." 18 U.S.C. § 242 (1994).

182. It is difficult to imagine a state that would refuse to pursue an assault or other common crime merely because the victim was from another state. While nonresidents are sometimes targets of crime because they look lost and confused, most criminals do not inquire into the residence of their victim. Thus, there is an incentive to catch the criminal and convict her regardless of who the victim was.

183. For example, this law could be used to prosecute members of groups dedicated to harassing abortion patients or members of groups dedicated to harassing individuals who peacefully protest abortion clinics. In both cases, it is unclear that state prosecutors or police officers could be charged with depriving either abortion patients or peaceful protestors of their constitutional rights under color of law for refusing to enforce state laws against those individuals doing the harassing, even if such harassment became violent.

184. While the traditional solution to this problem has been the creation of a federal offense, it is possible a procedural solution giving federal officers power to enforce state laws would also work.

185. See, e.g., 18 U.S.C. §§ 111, 112, 115 (1994)(assault against federal officials, foreign officials, and family members of such officials); 18 U.S.C. §§ 871, 878, 879 (1994)(threats against the President, potential successors, former Presidents, Presidential candidates, and foreign officials); 18 U.S.C. §§ 1114, 1116 (1994) (murder of federal personnel and foreign officials).

186. U.S. Const. art. I, § 8, cl. 18.

187. See, e.g., Ala. Code § 13A-5-40 (Supp. 1995) (making murder of certain state and federal officials a capital offense); Cal. Penal Code Ann. § 190.2 (West Supp. 1996)(creates death-eligibility for murder of certain state and federal officials); cf. N.Y. Penal Law Ann. § 125.27 (McKinney 1996) (murder of peace officers is murder in the first degree, but no difference in the penalty between murder in the first degree and murder in the second degree, at least prior to 1995).

188. Prior to 1995, the maximum penalty in New York for any offense was life with the possibility of parole. N.Y. Penal Law Ann. § 70.00 (McKinney 1987).

189. Events of the past several years make it clear that government installations are subject to attack by enemies both foreign and domestic. Furthermore, these attacks are broadcast to a global audience within minutes, making the attackers instant heroes to their fellow travelers. Given the ability of these groups to choose their target and the wide range of explosive devices including atomic devices available for their use, the federal government should not be required to rely on state law for protection.

190. The Constitution gives Congress the power to tax and spend for the common defense and the general welfare. U.S. Const. art. I, § 8, cl. 1.

191. See, e.g., 18 U.S.C. §§ 286-89 (1994)(false claims against United States); 18 U.S.C. § 371 (1994)(conspiracy to defraud United States); 18 U.S.C. § 641 (1994)(embezzlement of United States property); 18 U.S.C. § 1031 (1994) (major fraud against the United States).

192. See, e.g., 18 U.S.C. § 245(b)(1)(B&E) (1994)(act of violence against those participating in any program run by or receiving funds from the United States); 18 U.S.C. §§ 656, 657 (1994) (embezzlement from federally-insured financial institutions); 18 U.S.C. § 1344 (1994)(bank fraud); 18 U.S.C. § 2155 (1994)(destruction of national defense premises).

193. There are two different types of concerns that could justify this protection. First, there is a concern about crimes designed to frustrate the purpose of the federal funding. For example, the federal government provides funding for a wide variety of scientific research. Either because of the purpose of the research or the methods used, some of these research programs face opponents who may be willing to take action to interfere with this research. Depending on the importance of the research, the federal government may feel the need to provide more protection to these projects than state laws on trespassing, destruction of property, arson, or burglary currently give.

Second, there is the concern about the need to spend more federal money to cover losses suffered by the recipients of federal funding. While this argument, at first glance looks legitimate, the need to minimize avoidable federal spending is a slight concern compared to the state interest in preventing crime in the first place.

194. An exception to this general fact may be those criminals who steal items like social security checks. Even with those items, it is more likely the victim is chosen based on his perceived helplessness rather than the source of his funds. Likewise, the researcher subjected to various forms of harassment by opponents of that research is being harassed for performing the research rather than for accepting federal funds.

195. These statutes cover the actual operation of the branches of the federal government, such as government ethics, the integrity of the judicial process, and the integrity of congressional investigations. See, e.g., 18 U.S.C. § 201 (1994)(bribery of government officials and witnesses); 18 U.S.C. § 402 (1994) (criminal contempt); 18 U.S.C. § 1504 (1994)(influencing juror by writing); 18 U.S.C. § 1505 (1994)(obstruction of proceedings before any agency or before a committee of Congress); 18 U.S.C. § 1621 (1994)(perjury).

196. A prime example of this type of legislation would be the White-Slave Traffic (Mann) Act., Ch. 395, 36 Stat. 825 (1910). While fleeing across state lines to prevent capture for criminal activity is an appropriate subject for federal legislation, the original version of the Mann Act did not consider whether the activity was criminal in any of the states in which the offender was traveling. The current statute covering this subject is limited to those sexual activities which are also criminal activities. 18 U.S.C. § 2421 (1994).

