Fred Thompson has an interesting (especially by the standards of other writings by politicians) article on federalism (hat tip: Instapundit). Particularly noteworthy is his critique of the overfederalization of criminal law:
Law enforcement in general is a matter on which Congress has been very active in recent years, not always to good effect and usually at the expense of state authority. When I served as a federal prosecutor, there were not all that many federal crimes, and most of those involved federal interests. Since the 1980’s, however, Congress has aggressively federalized all sorts of crimes that the states have traditionally prosecuted and punished. While these federal laws allow Members of Congress to tell the voters how tough they are on crime, there are few good reasons why most of them are necessary.
For example, it is a specific federal crime to use the symbol of 4-H Clubs with the intent to defraud. And don’t even think about using the Swiss Confederation’s coat of arms for commercial purposes. That’s a federal offense, too.
Groups as diverse as the American Bar Association and the Heritage Foundation have reported that there are more than three thousand, five hundred distinct federal crimes and more than 10,000 administrative regulations scattered over 50 section of the U.S. code that runs at more than 27,000 pages. More than 40 percent of these regulatory criminal laws have been enacted since 1973.....
Now, there are plenty of areas in criminal law where a federal role is appropriate. More and more crime occurs across state and national boundaries; the Internet is increasingly a haven for illegal activity. A federal role is appropriate in these and other instances. But today the Federal Bureau of Prisons has quadrupled in size in little more than 20 years.
I fully agree with Thompson's view here. Most currently federalized crimes should either be handled by the states or not be crimes at all (as in the notorious 2006 bill banning internet gambling). More importantly, it's likely that this view represents his real position and is not just the usual political posturing from presidential candidates. After all, cutting back federal criminal law is not exactly a burning issue for voters, and is unlikely to excite the Republican primary electorate.
However, there is a major elephant in this federalism room that Thompson doesn't mention. He is right to note the massive growth in the federal prison population over the last 20 years, but fails to point out that most of that growth is due to the War on Drugs. As I explained here, convicts incarcerated for nonviolent drug offenses make up 55% of the total federal prison population. And it was the War on Drugs that led to the Supreme Court's 2005 decision in Gonzales v. Raich, which largely gutted constitutional limits on federal power. Any serious effort to reverse the federalization of criminal law must include cutting back on the War on Drugs; by comparison, the laws making it a crime to misuse the symbols of the 4-H Club and the Swiss Confederation are utterly insignificant. Is Thompson willing to advocate that? Will he promise to nominate judges committed to overruling Raich? I'm not holding my breath. But if he does, he'll certainly win my endorsement - the same priceless political asset that carried Nancy Pelosi to victory back in November:)!