Where do you look to see if something you want to do violates some criminal law? The answer is that criminal law originates from many sources. One major source of criminal law is the federal and state constitutions. Another source is the state statutes and federal congressional acts. A statute is a law that has been created and enacted by a legislature. A criminal law can also come from administrative agencies that make state and federal administrative rules. Administrative rules are instructions created by government agencies to explain how laws will be carried out. Other criminal laws, called case law, originate from appellate court opinions written by judges.

Constitution of the U.S.

The United States Constitution recognizes only three crimes: counterfeiting, piracy, and treason. Nevertheless, it plays one of the most significant roles in the American criminal justice system. First, the Constitution establishes limits on certain types of legislation or substantive law. Second, it provides significant procedural constraints on the government regarding how to prosecute individuals for crimes. Third, the Constitution established federalism (the relationship between the federal government and state governments) and required the separation of powers between the three branches of government (the judicial branch, the legislative branch, and the executive branch). Last, it limits Congress’s authority to pass laws not directly related to either its enumerated powers (powers listed in the Constitution) or implied powers (powers inferred but not listed).

Constitutional Limitations on Criminal Law and Procedure

The drafters of the federal Constitution were very concerned about two historic cases of abuse by the English Parliament. Those abuses are the ex post facto laws and bills of attainder. Therefore they prohibited Congress from passing these types of laws by adding this limitation in the original body of the Constitution. (See Article I Section 9 of the Constitution.) Ex post facto laws are retroactively applied, such as new punishments retroactively increased. Bills of attainder are laws that are directed at named individuals or groups. They have the effect of declaring people guilty without proper trial.

Ex Post Facto Law Example:

Imagine you and your friends are playing a board game, and there’s a rule about a certain move being allowed. Now, halfway through the game, the rules suddenly change, and the new rule says that the move you just made is now forbidden, and you’ll lose points for it. That’s a bit like an ex post facto law. It means a law that retroactively changes the consequences of an action after it has already been taken. In a fair game, rules should be clear from the start, just like laws should be known before you break them.

Bill of Attainder Example:

Let’s say your school has a rule that anyone caught cheating on a test will get extra homework as punishment. Now, imagine one day the principal decides that one specific student is not allowed to participate in any extracurricular activities, like sports or clubs, without any trial or hearing. This is similar to a bill of attainder. It’s a law (or in this case, a school rule) that targets a specific individual or group without giving them a fair chance to defend themselves. Just like in school, everyone should have a fair process before facing punishment.

These examples simplify the concepts to make them more relatable, but they capture the essence of how ex post facto laws and bills of attainder can impact fairness and justice.

State Constitutions

States’ constitutions, similar to the federal constitution, set forth the general organization of state government and basic standards governing the use of governmental authority. Although the federal constitution is supreme because of the Supremacy Clause, state constitutions are still significant. State constitutional rules are supreme when compared to other state legal sources such as statutes, ordinances, and administrative rules. The federal constitution sets the floor of individual rights. However, states are free to provide more freedoms and protections that are not granted by the federal constitution.

Rule of Law

One of the key features of the American legal system has been its commitment to the rule of law. Rule of law is the belief that everyone is equal before the law and that the same set of laws applies to everyone (Feldmeier & Schmalleger, 2021). The rule of law is a fundamental concept that ensures a fair and just society. It means that everyone, regardless of their position or power, is subject to the same set of laws. In a society that upholds the rule of law, laws are clear, predictable, and applied consistently. This principle is crucial because it protects individuals from arbitrary decisions and ensures that justice is impartial. It promotes equality and accountability, preventing the abuse of power by those in authority. Understanding and respecting the rule of law is essential for citizens as it forms the backbone of a democratic society, fostering trust and promoting a sense of security and justice for all.

For college students, an example that illustrates the rule of law is the concept of academic integrity. In a university setting, there are clear rules and regulations regarding plagiarism, cheating, and other forms of academic misconduct. The rule of law in this context ensures that all students, regardless of their background or status, are held to the same standards. Professors and academic institutions apply these rules consistently to maintain fairness and integrity in the evaluation of students. Adhering to academic integrity principles upholds the rule of law within the educational system, fostering an environment where everyone is accountable for their actions and academic achievements are based on a level playing field.

“I firmly believe in the rule of law as the foundation for all our basic rights.”

• Justice Sotomayor

Watch the following video to learn the far-reaching effects of the rule of law [Streaming Video].

Licenses and Attributions for Sources of Criminal Law: Federal and State Constitutions

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“Sources of Criminal Law: Federal and State Constitutions” is adapted from “3.3. Sources of Criminal Law: Federal and State Constitutions” by Lore Rutz-Burri in SOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, and Shanell Sanchez, licensed under CC BY-NC-SA 4.0. Modifications by Sam Arungwa, revisions by Roxie Supplee, licensed CC BY-NC-SA 4.0, include revising for clarity and adding original content.