What US v. Comstock Means To You
phew... won't be needing this anymoreLet's dispense with CNN-soundbite analyses of the case.
Washington (CNN) -- The U.S. Supreme Court ruled Monday the federal government has the power to keep some sex offenders behind bars indefinitely after they have served their sentences if officials determine those inmates may prove "sexually dangerous" in the future.
...At issue was the constitutionality of federal "civil commitment" for sex offenders who are nearing the end of their confinement...
Not even close. This isn't about sex offenders. This is the Supreme Court, not your local public defender/bench trial farce pretending to be justice. And it isn't "by extension" about the indefinite detention of terror suspects.
It isn't about whether it is ok to civilly commit criminals after they've served their time. This is something I am against, can argue it classically, drunkenly, or violently, your choice, but regardless, isn't really the point.
The question here was whether the federal government is allowed to engage in civil commitments for anything other than the enforcement of (federal) criminal law. More generally, is the federal government allowed powers it thinks important, not explicitly granted by the constitution, but not specifically prohibited either?
And, is the Supreme Court going to let them?
The answer is, yeah, pretty much.
II.
Thomas, first two sentences of his dissent:
The Court holds today that Congress has power under the Necessary and Proper Clause to enact a law authorizing the Federal Government to civilly commit "sexually dangerous person[s]" beyond the date it lawfully could hold them on a charge or conviction for a federal crime. 18 U. S. C. §4248(a). I disagree. The Necessary and Proper Clause empowers Congress to enact only those laws that "carr[y] into Execution" one or more of the federal powers enumerated in the Constitution. Because §4248 "Execut[es]" no enumerated power, I must respectfully dissent.
All extra power that may be needed by the government is explicitly granted to the states. That's the whole Federalist set up. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states." That's the whole point.
The government already does lots of things outside its enumerated powers. It builds prisons. It can declare a quarantine. It gets away with these because they are closely related to actually enumerated powers.
The test is whether the desired power/law-- is "necessary and proper" and also "legitimate," as defined as "within the scope of the Constitution." But the two parts of the the test must be equally considered.
(Thomas) Unless the end itself is "legitimate," the fit between means and end is irrelevant. In other words, no matter how "necessary" or "proper" an Act of Congress may be to its objective, Congress lacks authority to legislate if the objective is anything other than "carrying into Execution" one or more of the Federal Government's enumerated powers.
You can be for Big Government or you can be against it. Whatever, it matters not a lick. It matters GIGANTICALLY that the supposedly conservative, strict constructionist Chief Justice, a man who had previously been in a tennis club actually called The Federalist-- has come down decidedly on the side of, "well, I guess in some cases it's ok..."
Say what you want about Scalia and Thomas, but undeniably, they are old. They will die. If they were the only two willing to put pen to paper against a government looking to expand its powers, look out.
III.
"The court's holding today is a victory on behalf of the American people," said Sen. Patrick Leahy, D-Vermont, chairman of the Senate Judiciary Committee.
"The process to enact this law to protect our children from those who would do them harm was difficult. I am heartened to see an overwhelming majority of the Supreme Court uphold this important child protection law."
Listen, dummy, you have it backwards.
All constitutional questions aside, the practical outcome of this is that it puts a criminal matter into the hands of the psychiatrists. Is that what you want? Worse: it places the prediction of a future crime in the hands of the psychiatrists. Worse still: it places the prediction of a future crime on the basis of not having actually committed any crimes yet in the hands of the psychiatrists. Note that one of the defendants didn't actually molest anyone, he only had child porn. Is hentai child porn? Well, it is now.
Is raping a child a mental illness? Not is it evil, not is it curable, I'm asking if it represents a discrete pathology? How is a psychiatrist to intelligently predict dangerousness there? What if he gets it wrong-- in either direction?
In an ordinary psychiatric commitment, I have to predict whether this guy's mental illness may cause him to be dangerous. Note carefully: not predict if he is dangerous, but whether that dangerousness is the direct result of a mental illness. If I think a guy is going to shoot a rival gang member, locking him in a hospital isn't allowed. So? He raped a child last week. He exhibited no signs of that behavior previously, and he doesn't have any now. So?
IV.
I've nearly had it with this country, with this generation.
Forget about being responsible for yourself, people are not even willing to be responsible for choosing someone else to bear the responsibility. Don't bother me. So long as I can Facebook all night and not have to have sex with my spouse.
