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I've heard a number of times now that the U.S. Constitution regulates the government and not private entities. This is why, for example, private organizations can limit free speech but the government cannot.

I got to thinking: Is murder unconstitutional? Obviously, I know of no state that allows murder, but would anything in the U.S. Constitution bar one private person from taking the life of another private person?

Again, murder is both illegal and immoral, but to ensure I'm following just how far the Constitution does not regulate private persons, would the U.S. Constitution alone fail to prohibit murder? It's wrong and illegal, but is it unconstitutional?

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    You might be missing a distinction between constitution and statute. I did not find a mention of murder in either of two state constitutions l looked at. It is the function of a constitution to set up the framework of a government and, in the U.S., to limit its powers. Both state and federal statutes make murder in various contexts a crime. The constitution does make murder by the government unconstitutional if it amounted to cruel and unusual punishment or punishment without due process. Mar 21, 2023 at 22:17
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    Some things that were historically murder are not murder now.
    – ohwilleke
    Mar 21, 2023 at 23:11
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    @Someone For example, it was murder for a wife to kill a husband in self-defense if he was trying to rape her, but it is not now. Similarly, "stand my ground" laws make killings that would otherwise be murder into killings that are not murder. Killings by a solider that are war crimes even when made under military orders were previously not murder and are murder now.
    – ohwilleke
    Mar 22, 2023 at 0:21
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    @user71659 preambulatory material such as that typically has no direct force of law.
    – phoog
    Mar 22, 2023 at 5:07
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    There are several states where to this day there is no statutory definition of Murder. That doesn't make Murder legal, but rather, the fact that the state has a strong case law definition of murder, that the legislature never wrote a law that defines Murder (they have written laws on the punishment thereof). Some of these states have had case law on the matter that pre-dates the Declaration of Independence.
    – hszmv
    Mar 22, 2023 at 13:29

5 Answers 5

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The Constitution does not define any crimes (except for an explicit limit on what can be considered 'treason.') It places limits on what penalties the government may apply for crimes and how crimes are tried in court, but it does not itself actually create any criminal offenses. Rather, state and federal law do that.

Having said that, if a state government creates a crime of murder (which, obviously, they all do,) the Equal Protection Clause of the 14th Amendment does require that that law protect all people within the jurisdiction of that state. That is, a state cannot make a law criminalizing the murder of a white person, but not of a black person, for example. States can't just pick and choose who is protected by their laws. It would not violate the U.S. Constitution if a state completely decriminalized murder, though. It's exceptionally unlikely to happen, but it would not be a violation of the Constitution.

Depending on exactly what you mean by 'murder,' it could be argued that murder by the government is unconstitutional, though. The 14th Amendment bans states from depriving anyone of life without due process of law:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Similarly, the 5th Amendment provides an equivalent protection from the federal government:

No person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law

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    It is true that all states have statutes prohibiting murder, theft and discrimination. Does Equal protection compel states to have such statutes, or can states constitutionally give equal disregard to the lives of those within its borders?
    – user6726
    Mar 22, 2023 at 16:37
  • @user6726 It does not compel the states to have such statutes. States are free to eliminate their laws against murder, theft, etc. if they choose to do so. Granted, they can't do anything about the federal laws that may also criminalize the same behavior. And the politicians who vote to eliminate the state laws against murder would likely lose their jobs very, very quickly, as that doesn't seem like something that's likely to go over well with the electorate. But it is not unconstitutional.
    – reirab
    Mar 22, 2023 at 19:11
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    The constitution defines a single crime against the state: Treason.
    – Trish
    Mar 22, 2023 at 19:14
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    @Trish Sort of. That's mentioned in the first sentence already, but it's really more a limitation on what the government can consider to be treason than the creation of an actual crime. There is no Constitutionally-defined punishment for treason, but rather just limitations on what the government can consider to constitute treason and what punishments it may apply. It would still be perfectly constitutional for the government to define no crime of treason at all, for example. Congress just can't define treason as being stupid stuff like speaking out against the government.
    – reirab
    Mar 22, 2023 at 19:20
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    @Joshua Right, but that's under actual federal criminal statutes. It's still not a crime created by the Constitution itself, but rather a federal criminal statute for those who violate civil rights under color of law. Current court precedent holds that state governments are a "separate sovereign" from the federal government (or another state government,) so both can prosecute under their own criminal statutes without violating double jeopardy.
    – reirab
    Mar 23, 2023 at 15:10
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The U.S. Constitution sets up the structural framework of the government and the restraints upon it.

