This Essay is adapted from a panel discussion on federal police power, or the nonexistence thereof, and the relatively recent trend of enacting federal criminal statutes to impose punishment without proof of bad intent.
I am going to say very little about the general police power, not because it is uninteresting as a matter of constitutional law, but because it is a less-than-promising avenue for those seeking to curb federal overreach.
Hoping to scale back any significant amount of federal criminal law through constitutional challenges to the police power is like hoping the courts will repeal the New Deal. Now the New Deal might have been a really bad idea, (1) and it might have begun the transformation of the country into a gargantuan welfare state confounding the Framers' vision, (2) but the courts are not going to fix it. (3) After all this time, they also are not going to fix what they have written in poorly considered decisions about federal police power. Probably the best we can hope for is that courts will help to contain the law; they will not be rolling it back.
What I would like to address instead is the growing number of federal statutes that impose criminal punishment without requiring the government to prove bad intent. (4) The most obvious problem with intent-optional federal crimes is not that they are federal, but that they are crimes at all. They break the link between punishment and intentional misbehavior that most contemporary thinkers, not to mention the Founders' generation, found indispensable to the government's authority legitimately to impose criminal punishment. (5)
The breaking of this link is not as novel as one might think, however. It is just the flip side of the coin minted many decades ago, and that the law has unwisely come increasingly to accept. The "heads" side of this coin is our hesitation to impose punishment for bad behavior. The hesitation takes root in all manner of psychobabble excuses and in the view that criminals are really victims--victims of the latest manufactured brain syndrome, (6) or forces like racism, (7) capitalism, (8) bourgeoisie culture, (9) the "one percent," (10) and the other usual suspects. This zombie-like, volition-free view of criminals and crime has been in vogue since at least the 1960s. What we are seeing now is the "tails" side of the same coin: Being reluctant to impose consequences on bad behavior, we will now take the next logical step and affirmatively impose them on good behavior, such as producing useful stuff like energy (11) or farming on your own land. (12)
One way to justify criminal sanctions for such conduct is to exile the role of intent. The dominant cultural voices in academia, (13) the press, (14) and Hollywood (15) have been doing just that for years. When the importance, or even the existence, of personal responsibility has been hectored off the reservation of criminal law, we should scarcely be surprised to find that the space it used to occupy is now ready to be filled by something else--and that...