The government, not just Obama, Bush too-- is the manifestation of this narcissism and laziness. On the one hand, the government wants all the power in the world to do what it thinks is right, the other half of the country be damned. And we say, sure! just drop me off at Nordstroms, it's on the way. On the other hand, anything it finds politically toxic it offloads to the group with no scientific rigor and no ethical framework beyond expediency. Got poverty? You can apply for welfare and disability down at the community mental health clinic. Got criminality? They have a branch office in the jails, too.
Whenever you hear about Chinese schoolkids getting slashed or Japanese teenage hikikomori masturbating to bootlegs of The Ring, it seems only logical to wonder, hey, what's up with that crazy culture?
So I put it to you: you got an epidemic of pedophiles- or you have a media created fantasy of an epidemic of pedophiles; for which the government response in either case is a) more powers for us; b) more psychiatry for you.
What's up with that crazy culture?
---
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May 20, 2010 7:23 PM | Posted by : | Reply
On the plus side, more work for psychiatrists.
Score: 3 (13 votes cast)
May 20, 2010 8:06 PM | Posted by : | Reply
I am so glad the government is here to protect me from everything. I trust the government and I'll give them all the power they want, so they can protect me and take care of me. That is the purpose of government, after all.
I am also glad that we can lock these pedophiles away in psych wards until they can be cured. They *can* be cured, right? Surely there must be solid scientific evidence demonstrating that institutionalizing someone helps with sexually aberrant behavior. [Note, spend some time around an institutionalized population and you'll see it probably creates more deviants than it cures.]
A couple MMPI's and maybe a Rorschach, and we shrinks will have a solid idea of a person's dangerousness. What could go wrong?
Relax, Alone. The government is doing this for your own good. The Constitution does not matter when it's for your own good.
Score: 13 (19 votes cast)
May 20, 2010 8:08 PM | Posted by : | Reply
Most psychiatrists are willingly serving Big Government and Big Pharma, making Big Bucks for executing work, prisoners, patients - sorry, that was in another country 70 years ago. The Nazis were beaten - were they?
Score: 13 (21 votes cast)
May 20, 2010 9:29 PM | Posted, in reply to , by : | Reply
After spending a month in a psych ward I can assure you progress happened in out-patient care. While I'm grateful for the care they provided and only in hindsight recognize the value of removing oneself from a toxic environment, it's also where I picked up cigarettes and fuck me if locking a gaggle of crazies in together does not make certian symptoms worse.
Score: 14 (14 votes cast)
May 20, 2010 10:39 PM | Posted by : | Reply
"I've nearly had it with this country, with this generation."
Which implies it is possible, and in the future perhaps even probable, that you WILL have had it with this country, this generation.
Then what?
Score: 11 (11 votes cast)
May 20, 2010 11:03 PM | Posted by : | Reply
Its kinda depressing. I wonder why I keep coming back for more. You keep show the matrix, a matrix, something, I keep seeing the craZy in it but then there is nothing to deal with it all.
I'm not playing the game wrong, there is no game, no rule book no set of skills to learn, theres just... this. WTF. I dont know, I wonder you know. I gets cold out here. So. So yeah I agree, when you've actually had enough, what then?
Score: 3 (9 votes cast)
May 20, 2010 11:06 PM | Posted by : | Reply
perhaps its gonna lead to busting out that fluro....
Score: 1 (3 votes cast)
May 20, 2010 11:22 PM | Posted by : | Reply
1. Who are the "officials" who will determine if a person at the end of their sentence will be "sexually dangerous" in the future? Prison wardens, prison guards, Congressmen, psychiatrists elected to Congress?
2. Scalia and Thomas are spring chickens compared with Leahy, who will probably be found deceased at his desk in the Senate Chamber after not uttering a word for the last 5 hours.
Score: 4 (6 votes cast)
May 21, 2010 1:00 AM | Posted by : | Reply
Flaubert said "all men libel their times, but its always been like this."
I have to be honest I just don't see how this zeitgeist is really different than any other zeitgeist. Did he japanese in the Meiji era want less gov't and more personal responsibility, or the Romans, or Greeks? Athens the center of democracy devolved into dictatorship.
This is just the way its has always been.
Score: 2 (12 votes cast)
May 21, 2010 1:49 AM | Posted by : | Reply
The lines get blurred.
