What was a federal crime in 1787? I agree with Brutus. There weren’t any.

I am helping Judge Gibson prepare the syllabus for the Federal Court Practice class at the Penn State Dickinson School of Law this Spring. For the first class, the students will be reading Article III (as all law students should).

Re-reading Article III reminded me of a question I asked my Federal Courts professors, to which I did not receive a satisfactory answer: What was a crime under the authority of the Federal Government in 1787?

Article III, Section 2 Provides:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

But what were these crimes? The Federal Government has no general police power.

Brutus XIV (28 February 1788) notes:

“There is no criminal matter, to which the judicial power of the United States will extend; but such as are included under some one of the cases specified in this section.”

I tend to agree with Brutus’s reading.

Reading the original text of the Constitution, the only federal crimes that jump to mind are counterfeiting currency and securities, and perhaps treason. But what else?

Today, most federal crimes are based in the Commerce Clause. But how were federal crimes defined before the New Deal Revolution? This may be fodder for a future law review article.

For those curious, in addition to Article III, tentatively, the students may also studying Brutus XI-XII, XIV-XV and The Federalist 78, 79, 80, 81, 82, 83, followed by Marbury v. Madison.


13 Responses to “What was a federal crime in 1787? I agree with Brutus. There weren’t any.”

  1. troll_dc2 Says:

    I see in someone’s future an argument that the doctrine of Original Intent means that nothing should be a federal crime but treason and counterfeiting. But I would argue that Congress should be regarded as having the power to outlaw theft of the mail as well stealing from people and commercial carriers as they cross a state line.

    • Josh Blackman Says:

      I’m just curious, so it is worth looking into. I asked my federal courts teacher this exact question, and I did not receive a satisfactory response. I’d buy theft of the mail. As far as crimes crossing state lines, I’d have to view the original meaning of the commerce clause, and whether that dealt with crimes.

      And it would be original meaning, not original intent 😉

  2. troll_dc2 Says:

    Sorry about original intent instead of original meaning. In either case, though, the problem is discovering what it was– if there was one.

    I was not denigrating your question. It is an interesting one, and the fact that you did not get a satisfactory answer suggests that there may not be one. The partisans of relying on the idea that you should focus on what something meant at the time of constitutionalizing assume, do they not?, that you can figure that that meaning if you just look hard enough. But what if you cannot find any evidence? Or suppose you find multiple, inconsistent indicators. What do you do if one framer said one thing, another one said something else, and the text can be read either way? I wonder how much the partisans of original focus (there, I avoided the issue) have ever looked at history the way that historians do.

    • Josh Blackman Says:

      Many partisans of original focus tend to rely heavily on historians. Professor Malcolm, one of my favorites at GMU, is a prominent historian, whose work was heavily relied upon in the context of 2nd Amendment Litigation. But even among historians, there is always substantial disagreement.

  3. troll_dc2 Says:

    Yes, historians disagree a lot, which suggests that original understanding (there, an even better term) is not a slam-dunk method of analysis. Have you ever read Alden v. Maine, 529 U.S. 706 (1999), with its duling histories of the concept of federalism?

    • Josh Blackman Says:

      I have read Alden. Seminole Tribe as well. Very inconclusive.

      Though, Scalia frequently says that the burden is not to prove that Originalism is the *best* system, but that it is better than others.

  4. troll_dc2 Says:

    Before you make fun of me for misspelling “dueling.” let me attack your blog for not having a correction feature (that I am aware of).

  5. troll_dc2 Says:

    I do not trust Scalia as a guide. I note that he himself does not want the Ninth Amendment to be invoked because he thinks that it gives too much power to judges. But the framers included it anyway. Did they mean for it not to be used as the basis for any rulings?

    • Josh Blackman Says:

      Scalia is a self-professed faint hearted originalist, or as I call him, a selective originalist. He talks the talk, but doesn’t walk the walk.

  6. But if there were no federal crimes, why would we need the 4th, 5th, and 6th amendments? « Josh Blackman's Blog Says:

    […] November 19, 2009 — Josh Blackman I previously blogged about what would be a federal crime in 1787. I conclude that for the most part, there could not be […]

  7. Orin Kerr Says:


    The first set of federal crimes (that I know of) that Congress passed was 1 Stat. 112, enacted April 30, 1790.

    You should read Chief Justice Marshall’s opinion United States v. Wiltberger (1820) for an example of one of these laws:


    I don’t think it occurred to anyone at the time that such laws exceeded Congress’s commerce clause power.

    • Corey Carpenter Says:

      Professor Kerr,
      I did a quick reading of the link you posted, and it seems that the 1 Stat. 112 particularly concerns crimes committed in places where only the federal government has jurisdiction, i.e. the high seas and federal land as opposed to a general policing power (and treason). I did a textual search of the Constitution last night on this question, and it seems that this would conform to the powers granted to Congress under Article 1, Section 8. I googled the statute in question, because it looked like it supported my textual analysis….those crimes mostly focused on the high seas (or conspiracy to commit a crime on the high seas) and land in areas where only the federal government has jurisdiction, so it still supports my thesis. Additionally, one of the first search results was this blog post in 2004: http://federalism.typepad.com/crime_federalism/2004/11/our_first_congr.html
      Which would seem both to confirm my suspicions about federal crimes and the Constitution. Such crimes would never engender the question of commerce power since other provisions would govern them.

  8. 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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