6 Cornell Journal of Law and Public Policy 247 (1997) Originally published in 6 Cornell J.L. and Pub. Pol'y 247 (1996-1997)
This article contends that judicial and academic complaints about the overfederalization of crime largely have matters backwards. The image of a runaway national government increasingly taking away the enforcement of the criminal law from the States is essentially false. The available evidence indicates that the national government's share in the enforcement of criminal law has been actually diminishing for more than the last half century. The national government does have concurrent authority over a greater range of criminal activity now, including much violent street crime. But, contrary to Lopez and the conventional wisdom it embraces, this expanded authority does not transgress constitutional principles of federalism. In fact, constitutional and policy considerations affirmatively support the opposite conclusion that the national government may (and probably should) exercise more authority, especially with respect to the street crime that plagues poor urban areas. It seems that crime, especially street crime, has been underfederalized. Whether due to disagreement with the merits of existing crimefighting priorities, unstated concerns over civil liberties, or undue sensitivity to the parochial interests of the federal judiciary, the conventional legal wisdom overlooks the lofty appeal of the concurrent national role we have outlined. Crime-fighting efforts, in general, have the unequivocal support of the public nationwide. Due to this nationwide consensus and the concomitant popular support for joint state and federal efforts, crime is one arena in which cooperative federalism can work best. Crime limits the opportunities of both its actual and potential victims, particularly in the poor urban areas where we argue national support should be concentrated. Federalism-based considerations suggest that the national government should increase its share of enforcement efforts in a way that advances its historic and inspiring role of promoting equality of opportunity along income and racial lines.
Dayton, A. Kimberley, "The Underfederalization of Crime" (1997). Faculty Scholarship. 137.