May 20, 2010

What US v. Comstock Means To You

constitution.jpgphew... won't be needing this anymore

Let'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.


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.


"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?


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?