what if there was not a law against murder?

If one of the 50 states did not have a law against murder on the books, would the federal government be obligated to do anything about it?

just wondering.

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12 Comments

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12 responses to “what if there was not a law against murder?

  1. killer

    is there a state where this exists? and isn’t murder a capital (federal) crime anyway?

  2. Killer- “capital” does not refer to the jurisdiction of the crime, but to the gravity of the offense. Capital crimes are those punishable by death.

  3. Kelly W

    I would expect that the Supremacy Clause in Article 6 would apply here. Besides, whether obligated or not, I would bet next week’s coffee money that the feds would be on that like white on rice!

  4. killer

    my bad on the misuse of “capital”

    honestly, someone would be all over this….

  5. Kelly W

    I am sure someone would be all over this, but is there a constitutional obligation?

  6. that’s my point, and I’m positing that there is no constitutional obligation.

    charges that I recall feds having brought in the past have been because the victims “civil rights” were violated — I suppose losing your life would fall in the same category, though those specific charges may have been brought by federal prosecutors when murder was charged locally (to avoid double-jeopardy).

    I wonder if New Hampshire (1 murder per 100,000 people) dropped murder from their criminal code; would it have any impact on the occurrence? do people stop short of killing each other simply because it’s against the law? I think it would be a fascinating thing to try and observe.

    of course, I wouldn’t try it in Maryland (9.7 murders per 100,000) — sounds like we’re one of the most unhinged states (second only to Louisiana).

  7. Kelly W

    I am going to pose this question to my favorite Con law expert.
    As for whether people stop short of killing each other simply because it is against the law- I think not. In fact, murder is in many places a common law offense. Even societies which have no formal written penal code do not accept murder.

  8. If one of the 50 states did not have a law against murder on the books, would the federal government be obligated to do anything about it?

    No, and they may not be able to do anything about it. (Even if they were so obligated, a citizen couldn’t sue to force Congress to make that type of law.)

    Congress can do anything that is within its powers in Art. I, Sec. 8 (such as coin money, regulate interstate commerce, develop a patent system). Generally, the protection of the health, safety, and welfare of the people is left up to each State. Now, in theory, Congress is only allowed to do those things listed in Art. I, Sec. 8. A lot of interpreations (since the 1930s), however, have given a very broad definition to “regulate interstate commerce,” so that anything that possibly affects the economy, even tangentially and negligibly, becomes “interstate commerce.” This is how Congress gets away with outlawing drugs, for example.

    So, before the 1930s, the answer would be: “No, and, even if they wanted to, they wouldn’t be able to.” Since then, however, Congress has been able to federalise the law. (Up to you whether you think it’s a good thing, a bad thing, or it depends on the circumstances.)

    Now, as for double jeopardy: If you’ve seen a movie starring Ashley Judd by the same name, there’s actually a legal error in there. She was convicted (IIRC) in Washington State of killing her husband, and (spoiler alert!) followed her pretending-to-be-dead husband to Louisiana to off him, under the theory that DJ would prevent her from subsequent prosecution. DJ only applies within a jurisdiction: for example, the state of Washington could not subsequently prosecute her, having done so already; however, the state of Louisiana could do so. The theory is that the laws of one jurisdiction are not vindicated through the enforcement of the laws of another jurisdiction. Each state is a jurisdiction, as is the federal government, and each Native American tribe. You can, therefore, be tried twice for the same crime (i.e. same underlying set of facts) under both federal law and state law.

    That becomes important because, if Congress were to enact a federal murder statute, it would apply not just in the state that outlawed it, but all states, and all murderers could be tried under both state law (if applicable) and federal law. In reality, the feds would probably only prosecute murders in the states without such laws.

    I imagine that a federal anti-murder law would look something like this: “It shall be unlawful to use an article that has been transmitted in interstate commerce, including but not limited to knives, guns, rope, machetes, and prescription and over-the-counter pharmaceuticals, to commit a homicide. A homicide so committed shall be punishable [insert murder 1, murder 2, etc here].”

  9. I knew Bridget would have an answer!

  10. theobromophile… thanks for the informed and reasoned response — we’re not used to that around here.

    made me wonder for a minute if I could skirt such a federal law by killing someone with my bare hands… of course, I have a job and contribute to the economy, so I’d probably be covered by “interstate commerce” as well.

  11. You’re welcome. 🙂 Thank Kelly for dragging me over here.

  12. Pingback: bizzarre. fascinating. « name your fear

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