It's really the problem though, because psychiatry adopts a bio model and you can then argue that someone who commits sexual assults on children must be suffering from a mental illness, logically it then becomes the responsibility of psychiatry.
Is that wrong ? Is that right ? A lot of psychiatry seems pretty arbitrary to me and not really based on pure science, but a lot of it sounds plausible. Like this issue, is it a long bow to draw that someone that rapes a child is fucked in the head ?
Perhaps the DSM will end up having these discrete pathologies mapped out, guess it will start off relating to pedopheilia and move on, maybe to just plain rape, then any violence. Argh !
Score: 6 (6 votes cast)
May 21, 2010 2:00 AM | Posted by : | Reply
Best goddamned article you've had up in a while.
Whatever culture we might of once had about laws and the dignity of the human being has been replaced with enforcing the norm. Classical Liberalism ("We hold these truths to be self evident..." etc) might not have been the most philosophically and scientifically grounded stance to take, but at least it was a bedrock to base things off of.
Nowadays our values are premised on "Has a mortgage, works at a regular job, does not dress or act deviantly... this shall be the whole of the law." Don't matter if it's consistent, or moral, or follows the foundations of the constitution - just as long as it reinforces the norm ("I know it when I see it") it's acceptable.
Score: 9 (15 votes cast)
May 21, 2010 2:44 AM | Posted by : | Reply
Slick.
Most people (including myself) feel the constitution doesn't and shouldn't have to apply to those who do something like this. (As opposed to just "think about it".)
So if I'd want to render the constintution worthless, that's where I'd start, too.
Is it too late to learn Portuguese and move to South America? Can't be any worst than this place - especially when corporations and psychiatry get through with it.
Score: 9 (11 votes cast)
May 21, 2010 7:15 AM | Posted by : | Reply
Truthfully spoken by TLP, one of a few honest, sane voices in the increasingly corrupted profession of medical men, many of whom are nothing but pushers of snake-oil on vulnerable, uninformed people, often ruining and shortening lives, instead of helping.
It's the most profitable business, as long as human misery and social ills can be offloaded by the government to "the group with no scientific rigor and no ethical sense beyond expediency" - psychiatrists.
Loren Mosher withdrew his membership in the American Psychiatric Association. I recommend his letter of resignation, just google Loren Mosher - a man of integrity - having seen the corruption, wanting no more part of it, telling the world, if we will listen and not be duped.
Score: 8 (8 votes cast)
May 21, 2010 10:07 AM | Posted by : | Reply
Here's another observation that should propel your renunciation of American citizenship.
School teachers, (representatives of the State), suggesting that a kid has ADHD or is bi-polar. Suddenly he's in for a wild ride of stimulants and anti-psychotics to turn both his body and his brain inside out for who knows how many years. (Till the diabetes sets in perhaps?)
Just another form of State sponsored "incarceration".
Score: 7 (7 votes cast)
May 21, 2010 10:14 AM | Posted by : | Reply
wow. the terrorism and kiddie porn are bigger trump cards than even godless communism.
representational democracy - it was nice while it lasted.
Score: 7 (7 votes cast)
May 21, 2010 10:35 AM | Posted, in reply to , by : | Reply
Anon
Good info, I am passing on Mosher's letter to everyone I know.
Score: 3 (3 votes cast)
May 21, 2010 12:32 PM | Posted by : | Reply
Maybe I'm out of place here, but how much of our history has been spent fucking between the ages of puberty and an early death? If a biological "illness" exists that predisposes us to young, nubile flesh, it might also have to do with historically fucked mortality rates and our inability to reconcile disposition with extended lifespans.
Score: 0 (6 votes cast)
May 21, 2010 3:40 PM | Posted by : | Reply
When you say "this generation," why don't phrase things more accurately. The sentence you needed to write was
I've nearly had it with our country, with my generation.
Score: 1 (5 votes cast)
May 21, 2010 4:33 PM | Posted, in reply to , by : | Reply
I read Mosher's letter and it's good that someone has/had taken a stance against the psychiatry of today. It's too bad more don't think like him and instead are only smelling the money to be made.
Score: 3 (3 votes cast)
May 21, 2010 6:03 PM | Posted, in reply to , by : | Reply
I doubt Mosher is Alone in his views.