While much of the Constitution consists of a general framework for the federal government’s form and functions, a central, and perhaps counterintuitive, purpose of the Constitution is to restrain the government, by, among other things, immunizing certain values and principles from government interference.

The Constitution Annotated: "Overview of Basic Principles Underlying the Constitution"

The Constitution does not have primary rules of obligation directed at individuals. It contains what H.L.A. Hart refers to as secondary rules of change and recognition. There is nothing in the Constitution prohibiting murder.

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  • The Constitution does plainly impose restraints on the government from making laws which place certain prohibitions on individuals. If a law was passed that repealed other prohibitions on individuals, such as those on murder, might the Constitution not affect the ability for that law to stand?
    – Will
    Mar 22, 2023 at 12:53
  • @Will what would that even mean though. It can be unconstitutional to have a certain law, but how can it be unconstitutional to "not have" a certain law? Mar 22, 2023 at 13:06
  • @TimSeguine well now that the affirmative prohibition exists in law it will require a new law to repeal it. Whether this exists in US constitutional law is an honest question from me. I'm fairly sure that at least some countries constitutionally require their governments to take positive actions (such as by enacting law) to protect rights of the individual, but the US might not be one of those.
    – Will
    Mar 22, 2023 at 13:59
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    @ScottishTapWater The federal government largely doesn't criminalize murder, federal murder statutes only cover murder under certain circumstances like against federal agents or in US maritime jurisdiction. Almost all actual punishment of murder is under state law, and territories also create their own criminal codes separate from the USC. Mar 22, 2023 at 22:36
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    I don't think this answer can be the whole story, given that the 18th Amendment directly prohibited the manufacture of "intoxicating liquors" "for beverage purposes". (That amendment has since been repealed, but it seems to demonstrate that the Constitution doesn't categorically avoid "primary rules".)
    – ruakh
    Mar 23, 2023 at 2:19
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The only crime defined in the Constitution itself is treason. There are statutes defining “murder,” but those could be changed or repealed. There is also a common-law definition of murder, which some judges might rule applies in the absence of any statute superseding it. (This theory has applied to some other areas of law, but so far as I know, this situation has never arisen with murder.)

As others have mentioned, the Fourteenth Amendment does prohibit both the federal and state governments (and by extension, other local governments created by either) from depriving any person of life “without due process of law.” Government agents such as police, though, are allowed by law to kill people under some circumstances, such as when they reasonably feel that they’re in danger, and this is deemed due process of law.

The Fourteenth Amendment also guarantees each person equal protection of the law, which might be the basis of an argument that it’s unconstitutional to allow some people to be murdered with impunity but not others. Historically, this did not force states to do anything about lynchings, though. There is also a prohibition on “cruel and unusual punishment” that, some have argued, prohibit execution at least for some offenses where it would be disproportionate. Some activists would like the courts to declare that capital punishment or abortion are always unconstitutional, but the courts have declined to do so.

There have also been a small number of times in history—most famously, the Nuremberg Trials—where people whose government authorized them to commit genocide have been tried for crimes against humanity. There is no way to force a nuclear power to submit to such a tribunal (although this has not always stopped the International Criminal Court from issuing symbolic indictments it has no power to enforce).

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you are simply confusing two bodies of law, criminal law and constitutional law... moreover, States generally as sovereigns often grant themselves abusus over their subjects or citizens, i.e. the right of life and death (over one thing, the republics often inherit this right of slavery over people of law...

although they can no longer call themselves "absolute owner" or sovereign of people and land... however this could be precisely a case, a constitutional amendment aimed, not at abolishing, but at prohibiting the use of this right to a republic, because these citizens are not things, personal property, but human beings by right, free and who must remain so

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    – Community Bot
    Mar 22, 2023 at 15:05
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Murder by a private citizen is not unconstitutional, in the same way the same way that it doesn’t violate Roberts Rules of Order, or the rules of the FIDE (International Chess Federation).

Crimes and government structure are entirely separate areas of what is loosely known as The Law, with very little overlap.

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  • The point is well made, but I suspect that murder would violate rule 12.1: "The players shall take no action that will bring the game of chess into disrepute."
    – phoog
    Mar 29, 2023 at 9:50

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