Identify and discuss the constitutional protections afforded people accused of crimes. How did those protections evolve?? Outline how these protections might be different, if at

Source: Image courtesy of Tara Storm.

federalism

A system of government in which power is divided between a national, federal government and several state governments.

commerce clause

A clause in the Constitution that allows Congress to regulate commerce (economic activity) that crosses state lines.

necessary and proper clause

A clause in the Constitution that allows Congress to make laws necessary to carry out all powers listed in the Constitution.

C H A P T E R 2 The Legal System in the United States The requirement of proof beyond a reasonable doubt has this vital role in our criminal

procedure for cogent reasons. The accused, during a criminal prosecution, has at stake

interests of immense importance, both because of the possibility that he may lose his liberty

upon conviction and because of the certainty that he would be stigmatized by the

conviction.

– In re: Winship, cited in Section 4

1. FEDERALISM

L E A R N I N G O B J E C T I V E S

1. Define federalism. 2. Ascertain the sections of the Constitution that give Congress regulatory authority. 3. Ascertain the basis for Congress’s authority to enact criminal laws. 4. Compare federal regulatory authority with state regulatory authority. 5. Compare federal criminal laws with state criminal laws. 6. Define federal supremacy.

The United States’ system of government is called federalism. Federalism, as set forth in the US Con- stitution, divides governmental power between the federal government and each of the states. This pre- vents a concentrated source of governmental power in one individual or small group of individuals. Be- cause of federalism, the United States has one federal legal system, and each state has its own state legal system. Thus in the United States, a plethora of legal systems all operate harmoniously at the same time.

1.1 The Scope of Federal Law The government’s power to regulate comes from the US Constitution. The federal government derives its authority to create law from Article I, § 8, which discusses federal Congress’s exclusive or delegated powers. These include the power to regulate currency and coin, establish a post office, promote science and art by regulating the rights to discoveries and writings, declare war and raise armies, conduct for- eign affairs, regulate interstate and foreign commerce, and make laws necessary and proper to execute other powers expressly granted in the Constitution. Courts have interpreted the last two powers men- tioned in the commerce clause and the necessary and proper clause to be the broadest sources of federal regulatory authority.

To simplify and summarize precedent defining federal regulatory authority, federal laws are meant to regulate in two areas. First, federal laws regulate issues that concern the country, rather than just one city, county, or state. The federal government regulates in the area of foreign affairs, for example, be- cause this affects the United States of America, not just one particular region. Second, federal laws reg- ulate commerce, which is economic activity, that crosses from state to state. Some common examples are television broadcasts, the Internet, and any form of transportation such as the airlines.

Federal Criminal Laws

The original intent was for the federal government to be a limited government, with the bulk of regulat- ory authority residing in the states. The only crimes Congress is specifically authorized to punish are piracies and felonies on the high seas, counterfeiting, and treason; however, case precedent has expan- ded the federal government’s power to enact criminal laws based on the commerce clause and the ne- cessary and proper clause.[1] Still, there must be some connection to an issue of national character and interstate commerce, or the federal government will overstep its authority. In general, federal criminal laws target conduct that occurs on federal property or conduct involving federal employees, currency, coin, treason, national security, rights secured by the Constitution, or commerce that crosses state lines. Currently, over five hundred crimes are listed in Part I, Title 18 of the United States Code, which codifies criminal laws for the federal government.

FIGURE 2.1 Diagram of Federal Laws

1.2 The Scope of State Law The US Constitution designates the states as the primary regulatory authority. This is clarified in the Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or the people.” State laws are also supposed to regulate in two areas. First, state laws regulate issues of a local character or concern. A

32 CRIMINAL LAW

police power

The states’ power to regulate for citizens’ health, safety, and welfare, as set forth in the Tenth Amendment to the Constitution.

state may regulate, for example, its water ownership and use because water can be scarce and is not generally provided to other states. Second, state laws regulate issues or things that remain within a state’s border. A state generally regulates, for example, the operation of a small business whose products are only sold locally and not shipped out of the state.

Federal laws are the same in every state, but state laws differ from state to state. Something that is legal in one state may be illegal in another state. This inconsistency makes our system of federalism complicated for students (and lawyers). However, with a country as large and varied as the United States, it is sensible to allow each state to choose for itself which laws will be most suitable.

State Criminal Laws

The power to enact criminal laws belongs almost exclusively to the states. This is because of the Tenth Amendment, which vests in states a police power to provide for the health, safety, and welfare of state citizens. Approximately 90 percent of all criminal laws are state, rather than federal. Often, federal crimes are also state crimes and can be prosecuted and punished by both the state and federal govern- ment without violating the principle of double jeopardy.