197. See sources cited supra note 27.

198. U.S. Const. art. IV, § 4.

199. To offer anecdotal evidence from my service as a public defender, I had a female client accused of felony stealing. This woman had several prior felony offenses of the same type. Based on her record, the judge felt she deserved a prison sentence. Based on his discussions with the local probation officer, the prosecutor knew this defendant would be paroled shortly after she began serving her sentence. Under these circumstances, the prosecutor felt more control could be exercised over this defendant at a lower cost by placing her on a lengthy term of probation. In the end, the judge sentenced this defendant to a prison sentence, but everyone, including the defendant, knew this sentence was a farce.

200. For example, even though it is technically an offense in most places, no prosecutor is going to file gambling charges against someone for running an office pool. Other prosecutors may, rightly or wrongly, de-emphasize domestic violence. The key point is that these decisions are made based on the political beliefs of the prosecutor, who runs the risk of being thrown out of office if there is substantial opposition to those beliefs among the public at large.

201. An example of this type of decision may be found in states that still retain laws against consensual sodomy. There may be sufficient political pressure to prevent the repeal of these laws, but there is also sufficient political pressure to prevent any attempt to enforce these laws.

202. Currently, the only federal law on the books that clearly applies to corruption by, or efforts to corrupt, state officials is limited to obstruction of state laws in connection with an illegal gambling operation. 18 U.S.C. § 1511 (1994).

203. For a previous discussion of what this author means by the term "New Deal Economic" powers, see Messonnier, supra note 5, at 242-47. Upon further consideration, and another look at the disputes of the era leading up to that crisis, the best way to envision the expansion of federal powers during that era would be to imagine that the Commerce Clause had been amended to read: "[The Congress shall have power] to regulate all commerce and production in both goods and services." Beside expanding the commerce power to include production, this amendment would also have eliminated the restrictions limiting Congress to interstate activities. Court decisions since 1937 have, by use of terms such as "affecting interstate commerce," implemented this unwritten amendment.

204. 18 U.S.C. §§ 891-94 (1994).

205. See, e.g., 15 U.S.C. § 77e (1994); 15 U.S.C. § 77q (1994); 15 U.S.C. § 77x (1994); 15 U.S.C. § 78i (1994); 15 U.S.C. § 78j (1994); 15 U.S.C. § 78ff (1994).

206. See, e.g., 18 U.S.C. § 1961(4) (1994); 18 U.S.C. § 1962 (1994).

207. For example, large-scale stock fraud tends to have a multitude of victims, with almost every state including some victims. Thus, there is a legitimate argument that only the federal government can accurately weigh the damage to society. Likewise, corruption at higher levels of unions that is the national leadership implicitly affects more than one state.

208. See supra notes 172-75 and accompanying text.

209. Cf. United States v. Lopez, 115 S. Ct. 1624 (1995) (holding that Congress lacked power to regulate possession of handguns within 1,000 feet of a school).

210. Ralph Blumenthal, supra note 14; David Johnston, In Justice Dept. Of the 90's, Focus Shifts from Rights, N.Y. Times, Mar. 1, 1991, at A1 (discussing growing focus by Department of Justice on criminal law); Clifford Krauss, Senate Republicans Announce New Campaign for Anticrime Bill, N.Y. Times, Mar. 4, 1992, at A14; Neil Lewis, Bush Urges Quick Action on Crime and Other Areas, N.Y. Times, Mar. 7, 1991, at A5; Charles E. Schumer, Bush, Not Congress, Is Soft on Crime, N.Y. Times, Feb. 1, 1992, at 21.

211. Transcript of the Second Debate Between Bush and Dukakis, N.Y. Times, Oct. 14, 1988, at A14.

212. E.g., drugs, the existence of a "permanent underclass," young adults raised without any sense of moral responsibility or self-discipline.

213. Urban government faces the ultimate economic problem of multiple claims on scarce resources. City governments are creatures of state statutes and state constitutions, with only those powers to raise funds granted by those state authorities. In many cases, the major urban centers have defined boundaries with no potential to annex additional territories. Inside the territorial boundaries, these city governments face an increasingly mobile tax base. As a result of these factors, local governments have very few options for increasing revenue to better meet the demands placed on them. Simultaneously, these demands are increasing. Urban governments (whether the city government themselves or other political units sharing the same space, such as school districts) face a crumbling infrastructure, unfunded federal mandates to reduce air and water pollution, and an education system desperately in need of modern equipment. In addition, there are the traditional concerns of fire protection, community health programs, garbage collection, and the like. On top of these problems, the growing rate of crime is just one more crisis that has to take its place in line.

214. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

215. Cf. Exec. Order No. 12,612, 3 C.F.R. 252 (1987) (emphasizing desire in legislation and regulation to defer to local authorities when possible).

216. 115 S. Ct. 1624, 1626 (1995).

217. "Section 922(q) is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at 1630-31. "In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so that far." Id. at 1640 (Kennedy, J., concurring).

