1. The
Constitution grants to Congress only limited powers to make criminal laws. These powers fall into
five categories: a) those made pursuant to express authorizations for four specific crimes; b) those made
under the "necessary and proper" clause; c) those made for the few
tiny geographical areas over which Congress has "exclusive
Legislation"; d) those governing the military; and e) those made pursuant
to two of the
Amendments to the Constitution. Let's look at each category:
a) Art. I, § 8 grants to Congress authority to define & punish counterfeiting, piracies and felonies committed on the high seas, & offenses against "the Laws of Nations". [1] Article III, §3 grants to Congress a restricted power to declare the punishment of Treason.
a) Art. I, § 8 grants to Congress authority to define & punish counterfeiting, piracies and felonies committed on the high seas, & offenses against "the Laws of Nations". [1] Article III, §3 grants to Congress a restricted power to declare the punishment of Treason.
b) Art. I, §8, last clause, grants to
Congress the power "to make all Laws which shall be necessary and proper for carrying into Execution …all
…Powers vested by this Constitution in the Government of the United
States…". This necessary and proper clause allows Congress to make criminal laws when
necessary to enforce powers vested by the Constitution in the federal
government. This worried people, so Madison & Hamilton
explained it:
In Federalist No. 44,
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