The Commerce Clause and Federalized Crime: A Tale of Two Thieves

Crime control has become a federal cause célèbre. With the advent of modern modes of transportation, what had been considered primarily local concerns took on national dimensions. As that phenomenon occurred, Congress increasingly began to rely on the commerce power to enlarge federal criminal jurisdiction. The outer limits of commerce-based jurisdiction were recently tested in the Supreme Court in United States v. Lopez , a challenge to the Gun-Free School Zones Act. For the first time in nearly sixty years, the Court in Lopez held a statute unconstitutional because the regulated activity had an insufficient connection with interstate commerce. This article examines the development of commerce-based criminal jurisdiction from its most rudimentary to its most expansive forms. It then assesses the potential significance of Lopez as a check on seemingly limitless congressional power to federalize crime and explores the implications of the federalization movement itself.