218. "The Constitution mandates this uncertainty [about the constitutionality of federal law] by withholding from Congress a plenary police power that would authorize enactment of every type of legislation. . . . To uphold the Government's contention [here, we would have] to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States." Id. at 1633-34. "[W]e always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power." Id. at 1642 (Thomas, J., concurring) (emphasis in original).

219. Id. at 1627-30, 1635-37 (Kennedy, J., concurring); id. at 1643-50 (Thomas, J., concurring).

220. Id. at 1633.

221. See Norman Abrams, supra note 161, at 65-67.

222. The charge given to this committee should make clear that, except for new offenses which would consolidate multiple offenses into one offense precisely tailored to its constitutional justification, it should not propose any new offenses or new areas for federal regulation.

223. See supra notes 162-209 and accompanying text; see also Messonnier, supra note 5, at 241. This review should take a very critical look at claims based on lengthy chains of implied powers.

224. This group of statutes would be those in which the federal interest in, or the federal ability to deal with, the problem so overwhelms the state interests or state ability that it makes sense to leave the problem entirely to the federal government. Some of these areas constitutionally belong to the federal government, such as illegal immigration. Other areas seem more naturally to be federal issues, such as the manufacture and distribution of drugs though there is some disagreement and some argue, with some justification, that the federal government will not respond to local variations with sufficient urgency, especially in rural areas.

225. See, e.g., 18 U.S.C. § 656 (1994)(theft by bank employee); 18 U.S.C. § 657 (1994)(theft by employees of other credit institutions); 18 U.S.C. § 2113 (1994)(bank robbery).

226. See, e.g., 18 U.S.C. § 659 (1994) (theft of interstate shipments); 18 U.S.C. § 660 (1994) (theft of funds of common carriers); 18 U.S.C. § 1364 (1994) (interference with foreign commerce by violence); 18 U.S.C. § 1951 (1994) (interference with commerce); 18 U.S.C. § 1992 (wrecking trains); 18 U.S.C. § 2117 (1994) (entering locked railway car to commit theft).

227. See supra notes 117-50 and accompanying text.

228. Currently covered by 18 U.S.C. §§ 1073-74 (1994).

229. See, e.g., Child Support Recovery Act of 1992, § 2, Pub. L. No. 102-521, 106 Stat. 3403 (codified at 18 U.S.C. § 228(1994)).

230. This would replace, e.g., 18 U.S.C. § 231 (1994) (civil disorder only partially with remainder covered by next proposed statute); 18 U.S.C. § 1201(a)(1) (1994) (transporting victim of kidnapping across state lines); 18 U.S.C. § 1952 (1994) (interstate travel in aid of racketeering only partially with remainder covered by next proposed statute); 18 U.S.C. § 2101 (1994) (riots only partially with remainder covered by next proposed section); 18 U.S.C. §§ 2421-24 (1994) (transportation for illegal sexual activity).

231. This would replace, e.g., 18 U.S.C. § 201 (1994) (bribery of public officials and witnesses); 18 U.S.C. § 836 (1994) (transportation of fireworks into state prohibiting sale or use); 18 U.S.C. § 875 (1994) (use of interstate commerce to demand ransom or extort money); 18 U.S.C. § 1029 (1994) (fraud using access devices); 18 U.S.C. § 1084 (1994) (transmission of wagering information); 18 U.S.C. § 1262 (1994) (transportation of liquor into state prohibiting sale); 18 U.S.C. §§ 1301, 1304 (1994) (transportation of lottery information); 18 U.S.C. § 1343 (1994) (wire fraud); 18 U.S.C. § 1365 (1994) (tampering with consumer product); 18 U.S.C. §§ 1462, 1465, 1466 (1994) (obscenity); 18 U.S.C. § 1953 (1994) (interstate transportation of wagering paraphernalia); 18 U.S.C. § 1958 (19994) (use of interstate commerce to commit murder for hire); 18 U.S.C. § 2101 (1994) (riots).

232. This would replace, e.g., 18 U.S.C. §§ 1956-57 (1994) (money laundering); 18 U.S.C. §§ 2312-17, 2321 (1994) (transportation of various stolen goods).

233. E.g., explosive materials, 21 U.S.C. §§ 841-48 (1994); gambling, 18 U.S.C. § 1955 (1994); and obscenity/pornography, 18 U.S.C. §§ 1460-69, 2251-57 (1994).

234. 18 U.S.C. § 873 (1994).

235. Some of this space would, of course, be taken away by other criminals who would be prosecuted at the state level once the option of federal prosecution was eliminated.

236. To be more precise, scholars have confused the smaller group of individuals who voted in a particular election with the broader group that constitute "We the People." See, e.g., Alexander M. Bickel, The least Dangerous Branch: The Supreme Court At The Bar Of Politics 16-19 (1962). Having ignored this distinction, scholars find an alternative justification for judicial review instead of enforcing the will of the People. Id. at 34-72; see also John Hart Ely, Democracy and Distrust: A Theory Of Judicial Review (1980). A perhaps unintended side-effect of these theories is a down-playing of the role of the public in actual judicial cases.

