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Abstract

The first area is the substantive criminal law, especially at the federal level. In the following pages, this Article will discuss, from a Neo-Federalist perspective, the wide variety of laws found mostly in Title 18 of the United States Code that form our federal criminal law. This Article will suggest that there are both constitutional and pragmatic needs to reexamine what behavior should be punished on a federal level.

The second area is the law regarding criminal procedures. This Article will suggest, from the perspective of Popular Sovereignty, that the current trend to jealously guard jurisdictional prerogatives is not constitutionally required, and may, in some cases, be constitutionally prohibited. While recognizing that there may be problems with establishing procedures for greater cooperation between the federal government and the state governments in the field of criminal prosecution, this Article will tentatively suggest possible solutions to these problems. In addition, this Article will discuss the practical and theoretical impact on the field of criminal procedure of the assumption that the Bill of Rights was designed to protect the rights of the People rather than the rights of individuals.

In both areas, the discussion in this Article will cut against the modern trend. Rather than proposing turning over our criminal justice system to Washington, this Article will argue that the Framers of the Constitution intended a role for both the federal and the local governments. Likewise, while there are times when conflict between state and federal government is necessary and desirable, the two should cooperate in most situations. As an introduction to the discussions outlined above, this Article begins by examining the proper role and jurisdiction of the states and the national government in promulgating and enforcing the criminal law.

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