Power of Governments Or Sovereigns To Create Substantive Criminal Law

• Jurisdiction: Maryland

I. Power of governments or sovereigns to create substantive criminal law

A. Limitation under substantive due process

The power of a government or sovereign to create substantive criminal law is criminal jurisdiction in its broadest sense. Subject to constitutional limitations, the legislature has broad power to define what acts constitute a criminal offense. Rice v. State, 311 Md. 116, 126 (1987). Accord Dawson v. State, 329 Md. 275, 283 (1993); Greenwald v. State, 221 Md. 235, 240 (1959).

Substantive due process is a limitation on the federal government, under the Due Process Clause of the Fifth Amendment, and a limitation on state and local governments, under the Due Process Clause of the Fourteenth Amendment. Substantive due process limitations typically involve the right of privacy. See, e.g., Lawrence v. Texas, 539 U.S. 558, 577-78 (2003) (right to have sexual relations); Loving v. Virginia, 388 U.S. 1, 12 (1967) (right to marry); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (right to procreation); Prince v. Massachusetts, 321 U.S. 158, 168-69 (1944) (government may, in its interest of the welfare of children, restrict parental authority); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (right to educate one's children); Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (right to educate children in a foreign language); Smith v. California, 361 U.S. 147, 149-50 (1959) (right to freedom of expression in books).

B. Limitation under federalism

Under federalism, there is an issue of the power to control conduct exclusively by the federal government or exclusively by state governments, versus power shared by federal and state governments.

1. Federal government

Federal statutes are enacted by Congress.

Congressional power to enact laws that control conduct in federally owned and controlled territory

The federal government has the power to enact laws that control conduct in federally owned and controlled territory including (a) the District of Columbia, U.S. Const. art. 1, § 8, cl. 17; (b) U.S. territories, e.g., Puerto Rico, id. art. IV, § 3, cl. 2; (c) federal enclaves within states; and (d) waters up to 12 miles beyond the United States, pursuant to international laws and treaties.

Federal Assimilative Crimes Act

In federal enclaves within states, e.g., military installations, federal buildings, national parks and forests, the Assimilative Crimes Act, 18 U.S.C. § 13, adopts, as federal law, the substantive criminal law (both statutory law and common...