Example of the Diversity of State Laws

In Nevada, prostitution is legal under certain circumstances.[2] An individual who engages in prostitu- tion inside a licensed “house of prostitution” in Nevada is not exposed to criminal liability. However, if the same individual engages in prostitution in a different state, he or she may be subject to a criminal prosecution. Prostitution will be discussed in detail in Chapter 12.

FIGURE 2.2 Crack the Code

CHAPTER 2 THE LEGAL SYSTEM IN THE UNITED STATES 33

federal supremacy

If there is a conflict between federal and state law, courts must follow the federal law.

1.3 Federal Supremacy Our legal system is divided up to conform to the principle of federalism, so a potential exists for con- flict between federal law and state law. A federal law may make something illegal; a state law may insist that it is legal. Whenever a conflict occurs between federal and state law, courts must follow the federal law. This is called federal supremacy. As the Supremacy Clause of Article VI of the federal Constitu- tion states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Example of Federal Supremacy

In Washington and several other states, an individual may possess and use marijuana for medicinal purposes with a prescription.[3] Federal law prohibits possession and use of marijuana under any cir- cumstances.[4] Technically, this could be a conflict that violates federal supremacy. Until the courts ad- dress the federal supremacy issue, however, medical marijuana statutes can continue to stay in effect. Read about a recent ruling regarding the constitutionality of Michigan’s medicinal marijuana law un- der the Supremacy Clause: http://www.pressandguide.com/articles/2011/04/09/news/ doc4d9f557b8ab37805648033.txt.

FIGURE 2.3 Diagram of State Laws

34 CRIMINAL LAW

L A W A N D E T H I C S : T H E A R I Z O N A I M M I G R A T I O N L A W

Can a State Regulate Immigration?

Arizona passed a comprehensive immigration law designed to seek out and deport illegal immigrants. This law created a national furor, and its detractors insisted it would lead to unethical racial profiling. The federal government attacked the law in Federal District Court.[5] Judge Susan Bolton issued a preliminary injunction that stopped enforcement of the sections of the law that required state law enforcement to check an immig- rant’s status while enforcing other laws and that required immigrants to prove they were in the country legally or risk state charges.[6] Read the District Court’s preliminary injunction ruling, which is available at this link: http://graphics8.nytimes.com/packages/pdf/national/20100729_ARIZONA_DOC.pdf.

1. What is the basis for Judge Bolton’s decision? Check your answer using the answer key at the end of the chapter.

Read about the most recent ruling on Arizona’s immigration law by the US Court of Appeals for the Ninth Cir- cuit: http://latindispatch.com/2011/05/10/ arizonas-jan-brewer-to-appeal-immigration-law-to-u-s-supreme-court/.

Read about Utah’s immigration law: http://articles.cnn.com/2011-05-11/politics/ utah.immigration.bill_1_utah-law-gary-herbert-utah-gov?_s=PM:POLITICS.

Read about Alabama’s immigration law: http://www.reuters.com/article/2011/06/10/ tagblogsfindlawcom2011-freeenterprise-idUS123058502120110610.

U.S. v. State of Arizona Video

10-16645 U.S. v. State of Arizona

This video is the Arizona governor’s appeal of the district court preliminary injunction:

View the video online at: http://www.youtube.com/v/ClSk_OrHSIM

CHAPTER 2 THE LEGAL SYSTEM IN THE UNITED STATES 35

K E Y T A K E A W A Y S

< Federalism is a system of government in which power is divided between one national, federal government and several independent state governments.

< Congress gets its regulatory authority from Article I § 8 of the federal Constitution. This includes several delegated powers, the commerce clause, and the necessary and proper clause.

< The commerce clause gives Congress the power to regulate commerce that crosses state lines.

< The necessary and proper clause gives Congress the power to regulate if necessary to carry out all other powers listed in the Constitution.

< The Constitution specifically authorizes Congress to punish piracies and felonies on the high seas, counterfeiting, and treason. Case precedent has also expanded the federal government’s power to enact criminal laws based on the commerce clause and the necessary and proper clause.

< The federal government is intended to be limited, with the bulk of regulatory authority residing in the states. The federal government is restricted to regulating in the areas designated in Article I § 8 of the federal Constitution. The states can regulate for the health, safety, and welfare of citizens pursuant to their police power, which is set forth in the Tenth Amendment of the federal Constitution.

< Federal criminal laws criminalize conduct that occurs on federal property or involves federal employees, currency, coin, treason, national security, rights secured by the Constitution, or commerce that crosses state lines. State criminal laws make up 90 percent of all criminal laws, are designed to protect state citizens’ health, safety, and welfare, and often criminalize the same conduct as federal criminal laws.