237. Contra Akhil R. Amar, The Bill of Rights As a Constitution, 100 Yale L.J. 1131, 1175-99 (1991)[hereinafter Bill of Rights].

238. Before examining the effects of popular sovereignty on these issues, two caveats are in order. First, there are three different aspects of popular sovereignty that interact in the area of criminal law: 1) popular sovereignty as a limit on the powers of government; 2) the existence of procedural protections in the Bill of Rights for the People as a whole; and 3) the role of the People in the government under popular sovereignty. In the discussion of any particular area of criminal procedure, the degree to which each of these three aspects is relevant, and thus which one is emphasized, will change.

Second, in dealing with the text of the Bill of Rights, there are two related "generation gap" problems. The first is the Neo-Federalist problem of later texts that affect the meaning of the Bill of Rights. Dealing with this problem requires a synthesis of these texts. See Ackerman, Constitutional Politics, supra note 27, at 515-45. The other problem is the changed context between the 1780s and the 1990s. Dealing with this problem requires "translating" these texts into modern concepts. See Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993).

To borrow an analogy from Professor Lessig, the problem faced is the equivalent of a motorist trying to get from St. Louis to a small town in New York, slightly west of Albany. The motorist does not have a set of directions to that town, but rather has three sets of directions none of which covers the entire trip. One set gives directions from Kansas City to Boston, but was written before the interstate highway system was built. A second set gives directions from Newark, New Jersey, to the Canadian border with northeastern New York, but uses local names for the roads rather than their "proper" identification e.g., Major Deegan Expressway instead of Interstate 87. The third set gives directions from a small town in Massachussets through the New York town to a town even further west, but uses kilometers and exit number rather than miles and road numbers. If one is able to accurately synthesize and translate these directions, the motorist can use them to complete the journey. If one fails, the motorist will be
lost.

Obviously, given the role of normative statements in law, the problem of synthesis and translation is more difficult for legal concepts than for road directions. Thus, there is room for argument with the analysis that follows. Despite these problems, it is this Article's position that a discussion of criminal procedure within the framework of popular sovereignty would lead to a more accurate and faithful analysis of those provisions within the Bill of Rights affecting the criminal justice system.

239. Amar, Bill of Rights, supra note 237, at 1176-80.

240. John H. Langbein, The Criminal Trial Before Lawyers, 45 U. Chi. L. Rev. 263, 280-82 (1978). Likewise, the criminal justice system in the 1600s effectively forced the accused to testify, because the accused was not allowed to have representation. Id. at 283.

241. By the time the Bill of Rights was adopted, general warrants were no longer allowed, and defendants were not even allowed to testify in their own behalf at criminal trials at least, not under oath. Amar, Bill of Rights, supra note 237, at 1175-80; Joel N. Bodansky, The Abolition of the Party-Witness Disqualification: An Historical Survey, 70 Ky. L.J. 91, 105-28 (1981-82).

242. There are some logical reasons why a small police force would automatically follow the restrictions contained in the Bill of Rights, and its state equivalents, during the late 1700s and early 1800s. First, these agencies, like small rural agencies even today, lacked the resources for a thorough investigation. Second, the technology which makes searches very useful today did not exist. For example, fingerprinting only dates back to around 1900. David Brown, Taking the Whorl-View of Humanity, Wash. Post Wkly. Edition, Aug. 14-20, 1995, at 38. Without even the simplest form of blood testing, fiber analysis, or fingerprinting, random searches would rarely produce useable evidence, except perhaps in smuggling cases. Third, in an era when investigations were the exception instead of the rule, these agencies lacked the public support necessary to immunize officers from potential legal repercussions from an unsuccessful wild goose chase. Under such circumstances, it makes sense to assure that all legal procedures are followed before engaging in a search that may prove futile.

243. Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383 (1914).

244. Mapp, 367 U.S. at 656. See also Arizona v. Evans, 115 S. Ct. 1185, 1191 (1995), and cases cited therein.

245. Mapp, 367 U.S. at 659-60. This reason has been cited very rarely in recent cases, and is almost never cited in cases finding an exception to the exclusionary rule.

246. A large number of instances might hurt those individuals at the top of the law enforcement community by significantly reducing the number of convictions; but there is no evidence the actual officers on the beat are affected. This Article does not intend to deny that the exclusionary rule encourages officers to follow the constitutional requirements when possible, but rather believes the ethic remains that if the alternatives are a questionable search and letting a criminal go the officer should conduct a questionable search and leave the legal questions to the attorneys.

247. In the extreme case, an officer might go sufficiently far as to be guilty of violating state or federal civil rights statutes, but, as recent history demonstrates, it is not easy to gain convictions for violating these statutes. In a society that treats many of the constitutional protections afforded to criminal defendants as mere technicalities except when the rights of "innocents" are violated there are no effective penalties to the individual police officer unless those on the top of the system choose to create such penalties and rigorously enforce them. Furthermore, the decision to impose such penalties would have to be based not on the desire to protect the rights of the citizenry, but rather on the desire to avoid the loss of evidence.

