by Jon Roland, Constitution Society

The Boston bombing suspect Dzhokhar Tsarnaev has been charged with multiple federal offenses, but none of them are authorized by the U.S. Constitution for offenses committed on state territory, as the acts in Boston were. If the federal courts were constitutionally compliant, they would be compelled to dismiss them all, and let the State of Massachusetts prosecute him under its laws.

The following is a summary of the main federal charges:

  1. Use of a weapon of mass destruction resulting in death and conspiracy.
  2. Bombing of a place of public use resulting in death and conspiracy.
  3. Malicious destruction of property resulting in death and conspiracy.
  4. Use of a firearm during and in relation to a crime of violence.
  5. Use of a firearm during and in relation to a crime of violence causing death.
  6. Carjacking resulting in serious bodily injury.
  7. Interference with commerce by threats or violence.
  8. Aiding and abetting.

Contrast this with the following, taken from the second of the unanimous Kentucky Resolutions of 1798, written by Thomas Jefferson, summarizing original understanding of the U.S. Constitution:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, “that 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 ;” therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled, “an act in addition to the act entitled, an act for the punishment of certain crimes against the United States;” as also the act passed by them on the 27th day of June, 1798, entitled, “an act to punish frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution,) are altogether void, and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

Actually, Jefferson and the Kentucky Legislature did overlook one: crimes committed by military personnel, and militia personnel while in federal service, under military law. But that is a kind of private law for the military, and not applicable to the general public, so the omission is understandable.

The only federal crime which might be a fit for the acts committed is treason, the punishment of which is authorized in Article III:

Section. 3.Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The bombing could be treated as “levying war”, and there would seem to be more than enough witnesses to the overt act, if not to seeing the Tsarnaev brothers actually planting or triggering a bomb.

But treason is not one of the charges in the indictment. We should ask why not.

Here is what was said in debate in the Tenth Congress, 1808 Feb 11, 24, Mar 1; Annals 17:108-27, 135-49, 159-50:

Conspiracy is an offence no where mentioned in the Constitution. … The power to punish conspiracy cannot be included with the class of incidental or resulting powers. … the people of the United States, by declaring that treason should consist only in levying war. &c., intended to proscribe every other species of it; and it may be questioned whether we can with propriety introduce another species of treason into our penal code under the name of conspiracy. … This crime called conspiracy, however odious, is in its nature so vague and indefinite, and liable to be proved by testimony of so suspicious a character, that I fear it would be dangerous to give it a place in our criminal code.

This argument prevailed, as representing original understanding of the Constitution of 1788 and amendments to it adopted in 1791, the Bill of Rights, concerning “conspiracy”. The only further source of authority for it would have to come from subsequent amendments. The closest one finds is the 14th Amendment, except that it only authorizes penal legislation applicable to state actors, not to private persons generally, and the offenders in this case were not state actors.

The authority cited for all of these charges is the Commerce Clause, interpreted as authorizing criminal penalties under the Necessary and Proper Clause, mainly based on the Supreme Court precedent in Wickard v. Filburn, 317 U.S. 111 (1942), but that case and others to the same effect were wrongly decided, as I have argued in several articles:

If the American people were being properly educated, it would be nearly impossible to impanel a grand jury that would indict on such charges, or a trial jury that would convict. Achieving that level and kind of education is the challenge before us.

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“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.”



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