Making criminals out of all Americans
The court's struggle with the "honest services" statute points toward a larger issue: the burgeoning problem of overcriminalization. It's for good reason that our Constitution mentions only three federal crimes (treason, piracy, and counterfeiting).
The Founders viewed the criminal sanction as a last resort, reserved for serious offenses, clearly defined, so ordinary citizens would know whether they were violating the law. ...
"Is that the system we have, that Congress can say, nobody shall do any bad things?" an exasperated Scalia asked Drebeen. The system we have comes pretty close, unfortunately. And a federal criminal code that covers everything delegates to prosecutors and the police the power to pick their targets at will, leaving everyone at risk.
For more on the issue of overcriminalization, Harvey Silvergate, author of Three Felonies a Day: How the Feds Target the Innocent, is guest-blogging all week at Volokh. Here is his first post on Honest Services Fraud that Healy discusses above.