ABSTRACT
This chapter discusses the government’s right to inflict criminal punishment. Rather than looking at why the government imposes criminal punishment, however, the chapter analyzes the issue from the perspective of when the government may legitimately regulate conduct through the criminal law, thereby sanctioning misconduct with criminal punishment. In doing so, the chapter proposes certain constitutional limitations to the government’s ability to resort to criminal punishment as a means of regulating conduct that are drawn upon constitutional arguments developed in existing First and Fourteenth Amendment jurisprudence.