Score: 0 (0 votes cast)
May 21, 2010 6:17 PM | Posted, in reply to , by : | Reply
About the time our original 13 states adopted their new constitution, in 1787, Alexander Tyler, a Scottish history professor at the University of Edinburgh, had this to say about the fall of the Athenian Republic some 2000 years prior:
"A democracy is always temporary in nature; it simply cannot exist as a permanent form of government. A democracy will continue to exist up until the time that voters discover they can vote themselves generous gifts from the public treasury.
From that moment on, the majority always votes for the candidates who promise the most benefits from the public treasury, with the result that every democracy will finally collapse due to loose fiscal policy, which is always followed by a dictatorship."
Score: 5 (5 votes cast)
May 21, 2010 10:53 PM | Posted, in reply to , by : | Reply
For completeness...
The average age of the world's greatest civilizations has been 200 years.
Great nations rise and fall. The people go from bondage to spiritual truth, to great courage, from courage to liberty, from liberty to abundance, from abundance to selfishness, from selfishness to complacency, from complacency to apathy, from apathy to dependence, from dependence back again to bondage.
Score: 3 (3 votes cast)
May 22, 2010 7:42 PM | Posted by : | Reply
OK, I'm going to comment and it's going to be a bit long, and personal and it's going to ask a direct question: Why bother? Why? What's the point--I'm killing myself to pay for school, keep a roof over my head, so I can one day teach? teach who? teach them what? By then I'm sure the Ipads will have some kind of chip that implants directly to the brain (kidding, but not really) I love this blog, the cultural and political analysis mixed with black humour and insight that I DON'T SEE happening anywhere else in print or online, I see intellectual debates going on in the comments section but meanwhile black death is spilling into our oceans at an alarming unprecedented rate, death is raining from the sky courtesy of drones paid for by my tax dollars, on a rare trip into the city last week I noticed all the cars looked the same--all of them and it made me fucking cry. Capitalists, Communists, Socialists, Dictatorships--there's violence and hate no matter what, greed no matter what. you see this in every country, every place and there's no ideology that solves it. I'm twenty-four and I want to be a force for positive change, I try, I do, I volunteer, but it all seems so pointless. I don't wish for my country to devolve into a dictatorship, but the way capitalism (oh, sorry, mercantilism) is working for right now is just as flawed and wrong. All I can do is pray that something, something good can happen. BP, two illegal wars, the apathy, the violence, the narcissism...It's so sad, so wrong. And I'm part of the problem because I can't figure out how to help besides not supporting causes/companies I find repulsive/not being a slave to consumerism/trying to learn and write and think every day. I'm just a short-order-cook trying to teach one day, but if violent revolution/rebellion/repression is the only way things will change I don't want to see it, can't bear the idea of the carnage we are in for, it's heartbreaking. I know so many good, smart,caring, kind, helpful people who never asked for this, don't want it, are sickened by it. Who can share some ideas for why it's worth it to stay alive against the madness/mess/chaos? Who can tell me why it's worth it to keep trying when every fucking day the news gets worse? Share some strength, because the tears and prayers are very quickly proving useless.
maybe I'm just another narcissist, but I don't think so, I'm just exhausted and need some hope.
Score: 2 (2 votes cast)
May 23, 2010 1:36 AM | Posted by : | Reply
Do you think we will see psychiatrists feel they are taking responsibility for the offender's acts and possible recidivism and thus erring on the side of safety? You could see borderline or not so borderline cases locked up for life.
I find myself imagining that scene in Goodfellas in the back of the courthouse when the bosses are talking about whether or not to whack a loyal soldier. All of the bosses come down on his side except one who says, "why take chances?" and thus signs his death warrant.
Score: 2 (2 votes cast)
May 23, 2010 1:59 AM | Posted by : | Reply
this is lucid and moving, per usual. i'm a medical student a few months away from deciding on a residency, interested in and also terrified of psychiatry. i wonder if Alone or other professionals among his readership have advice for the new class regarding an impending sea change versus the utility of iconoclasm versus steering the fuck clear?
Score: 1 (1 votes cast)
May 23, 2010 4:27 AM | Posted by : | Reply
Unfortunately, alone there's only few things you can do and writing is by far the most effective method. Teaching is not bad either.
Score: 0 (0 votes cast)
May 23, 2010 8:06 AM | Posted by : |
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