248. Some may argue the exclusionary rule does have a deterrent effect because a police officer wants to do her job well, with that job defined as putting criminals behind bars. It is equally likely that an officer who defines his success in his career on this one aspect of the job, rather than doing the entire job well, which would include following constitutional norms is likely to put the blame for these criminals being freed on judges and lawyers rather than himself.

249. This alternative was expressed as "the imperative of judicial integrity" in Mapp, 367 U.S. at 659 (quoting Elkins v. United States, 364 U.S. 206, 222 (1960)).

250. United States v. Havens, 446 U.S. 620, 626-28 (1980); Oregon v. Hass, 420 U.S. 714, 722-23 (1975); Harris v. New York, 401 U.S. 222, 226 (1971).

251. United States v. Salvucci, 448 U.S. 83, 91-93 (1980); Rawlings v. Kentucky, 448 U.S. 98, 104-06 (1980); Rakas v. Illinois, 439 U.S. 128, 134 (1978).

252. The cases addressing the exceptions to the exclusionary rule also considered the issue of deterrence. See, e.g., Salvucci, 448 U.S. at 94-95; Havens, 446 U.S. at 626. The issue of deterrence, however, is inherently murky and subject to charges of both conservative and liberal judicial activism, because of questions regarding how much deterrence is necessary, how effective is the deterrence, and what is the proper balance between Fourth Amendment interests and other significant interests.

253. The United States Supreme Court recognized the existence of this counter argument in Mapp. 367 U.S. at 659.

254. See, e.g., State ex rel. Missouri Dep't of Natural Resources v. Roper, 824 S.W.2d 901, 904 (Mo. 1992) (discussing source of a state's interests in a case in which state agency sought judicial creation of an exception to general statute).

255. Amar, Of Sovereignty, supra note 25, at 1432-38.

256. See Restatement (Second) of Agency §§ 33, 35 (1957).

257. Cf. Restatement (Second) of Agency §§ 166, 167, 329 (1957). Of course, the principles of agency only apply very roughly to the theory of popular sovereignty, due to the nature of the principal the Sovereign People. Because of the difficulty of action by this principal, it is the exception, rather than the norm, for the People to later ratify an unconstitutional act by one of the government officials acting as an agent of the People. Such ratification, however, has happened previously on rare occasions such as Reconstruction, the New Deal, and perhaps the Louisiana Purchase.

258. Before this statement gets misinterpreted, it should be clarified that in most cases neither the police officer nor the prosecutor is intentionally engaging in an illegal act, but rather under a mistaken belief in the legality of their acts in other words a claim of right to the seized item which in many states is a defense to theft. Thus, in most circumstances, charges are not warranted. The point, however, is that, when acting outside of the authority delegated to them by the People, law enforcement officers are acting in their individual private capacities rather than in their official public capacities.

259. The attempt to introduce such evidence would be an attempt by one agent to "ratify" the improper acts of another agent. Since the Constitution clearly forbids the government from engaging in the underlying constitutional violation, it would be absurd to imply that the Constitution grants one agent the authority to engage in such a ratification.

260. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 748-54 (1984); United States v. Ross, 456 U.S. 798, 804-25 (1982). While the doctrine stays roughly the same, application of that action does change.

261. Of course, it is debatable whether the framers of the Fourth Amendment had such a strong preference as the case law has developed. See Amar, Bill of Rights, supra note 237, at 1175-80. However, such a rule may be inferable from changes such as incorporation against the states and the growth of police forces. Cf. Lessig, supra note 238, at 1228-37. These changes undercut the traditional rule more than may first be apparent. When the federal government was effectively prosecuting only tax cases, treason, and piracy, a guarantee of a trial in the local area plus the
availability of a state tort gave the criminal defendant subjected to an unreasonable warrantless search two trials in front of an audience potentially more favorable to him than to the federal government. In addition, the minimal enforcement resources discouraged extensive searches. A criminal defendant today is more likely to be searched, effectively has no tort remedy, and is highly likely to be facing a hostile jury. In these circumstances, judicial review before, rather than after, the search is the only check to prevent an officer from abusing her discretion.

262. For example, modern communication technology makes it reasonably possible in some jurisdictions to create a "warrant" that could be used to conduct an on-the-scene search of an automobile. To be blunt, with a couple of minor procedural adjustments, even in the rural county in which the author works as a prosecutor, the technology exists to prepare a search warrant within fifteen to thirty minutes by using fax transmission, phone conferencing, and a basic word processing program. As such, under this approach, many of the exceptions to the warrant requirement, including the automobile exception, are slowly losing their "emergency" justification. Cf. County of Riverside v. McLaughlin, 111 S. Ct. 1661, 1673 n.1 (1991) (Scalia, J., dissenting) (noting the reasonableness of the delay in bringing a prisoner arrested without a warrant before a magistrate is in part a product of technology i.e. modern technology allows the prisoner to be brought before a magistrate in a shorter period of time).

