But if there were no federal crimes, why would we need the 4th, 5th, and 6th amendments?

I previously blogged about what would be a federal crime in 1787. I conclude that for the most part, there could not be any.

Corey C, a bright eyed, blue haired 1L at George Mason law, posed a fantastic question.

If there were no federal crimes, why would the Constitution have needed the 4th, 5th, and 6th criminal procedure amendments?

If the only crimes were state crimes, and there were no federal crimes, how would the federal government have been bound by these amendments?

Corey suggests that this perhaps counsels in favor of incorporation. Perhaps, Barron v. Baltimore was wrong?

Just some more food for thought, but it gets my originalist juices flowing.


7 Responses to “But if there were no federal crimes, why would we need the 4th, 5th, and 6th amendments?”

  1. troll_dc2 Says:

    Maybe the framers anticipated that the enumerated powers were broad enough to support legislation creating federal crimes.

    On the other hand, maybe the judges who are being prosecuted in federal court in northeastern Pennsylvania ought to argue that the indictments should be dismissed because Congress lacked authority under the Constitution, as our founding fathers knew it, to create an anti-corruption crime for state and local officials.

  2. Carl Edman Says:

    One can be a pretty hard-core federalist and yet admitted that, even within the limited provisions of article 1 section 8, Congress had the power to create at least some federal statutory crimes.

    In addition recall that at least some crimes, such as treason, were created as federal offenses as part of the original constitution. At least to those crimes the protections of the Bill of Rights would have applied ab initio.

  3. John Frazer Says:

    Besides treason, what about crimes against the law of nations, such as piracy on the high seas?

    And of course, by the time the Bill of Rights was proposed, the First Congress may have created some crimes. I have no idea if they actually had; even if they hadn’t, wouldn’t it be reasonable to think that they might anticipate doing so in the future, and that doing so might necessitate some protection for defendants?

  4. Orin Kerr Says:


    This is way off. The Judiciary Act of 1789 explicitly conferred jurisdiction over federal crimes to the newly created federal courts. Soon after, Congress passed a slew of federal crimes. See, e.g., 1 Stat. 112, enacted April 30, 1790.

  5. troll_dc2 Says:

    Orin, what was the constitutional basis for the 1789 legislation? Am I correct in thinking that that statute did not give federal courts federal-question jurisdiction?

    If this link is correct, there were not “a slew of federal crimes” created by the legislation. (Os should “were” be “was”?)http://federalism.typepad.com/crime_federalism/2004/11/our_first_congr.html

  6. Original Crimes: What were Federal Crimes in 1789, and Reply to Professor Kerr « Josh Blackman's Blog Says:

    […] I blogged a bit yesterday about what exactly was considered a federal crime in 1789 (see here and here). I argued that beyond certain crimes according to enumerated powers (securities, currency, etc), […]

  7. Josh Blackman Says:

    I replied to this thread here https://joshblogs.wordpress.com/2009/11/20/original-crimes-what-were-federal-crimes-in-1789-and-reply-to-professor-kerr/

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