Introduction

Constitutional Sources of Criminal Jurisdiction

Introduction

Every criminal prosecution in the United States raises two constitutional questions that are easy to run together. The first asks whether the government that wrote the prohibition had power to proscribe the conduct, meaning power to make it a crime in the first place. The second asks whether the court hearing the case has power to adjudicate it, meaning power to try the accused and enter judgment. Both questions use the word jurisdiction, which in legal speech covers a government's authority over the persons and things within its reach and also a court's power to decide a case.¹ A prosecution needs an affirmative answer to each, and the two answers come from different parts of the constitutional design.

The same act can raise both questions twice over because the Constitution set up two governments that rule the same people. In Printz v. United States the Court called this arrangement a system of "dual sovereignty": the states surrendered many powers to the new national government but kept "a residuary and inviolable sovereignty."² The Framers' experience under the Articles of Confederation had taught them that using the states as instruments of federal governance was ineffectual and provoked conflict between the two levels, so they gave each government its own direct authority over individuals, who thereby hold two political capacities, one state and one federal.³ On the federal side, that authority reaches only as far as the Constitution grants it. Article I, § 8 lists the legislative powers Congress holds, and the Constitution gives Congress only these discrete, enumerated powers rather than a general authority to govern.⁴ The states hold the remainder, as the Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."⁵ When the laws of the two governments collide, Article VI settles the contest by making the Constitution, the federal laws made in pursuance of it, and treaties "the supreme Law of the Land," binding state judges despite any contrary state law.⁶

This structure answers a practical problem. If two governments could each punish the same conduct with no rule for sorting their authority, nobody could tell which government was entitled to punish, and neither could be held responsible for its choices. Delegating enumerated powers to the nation, reserving the rest to the states, and making valid federal law supreme assigns each government a defined sphere. A citizen can then identify who may punish, and each government answers to its own voters for the criminal laws it writes, because a state's government remains accountable to its own citizens.⁷ This chapter takes up the legislative question first, asking where Congress's power to define crimes comes from and what limits that power, and then turns to the states' reserved power and the way the Supremacy Clause resolves collisions between the two. The judicial question follows, covering how the power to adjudicate is divided between federal and state courts, and the chapter closes by showing how both questions operate together when one act violates federal and state law. The legislative question begins from a single premise: the federal government has only the powers the Constitution delegates to it, while the states hold a general power that needs no enumerated source, and the next section starts there.