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I'm curious about the constitutional basis for federal criminal law (in America). The necessary and proper clause seems to be such a basis: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." It seems to me that the necessary and proper clause allows Congress to enact laws that, in following with the purpose of the constitution as found in the preamble, "establish Justice... and secure the Blessings of Liberty to ourselves and our Posterity."

My first question is, is this the basis for federal criminal law?

I am also wondering, is there is a solid originalist argument/constitutional basis for the federal government to prevent states from legalizing murder (that does not involve substantive due process)? I have not been able to find such an argument.

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    These seem like two separate questions that should be in separate posts. Dec 21, 2021 at 22:36
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    Please remove one of the two rather separate issues from this question, and if you wish, ask it as a separate question. I would suggest removing the 2nd one, as the answer so far given applies only to the 1st question asked, about the basis for US Criminal laws. Dec 21, 2021 at 23:09
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    Are any states attempting to legalize murder? You cannot prevent that which nobody attempts.
    – phoog
    Dec 21, 2021 at 23:09
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    @phoog I wonder if "legalize murder" is being used to mean "permit abortion" here? Dec 21, 2021 at 23:36
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    To the best of my knowledge, no state has ever purported to legalize murder, although different states define murder differently, and what is murder in one may not be in another. Perhaps the most extreme difference was that prior to the US Civil War, some slave states did not define killing a slave as murder. Dec 21, 2021 at 23:39

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The main federal murder statute, 18 USC 1111, applies only to murders committed in the special maritime and territorial jurisdiction of the United States. This consists of several different kinds of places and situations, and the authority of Congress to make criminal laws for each of them derive from different sections of the Constitution.

Let's go through them:

(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

Article I, Section 8: "The Congress shall have Power [...] To define and punish Piracies and Felonies committed on the high Seas..."

(2) Any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line.

Maybe "high seas" again? Or "interstate commerce"? Not quite sure.

(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

Article I Section 8: "[...] to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"

Article IV Section 3: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"

(4) Any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States.

"Territory or other Property" and/or "high Seas".

(5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

Presumably a modern extension of "high seas".

(6) Any vehicle used or designed for flight or navigation in space and on the registry of the United States [...].

Ditto.

(7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.

Probably "high seas" again as this was the main historical example of "a place outside the jurisdiction of any nation".

(8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.

Not quite sure. Possibly "to regulate Commerce with foreign Nations".

(9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act— (A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and (B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.

"Territory and other Property" again.

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    That's not the only federal murder statute.
    – phoog
    Dec 21, 2021 at 23:10
  • @phoog: True, edited to "main federal murder statute". But I think it is a good example of what OP wanted to know. Feel free to discuss others in another answer if you like. Dec 21, 2021 at 23:13
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    I'm not sure it would add much. The other statutes are largely concerned with murder of federal officials and foreign diplomats; the former may flow from the necessary and proper clause while the latter seem like an example of "offences against the law of nations." It's also worth noting that constitutional authority for any given statute doesn't have to flow from only a single clause of the constitution.
    – phoog
    Dec 21, 2021 at 23:47
  • True. Most of the items listed in the answer as coming from the "high seas" provision are probably also authorized by the "regulate foreign commerce" provision, for example. Dec 22, 2021 at 15:43
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It seems to me that the necessary and proper clause allows Congress to enact laws that, in following with the purpose of the constitution as found in the preamble, "establish Justice... and secure the Blessings of Liberty to ourselves and our Posterity."

My first question is, is this the basis for federal criminal law?

No. The necessary and proper clause requires that an action be necessary and proper to carry out some other power expressly granted to Congress, either in Article I, Section 8, or elsewhere in the constitution.

I am also wondering, is there is a solid originalist argument/constitutional basis for the federal government to prevent states from legalizing murder (that does not involve substantive due process)?

No. Indeed, states can and do legalize the intentional killing of another human being under various circumstances, such as self-defense, defense of one's home, assisted suicide, termination of life support, and the death penalty. The killing of another human being through negligence that does not amount to criminal negligence is also generally decriminalized.

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