< Federal supremacy, which is set forth in the Supremacy Clause of the federal Constitution, requires courts to follow federal laws if there is a conflict between a federal and state law.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Congress passes a law criminalizing the posting of child pornography on the Internet. Where does Congress get the authority to pass this criminal law? If a state has a criminal law criminalizing the same conduct, can both the state and federal government prosecute a defendant for one act of downloading child pornography?

2. Read U.S. v. Morrison, 529 U.S. 518 (2000). Which part(s) of the Constitution did the US Supreme Court rely on when it held that 42 U.S.C. § 13981 is unconstitutional? The case is available at this link: http://www.law.cornell.edu/supct/html/99-5.ZS.html.

3. Read Pennsylvania v. Nelson, 350 U.S. 497 (1956). Why did the US Supreme Court invalidate the Pennsylvania Sedition Act? The case is available at this link: http://supreme.justia.com/us/350/497/ case.html.

36 CRIMINAL LAW

legislative branch

The branch of government responsible for creating statutory law.

executive branch

The branch of government responsible for enforcing statutory law.

judicial branch

The branch of government responsible for interpreting statutory and constitutional law(s).

separation of powers

Each government branch must act only within the scope set forth in the Constitution.

bicameral

Made up of two houses.

Senate

The house of Congress responsible for representing each state.

House of Representatives

The house of Congress responsible for representing each citizen of the United States.

2. THE BRANCHES OF GOVERNMENT

L E A R N I N G O B J E C T I V E S

1. Identify the three branches of government. 2. Ascertain the head of the federal and state legislative branches of government. 3. Compare the Senate and the House of Representatives. 4. Ascertain the head of the federal and state executive branches of government. 5. Ascertain the head of the federal and state judicial branches of government.

The federal Constitution was written to ensure that government power is distributed and never con- centrated in one or more areas. This philosophy is served by federalism, where the federal government shares power with the states. It is also further served by dividing the government into three branches, all responsible for different government duties and all checking and balancing each other. The three branches of government are detailed in Articles I–III of the federal Constitution and are the legislative branch, the executive branch, and the judicial branch. While the federal Constitution identifies only the federal branches of government, the principle of checks and balances applies to the states as well. Most states identify the three state branches of government in their state constitution.

Each branch of government has a distinct authority. When one branch encroaches on the duties of another, this is called a violation of separation of powers. The courts decide whether a government branch has overstepped its boundaries because courts interpret the Constitution, which describes each branch’s sphere of influence. Thus the judicial branch, which consists of all the courts, retains the bal- ance of power.

2.1 The Legislative Branch The legislative branch is responsible for creating statutory laws. Citizens of a state can vote for some state statutes by ballot, but the federal legislative branch enacts all federal statutes. In the federal gov- ernment, the legislative branch is headed by Congress. States’ legislative branches are headed by a state legislature. Congress is bicameral, which means it is made up of two houses. This system provides equal representation among the several states and by citizens of the United States. States are represen- ted by the Senate. Every state, no matter how large or small, gets two senators. Citizens are represented by the House of Representatives. Membership in the House of Representatives is based on popula- tion. A heavily populated state, like California, has more representatives than a sparsely populated state, like Alaska. States’ legislatures are generally bicameral and have a similar structure to the federal system.

CHAPTER 2 THE LEGAL SYSTEM IN THE UNITED STATES 37

FIGURE 2.4 Diagram of the Legislative Branch

Examples of Legislative Branch Checks and Balances

The legislative branch can check and balance both the executive branch and the judicial branch. Con- gress can impeach the president of the United States, which is the first step toward removal from office. Congress can also enact statutes that supersede judicial opinions, as discussed in Chapter 1. Similarly, state legislature can also impeach a governor or enact a state statute that supersedes a state case law.

2.2 The Executive Branch The executive branch is responsible for enforcing the statutes enacted by the legislative branch. In the federal government, the executive branch is headed by the president of the United States. States’ exec- utive branches are headed by the governor of the state.

38 CRIMINAL LAW

FIGURE 2.5 Diagram of the Executive Branch

Examples of Executive Branch Checks and Balances

The executive branch can check and balance both the legislative branch and the judicial branch. The president of the United States can veto statutes proposed by Congress. The president also has the au- thority to nominate federal justices and judges, who thereafter serve for life. State executive branches have similar check and balancing authority; a governor can generally veto statutes proposed by state le- gislature and can appoint some state justices and judges.

2.3 The Judicial Branch The judicial branch is responsible for interpreting all laws, including statutes, codes, ordinances, and the federal and state constitutions. This power is all encompassing and is the basis for judicial review, referenced in Chapter 1. It allows the judicial branch to invalidate any unconstitutional law in the stat- utory source of law and also to change the federal and state constitutions by interpretation. For ex- ample, when a court creates an exception to an amendment to the constitution, it has made an inform- al change without the necessity of a national or state consensus. The federal judicial branch is headed by the US Supreme Court. Each state’s judicial branch is headed by the highest-level state appellate court. Members of the judicial branch include all judges and justices of every federal and state court in the court system, which is discussed shortly.