263. The United States Supreme Court has recognized two circumstances in which an officer can claim to have acted in good faith: searches based on apparently valid search warrants, United States v. Leon, 468 U.S. 897 (1984); and arrests based on apparently valid arrest warrants, Arizona v. Evans, 115 S. Ct. 1185 (1995).

264. See Leon, 468 U.S. at 913-25.

265. For example, if the property being searched was 813 Elmerine Avenue, a search warrant for 813 Elmarine Street would be "technically invalid." However, unless there was an Elmarine Street, an Elmarine Avenue, or an Elmerine Street, or any other similar sounding street in the same city or same county, the search warrant should not be construed as "legally invalid." Everyone reading the warrant would know the property described despite the typographical error. For that same property, however, a warrant for 713 Elmerine Avenue would be "legally invalid." On its face, such a warrant would give permission to search 713 Elmerine, not 813 Elmerine.

266. See Amar, Bill of Rights, supra note 237, at 1175-80. This rule was explicitly included in the text of the Fourth Amendment.

267. On a tangential matter, the same principle would apply to prevent the prosecutor from using items illegally acquired by private parties.

268. 115 S. Ct. 1185 (1995).

269. The Court stated in part: "'The wrong condemned by the [Fourth] Amendment is fully accomplished by the unlawful search or seizure itself' and the use of the fruits of a past unlawful search or seizure 'work[s] no new Fourth Amendment wrong.'" Arizona v. Evans, 115 S. Ct. 1185, 1191 (1995) (citations omitted). "The exclusionary rule operates as a judicially created remedy designed to safeguard against future violations of the Fourth Amendment rights through the rule's general deterrent effect." Id. (citations omitted).

270. For a discussion of the factors which led to this development, see John H. Langbein, Shaping the Eighteenth Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L. Rev. 1, 84-105 (1983).

271. Cf. 8 John Henry Wigmore, Evidence in Trials at Common Law § 2250, at 278 (McNaughton rev. ed. 1961).

272. Lessig, supra note 238, at 1235-36.

273. In addition to psychological ploys designed to trick defendants into confessions, these techniques included the infamous "third degree" essentially the old English technique of questioning compressed from months into hours. For a discussion of these techniques, see Miranda v. Arizona, 384 U.S. 436, 445-56 (1996).

274. For a discussion of the history of the Supreme Court's interpretations of the Fifth Amendment, see Miranda, 384 U.S. at 460-66.

275. See Arizona v. Fulminante, 111 S. Ct. 1246, 1252-57, 1263-66 (1991) (holding by 5-4 vote that "harmless error" rule applies to improper confession). To some degree, this decision makes sense under the current regime. If a prosecutor has a strong case and the trial court finds no constitutional violation, it makes very little sense to treat the case differently depending upon the constitutional violation found after the trial.

276. In this light, it is important to always maintain a distinction between custodial interrogation and similar techniques designed to get a suspect to admit his guilt, and questioning of potential witnesses designed to discover clues that may lead to the finding of the criminal party. The problem, of course, is that sometimes a key witness to finding out all of the participants in a crime is one of the suspects. Such a circumstance may require something equivalent to use-immunity, either voluntarily granted by investigating agencies or judicially-imposed.

277. A difficult question from this perspective is the "fruit of the poisonous tree" issue. If a private citizen told the state he had seen objects that looked like those taken in a recent robbery, this evidence could be the basis of a search warrant under current doctrine even if that private citizen had gained the knowledge from breaking and entering into the robber's residence. When a police officer conducts an illegal search, she effectively stops acting as a police officer and becomes a private citizen who is breaking and entering into the robber's house. The best argument for applying the exclusionary rule to the fruit of the poisoned tree is that in gaining the "tree," the police officer is acting as an apparent agent of the People, but in a manner forbidden by them. To allow the admission of the "fruit" would ratify this action, which for reasons previously expressed is also impermissible. Similar reasoning would, perhaps, require the extension of the doctrine to evidence found based on the illegal acts of private citizens.

278. Amar, Bill of Rights, supra note 237, at 1187-89.

279. Wainwright v. Witt, 469 U.S. 412, 429 (1985).

280. See, e.g., U.S. Const. amend. VI; Ala. Code §§ 12-16-44, 12-16-57, 12-16-59 (1975); Cal Civ. Proc. Ann. §§ 192, 203 (West Supp. 1996); Me. Rev. Stat. Ann. tit. 14, § 1252-A (West Supp. 1995); Mich. Comp. Laws Ann. § 600.1307a (West Supp. 1995); Mo. Rev. Stat. Ann. § 494.425 (Vernon Supp. 1996); N.Y. Jud. Law, Ann. § 510 (McKinney Supp. 1996); Utah Code Ann. § 78-46-7 (Supp. 1995).

