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The popular expression “Don't make a federal case out of it!” only makes sense if federal involvement is something unusual or special that is reserved for matters of urgent national interest. It assumes that a “federal case” is, or at least ought to be, something relatively rare and noteworthy.

For the founding generation, federal involvement in people's affairs, especially through the criminal law, was in fact a relatively rare and noteworthy event. In The Federalist, James Madison told the citizens of New York that the powers of the proposed new national government “will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce,” while the states would be primarily responsible for “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” 2 The first congressional statute devoted to defining federal crimes, enacted in 1790, largely vindicated Madison's prediction. It was limited to such matters as treason; murder, *120 manslaughter, or larceny on federal territory; crimes on the high seas; counterfeiting; stealing or falsifying federal court records, bribery of federal judges, perjury, and interference with federal service of process; interference with foreign ambassadors; misprision of felony with respect to federal crimes; attempts to rescue accused traitors before trial; and (my personal favorite) attempting to rescue the dead body of an executed murderer that had been given over to medical professionals for dissection. 3 Federal criminal law remained confined to such topics until the Civil War, and it really did not begin to take anything resembling its present shape until the New Deal. 4 For much of the nation's history, making a federal case out of it was indeed an extraordinary event.

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