Most substantive criminal law is legislative law. State legislatures and Congress enact laws that take the form of statutes or congressional acts. Statutes are written statements enacted into law by an affirmative vote of both chambers of the legislature and accepted (or not vetoed) by the governor of the state or the President of the United States. State legislatures may also create legislative law by participating in interstate compacts or multi-state legal agreements. Ordinances are laws created on a small level by local governments. For example, many cities have local ordinances regarding noise and parking.

State’s Authority to Pass Criminal Laws

States are sovereign and autonomous, and unless the Constitution takes away state power, the states have broad authority to regulate activity within the state. Most criminal laws at the state level are derived from the state’s general police powers, or authority, to make and enforce criminal law within their geographic boundaries.

Police power is the power to control any harmful act that may affect the general well-being of citizens within the geographical jurisdiction of the state. A state code, or state statutes, may regulate any harmful activity done in the state or whose harm occurs within the state. This state-level authority is why we see variations in laws from state to state.

For instance, the legal drinking age is set at 21 years old at the federal level, however, individual states have the authority to set their own specific laws and regulations regarding alcohol consumption. Some states may allow individuals who are 18 years old or older to consume alcohol in specific circumstances, such as with parental supervision or in a private setting. On the other hand, other states strictly enforce the federal minimum drinking age of 21. This example illustrates how criminal laws can vary between states, reflecting the states’ rights to set certain legal parameters within the broader federal legal framework.

Congress’s Authority to Pass Laws

The power of Congress to make laws comes from specific jobs and responsibilities given to it in the Constitution. These powers can either be clearly listed in the Constitution or understood from its words. If Congress can’t connect a law to one of these powers, it might be called invalid.

One kind of power is “enumerated powers,” which is the ability to control trade between states, as stated in Article I Section 8 of the Constitution. Courts have said that “interstate commerce” doesn’t just mean things moving between states but also includes any activity, even if it’s only happening in one state, that affects trade between states. This is called the “affectation doctrine,” and it means Congress can make laws about things closely related to interstate commerce. Even though there are some limits, Congress has used this power to make laws about crimes like carjacking, kidnapping, wire fraud, and environmental offenses.

Another kind of power is “implied powers.” These are powers that Congress needs to have to do the jobs listed in the Constitution. The Constitution says in Article I Section 8 that Congress can make laws that are “necessary and proper” for doing these jobs. This is sometimes called the “expansion clause” because it expands what Congress can do. Because of implied powers, Congress can pass laws and regulate many activities. However, each law still has to connect to one of the listed powers. If Congress goes too far, the Court can say the law is not allowed. Even though Congress has a lot of power, it’s still less than the power states have to make their own laws.

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“Sources of Criminal Law: Statutes, Ordinances, and Other Legislative Enactments” is adapted from “3.4. Sources of Criminal Law: Statutes, Ordinances, and Other Legislative Enactments” 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 substantially rewriting and editing for clarity.