Alablawg

Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Wednesday, March 08, 2006

The Church Arsons and the Feds?

Among the many questions arising from the arrests is this one: Why are these kids going to be tried in federal court? They live in Alabama and the fires were all in Alabama, so what exactly is the federal interest here? This is really two questions. First, what gives the feds the power to punish this crime? Second, why do they want to exercise that power?

As for the power, we need a bit of history. Long ago, folks used to think the federal government was one of enumerated powers. That meant that it only had those powers that the Constitution explicity gave to it and those powers necessary to carry out the expressly granted powers. If that was still the rule, this would not be a federal case. The Constitution does not give Congress the power to make general criminal laws like the arson statute in this case. Go ahead, read the Constitution, you'll see.

Congress did not like this limitation and had many battles with Scotus over whether or not Congress had exceeded its powers. One power in particular became the center of the fight. That is the power to regulate interstate commerce. Congress passed lots of laws it said regulated interstate commerce, and often Scotus said no they don't. Finally FDR threatened to pack the court if Scotus did not change its ways and Scotus gave up and said that Congress would get to decide what did or did not impact interstate commerce (whether the threat caused the change of heart is a matter of dispute).

The result? Congress gets unlimited powers because Congress says everything affects interstate commerce. Whether it is growing wheat on your own farm to feed to your own livestock, or taking medications grown within your state and prescribed by your doctor according to state law, or, as in this case, burning a church that receives Sunday School material from out of state, it all affects interstate commerce because Congress says it affects interstate commerce.

Thats right, the feds get to prosecute this case because the Sunday School material came from out of state.

So why would they want to exercise that power? The offense was in Alabama, by Alabamians, against Alabamians. Prosecuting a crime costs time and money. So surely there must be some compelling national interest here? Or else justice herself would be threatened in the absence of federal prosecution?

More on this in the next post.