3.3 Sources of Criminal Law: Federal and State Constitutions
Lore Rutz-Burri; Kate McLean; and Chantel Chauvin
Where do you look to see if something you want to do violates some criminal law? The answer is “in many places.” Criminal law originates from many sources which will be detailed in the next few chapter sections. Some criminal law is the result of constitutional conventions, so you would need to review federal and state constitutions. Other criminal laws result from the legislative or initiative process, so you will need to review state statutes or congressional acts. Moreover, some criminal law results from the work of administrative agencies, so you need to review state and federal administrative rules. Finally, criminal law that emerges from “case law” originates from appellate court opinions written by judges. These court opinions, called “decisions,” are published in both official and unofficial reports (but thanks to the internet, they are now easy to find if you know the parties’ names). Much of our criminal law descended from the English common law. This law developed over time, through custom and tradition, and it is a bit more difficult to locate, but it is mentioned in treatises and legal “hornbooks” (like legal encyclopedias) and is often referred to in case decisions.
The Federal Constitution—The Constitution of the United States
Although the United States Constitution recognizes only three crimes (counterfeiting, piracy, and treason), it nevertheless plays a significant role in the American criminal justice system. Most importantly, the Constitution establishes limits on certain types of legislation or substantive law, and it provides significant procedural constraints on the government when it seeks to prosecute individuals for crimes. The Constitution also establishes federalism (the relationship between the federal government and state governments), requires the separation of powers between the three branches of government (the judicial branch, the legislative branch, and the executive branch), and limits Congress’s authority to pass laws not directly related to either its enumerated powers (listed in the Constitution) or implied powers (inferred because they intertwined with the enumerated powers).
State Constitutions
States’ constitutions, similar to the federal Constitution, set forth the general organization of state government and basic standards governing the use of governmental authority. Although the federal constitution is preeminent because of the Supremacy Clause, state constitutions are still significant. State constitutional rules are supreme as compared to any other rules coming from all other state legal sources (statutes, ordinances, administrative rules) and prevail over such laws in cases of conflict. The federal constitution sets the floor of individual rights, but states are free to provide more individual freedoms and protections that are granted by the federal constitution. State constitutions are defined and interpreted by state courts, and even identical provisions in both the state and federal constitutions may be interpreted differently. For example, a state constitution’s guarantee to be free from unreasonable searches and seizures may mean that, under state law, roadblocks established to identify impaired, intoxicated drivers are impermissible, but under the federal Constitution, these roadblocks are permitted and are not deemed to be unreasonable seizures. (Click on the hyperlinks to see a copy of the Louisiana State Constitution of 1974 and the updated constitution as well as amendments to the 1974 constitution.)
Rule of Law, Constitutions, and Judicial Review
One of the key features of the American legal system has been its commitment to the rule of law. Rule of law has been defined as a “belief that an orderly society must be governed by established principles and known standards that are uniformly and fairly applied” (Feldmeier & Schmalleger, 2012). Reichel identified a three-step process by which countries can achieve rule of law (Reichel, 2018). The first step is that a country must identify core, fundamental values. The second step is for the values to be reduced to writing and written somewhere that people can point to them. The final step is to establish a process or mechanism whereby laws or governmental actions are tested to see if they are consistent with the fundamental values. When laws or actions embrace the fundamental values, they are considered valid, and when the laws or actions conflict with the fundamental values, they are invalid.
Applying this three-step process to America’s approach to law, one can see that Americans have recognized fundamental values, such as the right to freedom of speech, the right to privacy, and the right to assemble. Second, we have reduced these fundamental values to writing and, for the most part, have compiled them in our constitutions (both federal and state). Third, we have a mechanism, that of judicial review, by which we judge whether our laws and our government actions comply with or violate our fundamental values found within our constitutions. Judicial review is the authority of the courts to determine whether a law (a legislative action) or action (an executive or judicial action) conflicts with the Constitution. Judicial review can be traced to the case of Marbury v. Madison, 5 U.S. 137 (1803), in which Chief Justice John Marshall wrote, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”
