Journal Title
North Dakota Law Review
Volume
99
Issue
2
First Page
379
Document Type
Article
Publication Information
2024
Abstract
Studies of criminal laws tend to focus on statutory, regulatory, and common law offenses. Discussions of constitutional law often revolve around abstract, concise statements, particularly those in, or which mirror, the Federal Constitution. In the interest of exploring new territory in both fields, this Article introduces and analyzes a family of crimes that has gone unanalyzed until now: criminal laws that appear in the text of the federal and state constitutions. As it turns out, there are a host of criminal laws contained in the federal and state constitutions, ranging from widespread crimes against treason, bribery, criminal contempt, and corrupt solicitation, to niche offenses, including prohibitions on certain forms of net fishing, the theft of legislative bills, stem cell and cloning practices, and bingo-related crimes.
This Article presents the first survey and taxonomy of these constitutional crimes. Along the way, I uncover nuances that have previously gone unnoticed-such as an unexplored set of state constitutional treason provisions that are significantly broader than the United States Constitution's treatment of the crime. I address parallels and patterns between the states highlighting common constitutional crimes and reasons for their inclusion in constitutions rather than the statute books. Beyond the survey and exploration, I conduct an initial, higher-level analysis of constitutional crimes, including their implications for research into constitutional drafting, constitutional interpretation, the democratic legitimacy of federal and state constitutions, and zombie constitutional provisions. Still, much remains to be said about constitutional crimes. To that end, the Article concludes with a research agenda that identifies additional aspects of constitutional crimes that are worth exploring.
Recommended Citation
Michael L. Smith, Constitutional Crimes, 99 N.D. L. Rev. 379 (2024).