CHAPTER 2 THE LEGAL SYSTEM IN THE UNITED STATES 39

FIGURE 2.6 Diagram of the Judicial Branch

Examples of Judicial Branch Checks and Balances

The judicial branch can check and balance both the legislative branch and the executive branch. The US Supreme Court can invalidate statutes enacted by Congress if they conflict with the Constitution. The US Supreme Court can also prevent the president from taking action if that action violates separation of powers. The state courts can likewise nullify unconstitutional statutes passed by the state legislature and void other executive branch actions that are unconstitutional.

TABLE 2.1 The Most Prominent Checks and Balances between the Branches

Government Branch

Duty or Authority Check and Balance Government Branch Checking and Balancing

Legislative Create statutes President can veto Executive

Executive Enforce statutes Congress can override presidential veto by 2/3 majority

Legislative

Judicial Interpret statutes and Constitution

President nominates federal judges and justices Executive

Executive Enforce statutes Senate can confirm or reject presidential nomination of federal judges and justices

Legislative

Executive Enforce statutes Congress can impeach the president Legislative

Legislative Create statutes Courts can invalidate unconstitutional statutes Judicial

Executive Enforce statutes Courts can invalidate unconstitutional executive action

Judicial

Judicial Interpret statutes and Constitution

Statutes can supersede case law Legislative

40 CRIMINAL LAW

K E Y T A K E A W A Y S

< The three branches of government are the legislative branch, the executive branch, and the judicial branch.

< The head of the federal legislative branch of government is Congress. The head of the state legislative branch of government is the state legislature.

< The Senate represents every state equally because each state has two senators. The House of Representatives represents each citizen equally because states are assigned representatives based on their population.

< The head of the federal executive branch of government is the president. The head of each state executive branch of government is the governor.

< The head of the federal judicial branch of government is the US Supreme Court. The head of each state judicial branch of government is the highest-level state appellate court.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. A mayor enacts a policy that prohibits police officers in his city from enforcing a state law prohibiting the possession and use of marijuana. The mayor’s policy specifically states that within the city limits, marijuana is legal to possess and use. Which constitutional principle is the mayor violating? Which branch of government should check and balance the mayor’s behavior in this matter?

2. Read Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In Youngstown, President Truman seized control of steel mills to avert a strike, using his authority as commander in chief of the armed forces. President Truman wanted to ensure steel production during the Korean War. Did the US Supreme Court uphold President Truman’s action? Why or why not? The case is available at this link: http://supreme.justia.com/us/343/579/.

3. Read Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In Hamdi, the US Supreme Court reviewed the US Court of Appeals for the Fourth Circuit’s decision prohibiting the release of a US citizen who was held as an enemy combatant in Virginia during the Afghanistan War. The citizen’s detention was based on a federal statute that deprived him of the opportunity to consult with an attorney or have a trial. Did the US Supreme Court defer to the federal statute? Why or why not? The case is available at this link: http://scholar.google.com/ scholar_case?case=6173897153146757813&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

3. THE COURT SYSTEM

L E A R N I N G O B J E C T I V E S

1. Compare federal and state courts. 2. Define jurisdiction. 3. Compare original and appellate jurisdiction. 4. Identify the federal courts and determine each court’s jurisdiction. 5. Identify the state courts and determine each court’s jurisdiction.

Every state has two court systems: the federal court system, which is the same in all fifty states, and the state court system, which varies slightly in each state. Federal courts are fewer in number than state courts. Because of the Tenth Amendment, discussed earlier in Section 1, most laws are state laws and therefore most legal disputes go through the state court system.

Federal courts are exclusive; they adjudicate only federal matters. This means that a case can go through the federal court system only if it is based on a federal statute or the federal Constitution. One exception is called diversity of citizenship.[7] If citizens from different states are involved in a civil law- suit and the amount in controversy exceeds $75,000, the lawsuit can take place in federal court. All fed- eral criminal prosecutions take place in federal courts.

State courts are nonexclusive; they can adjudicate state or federal matters. Thus an individual who wants to sue civilly for a federal matter has the option of proceeding in state or federal court. In addi- tion, someone involved in a lawsuit based on a federal statute or the federal Constitution can remove a lawsuit filed in state court to federal court.[8] All state criminal prosecutions take place in state courts.

CHAPTER 2 THE LEGAL SYSTEM IN THE UNITED STATES 41

jurisdiction

Either a court’s power to hear a case or a court’s authority over a geographic area.

original jurisdiction

A court’s power to hear a trial and accept evidence.

trier of fact

The decision maker at trial; could be a judge or jury.

appellate jurisdiction

A court&#x

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