281. E.g., age, the ability to read, mental health.

282. E.g., lawyers, medical personnel.

283. Occupational qualifications exclude admittedly competent venirepersons from any jury service, while the others exclude only venirepersons who are believed to be incompetent or merely determine the place of service. Arguably, these occupational exclusions distort the representative nature of the jury and interfere with the educational function of the jury though the educational function is distorted less by the exclusion of lawyers than by the exclusion of other occupations. For a discussion of the educational function of the jury, see Amar, Bill of Rights, supra note 237, at 1186-87.

284. Cf. id. As a side note, while jury service can be educational, grand jury service is even more so. In my county of 30,000 people, we have just reinstituted a grand jury. During the first two months of a six-month term, these grand jurors have returned indictments on one murder case, one sexual offense, and numerous drug cases and thefts. In seeing these cases, these twelve individuals have been exposed to officers from most of the main law enforcement agencies within the county, and have gotten to see a good cross-section of the type of crimes which occur in the county. One can only hope, as the Framers hoped, that these grand jurors will apply this knowledge to their participation in the political life of their towns and this county.

285. It is not difficult to imagine potential conversations in the jury room. For example, one of the jurors may be saying the testimony of one witness was hard to believe; the "biased" juror states he has known that witness for twenty years and that witness X has always impressed the juror
with her honesty. Likewise, a juror could be stating that the victim's injuries from an attack did not seem to be very serious; the "biased" juror states she knows the victim and saw him soon after the attack when it was clear the injuries were very serious.

286. The struggle for the opposing party will be to convince a juror that an impression of a particular person developed over a lengthy period of time is erroneous. Barring dramatic evidence, this task will be difficult to accomplish. It is even more difficult when the knowledge of the victim or the defendant has led the juror to knowledge about extensive facts regarding the merits of the case.

287. For a discussion of the interrelation between private interests and public citizenship underlying the concept of private citizens, see Ackerman, The Storrs Lectures, supra note 94, at 1032-43.

288. In many cases, general ideological bias, often based on second-hand experience, will have to cope with the gruesome reality that pervades the typical criminal case. In such circumstances, it is not improbable a juror, who during voir dire thinks there is a firm rule governing the situation, could discover an exception to the rule.

289. Batson v. Kentucky, 476 U.S. 79 (1986).

290. Georgia v. McCollum, 112 S. Ct. 2348, 2353-54 (1992); Edmonson v. Leesville Concrete Co., Inc., 111 S. Ct. 2077, 2081 (1991); Powers v. Ohio, 111 S. Ct. 1364, 1368-70 (1991).

291. See supra notes 284-88 and accompanying text.

292. Black's Law Dictionary 1136 (6th ed. 1990).

293. McCollum, 112 S. Ct. at 2359-61 (Thomas, J., concurring in the judgment); Batson, 476 U.S. at 102-08 (Marshall, J., concurring); State v. Parker, 836 S.W.2d 930, 941 (Mo. 1992) (Benton, J., concurring).

294. Chief among these groups are all races, both genders, and religious faiths. While the Batson line of cases has yet to reach the issue of religious beliefs, the Court has reached the issue of gender, finding that such quasi-suspect classifications are protected from discrimination in the exercise of peremptory challenges. J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994). On the basis of federal civil rights laws, an argument could also be made for age and disability.

Less clear is whether equal protection analysis protects even those groups only entitled to rational basis protection. Recent decisions of the Supreme Court have suggested they would not extend Batson to these groups. See Purkett v. Elem, 115 S. Ct. 1769 (1995); J.E.B., 114 S. Ct. at 1429. A closer look at most of the categories subject to rational basis analysis occupations or socioeconomic classes would indicate that membership in those groups is not really rationally related to any legitimate interest at trial, with strikes against such groups being based solely on prejudice.

On this last point, at a recent prosecutor's seminar, I had the opportunity to hear a former prosecutor from Harris County, Texas, tell a story about one of his capital cases. According to this prosecutor, one of the venirepersons fit an image which the so-called book on jury selection said the state should strike a young, college-aged male with long hair wearing a T-shirt. Of course, this book is based on assumptions about what that image means in terms of that venirepersons beliefs. Well, this prosecutor on a hunch kept that venireperson on the jury. On the last day of the trial, when the jury was to hear closing arguments in the penalty-phase and then retire to deliberate over whether to impose the death penalty, this juror again wore a T-shirt, but this T-shirt simply said "Death." After the trial, that juror talked to the prosecutor, expressing how shocked he was that he was kept on the jury and thanking the prosecutor for trusting him. According to the prosecutor, that juror is now attending law school. The moral of this prosecutor's story is that how people view the legal system is based on their interaction with the legal system, which for many is limited to jury service and traffic offenses. Any form of discrimination, even for non-suspect classes, has the potential to give a juror a bad impression on the legal system.

295. If these reasons depart too much from acceptable reasons for challenges for cause, they could run into a problem of violating the popular sovereignty requirement that the actual jury reflect the community.

