Constitutionalizing the Federal Criminal Law Debate: Morrison, Jones, and the Aba

As the number of federal criminal laws has increased over the past decade, so, too, has the intensity with which scholars debate the role of federal law generally. However, in their debate, the scholars focus largely on matters of legislative policy. They essentially ask the question, “How far should Congress go when creating new federal law?” Professor George Brown seeks to answer a different question. In this article, Professor Brown addresses the constitutional questions regarding federal criminal law. In essence, he attempts to answer not how far Congress should go, but, instead, how far it actually can go when formulating new federal law. Following the Lopez decision, it seemed that constitutional issues would become more prevalent in the federal criminal law debate. Although some scholars continue to treat the matter as one of legislative choice, Professor Brown argues that the recent decisions in Morrison and Jones require scholars to address the constitutional issues. He then offers a revised look at the debate—one that includes both legislative and constitutional issues.