THE POLITICAL CONSTITUTION OF CRIMINAL JUSTICE William ]. stuntz INTRODUCTION I. CRIME. POLITICS AND THE CONSTITUTION A. The Allocation of islative politics and l. Policing and pr ocedure 2. Defining Crimes and Sent 3. Spending C. Executive branch politics and the constitution IL REPRESENTATION REINFORCEMENT: A BLUEPRINT A. The Content of Constitutional regulation B. The Method of Constitutional Regulation IIL. A REFORM PROGRAM A. Policing the polie B. Defining Crimes and Adjudicating Guilt C. Punishment E. Imagining Constitutional Reform V. CoNClUSION Professor, Harvard Law School. I owe a long list of colleagues and friends thanks for very helpful comments and conversations: Rachel Barkow, Dick Fallon, Heather Gerken, Jack Goldsmith, Joe Hoffmann, Pam Karlan, Orin Kerr, Mike Klarman, Daryl Levinson, Debra Livingston, Dana Mulhauser, Wes Oliver, John Rappaport, Dan Richman, Mike Seidman, Carol Steiker, Matthew Stephenson, and Adrian Vermeule. I also benefitted enormously from workshops at Columbia and Stanford Law Schools, the Hoffinger Colloquium at NYU Law School, and the Criminal Justice Roundtable at Harvard. Heather McNaught, Dana Mulhauser, Warren Postman, and John Rappaport provided excellent research assistance. Errors that remain are my responsibility*Professor, Harvard Law School. I owe a long list of colleagues and friends thanks for very helpful comments and conversations: Rachel Barkow, Dick Fallon, Heather Gerken, Jack Goldsmith, Joe Hoffmann, Pam Karlan, Orin Kerr, Mike Klarman, Daryl Levinson, Debra Livingston, Dana Mulhauser, Wes Oliver, John Rappaport, Dan Richman, Mike Seidman, Carol Steiker, Matthew Stephenson, and Adrian Vermeule. I also benefitted enormously from workshops at Columbia and Stanford Law Schools, the Hoffinger Colloquium at NYU Law School, and the Criminal Justice Roundtable at Harvard. Heather McNaught, Dana Mulhauser, Warren Postman, and John Rappaport provided excellent research assistance. Errors that remain are my responsibility. 1 THE POLITICAL CONSTITUTION OF CRIMINAL JUSTICE William J. Stuntz* INTRODUCTION I. CRIME, POLITICS, AND THE CONSTITUTION A. The Allocation of Power B. Legislative Politics and the Constitution 1. Policing and Procedure 2. Defining Crimes and Sentences 3. Spending C. Executive Branch Politics and the Constitution II. REPRESENTATION REINFORCEMENT: A BLUEPRINT A. The Content of Constitutional Regulation B. The Method of Constitutional Regulation III. A REFORM PROGRAM A. Policing the Police B. Defining Crimes and Adjudicating Guilt C. Punishment D. Federalism E. Imagining Constitutional Reform IV. CONCLUSION