296. For example, a typical quasi-cause challenge would be used to remove a venireperson who said she knew a witness, but not that well, and that she could be objective about his testimony. If the judge believed that venireperson when she said she could be objective, a challenge for cause would fail. The party against whom that witness would be testifying might have doubts about the venireperson's honesty in that answer. A quasi-cause challenge would allow that party to remove that venireperson.

297. Amar, Bill of Rights, supra note 237, at 1187-91.

298. Heath v. Alabama, 474 U.S. 82, 87-93 (1985); Abbate v. United States, 359 U.S. 187, 189-96 (1959).

299. Cf. Heath, 474 U.S. at 93; Abbate, 359 U.S. at 195.

300. Waller v. Florida, 397 U.S. 387, 391-95 (1970).

301. Id. The separate sovereign argument dates back to early cases involving multiple state and federal proceedings. See, e.g., Moore v. Illinois, 55 U.S. (14 How.) 13, 20 (1852); Houston v. Moore, 18 U.S. (5 Wheat.) 1, 35 (1820) (Johnson, J., concurring).

302. Messonnier, supra note 5, at 225-27.

303. Id. at 229-30, 233-35.

304. Of course, the states are subdivisions of the nation, which are recognized and extensively protected by the Constitution. However, under the powers delegated to the states by the Constitution, the states are equally free to give such recognition and protection to counties and cities.

305. Cf. Amar, Bill of Rights, supra note 237, at 1183-86.

306. Cf. id.

307. Cf. id.

308. For example, was the Patty Hearst trial a criminal trial or a political trial? At face level, she was being tried for typical criminal activities. At another level, an argument could be made that the trial was an attempt by the state to crush the Symbonese Liberation Army a political group opposed to the current government. The same question could be raised by a number of trials, including the Manuel Noriega trial, the trial of the World Trade Center bombers, and the trial of the Oklahoma City bombers. As the government cannot be expected to admit that an individual is being charged merely to stop her political activities, it is legally efficient to extend as the Framers did the protections established for political trials, particularly treason cases, to all criminal trials.

309. Despite Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243 (1833), there is a legitimate argument that the Double Jeopardy Clause, when combined with the common law, applied to state courts as well.

310. For a discussion of reception statutes, see supra note 26.

311. Generally speaking, the common law doctrine of double jeopardy prevented second trials of a person who had previously been convicted or acquitted of the same offense. Grady v. Corbin, 110 S. Ct. 2084, 2098-2100 (1990) [ ] (Scalia, J., dissenting), overruled by, United States v. Dixon, 113 S. Ct. 2849 (1993).

312. U.S. Const. art. IV, § 1.

313. In one of the first cases dealing but only tangentially with a double jeopardy problem, Justice Story mentioned that, if a state offense duplicated a federal offense, multiple trials would probably violate the common law. Houston v. Moore, 18 U.S. (5 Wheat) at 72-74 (Story, J.,
dissenting).

314. This requirement originated with the Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78-79. The current requirement is codified at 18 U.S.C. § 3231 (1994).

315. See, e.g., Cal. Penal Code Ann. § 777 (West 1985); Fla. Stat. Ann. § 900.03 (West 1985); Idaho Code § 19-301 (Supp. 1995); Miss. Code Ann. § 99-11-1 (1994); Mo. Rev. Stat. Ann. § 541.020 (Vernon 1987); N.Y. Crim. Proc. Law Ann. § 20.20 (McKinney 1992).

316. Fed. R. Crim. P. 7(c)(1).

317. See, e.g., Cal. Penal Code Ann. § 959 (West 1985); Idaho Code §§ 19-1302, 19-1401 (Supp. 1995, 1987); Miss. Code Ann. § 99-7-9 (1994); Mo. Stat. Ann. §§ 545.040, 545.240 (Vernon 1987); N.Y. Crim. Proc. Law Ann. § 200.50 (McKinney 1993).

318. 9 U.L.A. 123 (1968).

319. Some relevant factors might be where the crime was initiated, which charge carries the heaviest potential penalty, residence of the victim, residence of the criminal, and other similar matters.

320. See U.S. Const. amend. V; Miss. Const. art III, § 27; N.Y. Crim Proc. Law Ann. § 195.10 (McKinney 1993). Of course, there are legitimate constitutional arguments from both the traditional approach to the Fourteenth Amendment, and from the theory of popular sovereignty, that the Fifth Amendment Grand Jury Clause should also apply to the states.

321. At the very least, the burden of providing a historical justification for the doctrine should fall on the proponents of dual sovereignty to present a better common law case than has been presented so far. If there was any basis for the doctrine of dual sovereignty, there should be cases at common law reflecting multiple trials of defendants committing crimes in the border regions between England and Scotland or England and Wales.

322. A discussion of whether double jeopardy prohibits multiple sentences upon conviction for similar state and federal offenses within the same trial is beyond the scope of this Article, as the issue of multiple sentences turns on legislative intent, which would require analysis of each statute. See Missouri v. Hunter, 459 U.S. 359, 366-69 (1983).