The Supreme Court has constitutionalized virtually every aspect of the law of criminal procedure. Yet it has left substantive criminal law alone, by and large. Why is that? Does that make sense? We’ll explore what the constitution has, or might have, to say about basic issues in substantive criminal law. What, in other words, are the constitutional constraints on the state’s power to punish?
We’ll investigate the constitutional limits of both the general part of criminal law (which deals with the formal and substantive prerequisites of criminal liability-like the principle of legality, mens rea, actus reus, unlawfulness, and guilt-as well as the consequences of that liability-criminal punishment of various shapes and sizes) and its special part (where specific crimes are defined).