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10 Harv. J. L. & Pub. Pol'y 117 (1987)
Federal Courts, Federal Crimes, and Federalism

handle is hein.journals/hjlpp10 and id is 129 raw text is: ARTICLES
The forthcoming celebration of the bicentennial of the fram-
ing of the United States Constitution provides us all with a spe-
cial opportunity to re-examine our national charter and the
unique federal system it established. An important debate con-
cerning the need to refer to the intent of the Framers in inter-
preting the Constitution already is under way.' That there
should be a debate over this issue seems curious to me, because
judges and lawyers always begin their analysis of any document
with an inquiry into the intention of the parties. It would seem
especially important that they do so with a document as signifi-
cant as the Constitution.
In this Article, I open the discussion on a different front,
hoping perhaps to trigger another debate. I begin with the
proposition that the enlarged criminal jurisdiction of the fed-
eral courts has led to an increasing federalization of the crimi-
nal law. Whether that proposition invokes a challenge to the
system of dual sovereignty established by the Framers of our
Constitution is the question I propose for debate. The discus-
sion should be of particular interest to those concerned with
maintaining the traditional functions of the states and the vital-
ity of the Tenth Amendment.2 Historically, of course, the de-
tection, apprehension, prosecution, and punishment of those
accused of anti-social conduct have been considered state func-
tions of the most basic kind.
As I see it, the growing use of the federal courts for criminal
prosecutions is attributable to three factors: ongoing congres-
sional interest in the development of new criminal legislation,
expansive interpretation of federal criminal statutes by the
* Judge, United States Court of Appeals for the Second Circuit; Adjunct Professor,
New York Law School.
1. See, e.g., Brennan, Stevens & Meese, Addresses-Construing the Constitution, 19 U.C.
DAvis L. REv. 2 (1985).
2. The Tenth Amendment provides: The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States re-
spectively, or to the people. U.S. CONsT. amend. X.

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