The Odd Consequences of the Separation of Powers: Common Law Crimes

So it’s been a busy few days here. In lieu of a longer post, which would be the norm, this note on an old and strange legal principle, but one that’s been slightly useful lately:

We’re all familiar with the “separation of powers,” and the common implications of the theory. Namely, the President can’t pass a law; the legislature can’t enforce it; and the judiciary’s powers are derivative of both.

But the reality of the separation of powers is more complicated. A federal court (or state court) can affirmatively make new law by invalidating a statute, or by limiting it (e.g., voiding it as applied), or extending it (e.g., finding an implied right of action under Bivens) on constitutional grounds. Further, in the civil context, judges continue to craft the largely judge-made common law, with its roots in Britain, working within its ancient limits. But it offends the separation of powers and violates due process to convict a man of committing a crime defined only by common law.

This turns out to have many, many weird consequences. Think it over.



  1. In many jurisdictions isn’t even the “basic” crimes, murder, theft, and so forth, common law crimes?

  2. Ah! In some. But in most, like Virginia, the common law is adopted by statute. WEIRDER STILL.

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