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?



On the plus side, more work... (Below threshold)

May 20, 2010 7:23 PM | Posted by Nik: | Reply

On the plus side, more work for psychiatrists.

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I am so glad the government... (Below threshold)

May 20, 2010 8:06 PM | Posted by Frayed knot: | 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.

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Most psychiatrists are will... (Below threshold)

May 20, 2010 8:08 PM | Posted by bbj: | 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?

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After spending a month in a... (Below threshold)

May 20, 2010 9:29 PM | Posted, in reply to Frayed knot's comment, by Anonymous: | 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.

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"I've nearly had it with th... (Below threshold)

May 20, 2010 10:39 PM | Posted by Anonymous: | 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?

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Its kinda depressing. I won... (Below threshold)

May 20, 2010 11:03 PM | Posted by Wonders: | 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?

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perhaps its gonna lead to b... (Below threshold)

May 20, 2010 11:06 PM | Posted by Wonders: | Reply

perhaps its gonna lead to busting out that fluro....

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1. Who are the "officials" ... (Below threshold)

May 20, 2010 11:22 PM | Posted by Jack Coupal: | 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.

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Join a cult?... (Below threshold)

May 21, 2010 12:57 AM | Posted, in reply to Wonders's comment, by Matt: | Reply

Join a cult?

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Flaubert said "all men libe... (Below threshold)

May 21, 2010 1:00 AM | Posted by TheUnderwearBandit: | 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.

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The lines get blurred.... (Below threshold)

May 21, 2010 1:49 AM | Posted by anonymous: | 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 !

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Best goddamned article you'... (Below threshold)

May 21, 2010 2:00 AM | Posted by Aurini: | 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.

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Slick. Most people... (Below threshold)

May 21, 2010 2:44 AM | Posted by Whatever: | Reply


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.

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Truthfully spoken by TLP, o... (Below threshold)

May 21, 2010 7:15 AM | Posted by Anonymous: | 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.

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Here's another observation ... (Below threshold)

May 21, 2010 10:07 AM | Posted by Anonymous: | 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".

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wow. the terrorism and kid... (Below threshold)

May 21, 2010 10:14 AM | Posted by Jonathan Peterson: | Reply

wow. the terrorism and kiddie porn are bigger trump cards than even godless communism.

representational democracy - it was nice while it lasted.

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AnonGood info, I a... (Below threshold)

May 21, 2010 10:35 AM | Posted, in reply to Anonymous's comment, by vv111y: | Reply


Good info, I am passing on Mosher's letter to everyone I know.

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Awesome.... (Below threshold)

May 21, 2010 10:46 AM | Posted by R. Kevin Hill: | Reply


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Maybe I'm out of place here... (Below threshold)

May 21, 2010 12:32 PM | Posted by Anonymous: | 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.

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When you say "this generation,... (Below threshold)

May 21, 2010 3:40 PM | Posted by David: | 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.
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I read Mosher's letter and ... (Below threshold)

May 21, 2010 4:33 PM | Posted, in reply to Anonymous's comment, by M: | 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.

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I doubt Mosher is Alone in ... (Below threshold)

May 21, 2010 6:03 PM | Posted, in reply to M's comment, by Anonymous: | Reply

I doubt Mosher is Alone in his views.

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About the time our original... (Below threshold)

May 21, 2010 6:17 PM | Posted, in reply to TheUnderwearBandit's comment, by Andrew: | 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."

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For completeness...<p... (Below threshold)

May 21, 2010 10:53 PM | Posted, in reply to Andrew's comment, by Anonymous: | 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.

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OK, I'm going to comment an... (Below threshold)

May 22, 2010 7:42 PM | Posted by onereaderwrites: | 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.

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Do you think we will see ps... (Below threshold)

May 23, 2010 1:36 AM | Posted by Steve: | 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.

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this is lucid and moving, p... (Below threshold)

May 23, 2010 1:59 AM | Posted by Buck: | 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?

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Unfortunately, alone there'... (Below threshold)

May 23, 2010 4:27 AM | Posted by Maverick: | 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.

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US v Comstock means that ci... (Below threshold)

May 23, 2010 8:06 AM | Posted by Anonymous: | Reply

US v Comstock means that civil rights, human rights and democracy has taken a potentially mortal blow - provided large parts of the electrorate remain subdued by poverty, ignorance, apathy, media spin, corporate dollars and lobbyists..

Remember Europe 70 years ago! First they came for the communists, then the union leaders, the social democrats, the handicapped, the inmates of the asylums, the gypsies, the homosexuals, the Jews, the Slavs..

Paving the way to horrendous murder and abuse were biologists, medical doctors, psychiatrists, lawyers, judges, serving as cover for the masters of The Third Reich.

US v Comstock is one more undermining of the Constitution, the rule of law, freedom and democracy - by the masters of the USA.

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"Join a cult?" says Matt an... (Below threshold)

May 23, 2010 10:01 PM | Posted, in reply to Matt's comment, by wonder: | Reply

"Join a cult?" says Matt and I thought, hmn yes and then thought screw that, start my own....

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Congratulations you have fi... (Below threshold)

May 24, 2010 11:26 PM | Posted, in reply to onereaderwrites's comment, by Anonymous: | Reply

Congratulations you have figured it out. Sucks, doesn't it? There is nothing inherently 'worth it'. You have to figure it out yourself. I really don't know.

If you really want to change the world you have to have drive, and be ruthless or have alot of charisma. Oh, luck helps too.

But here's some solace: If you are helping people in your community that really do need help, you're doing the best that a person can do unless they really make 'changing the world' a lifestyle instead of a hobby. Set expectations. You're seeing all of these people in the media or whatever that are 'changing the world' and you think "I should be like them." It's bullshit.

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The funny thing about the i... (Below threshold)

May 25, 2010 3:51 AM | Posted by Nik: | Reply

The funny thing about the internet is that there is comfort in finding people who still think, but apathy in not knowing who they are. It's nice to think that there are enough sane people to rise up and oppose fascism, but no one wants to stand when they don't know if their compatriots are in the next house, the next city, or the next state. How can you resist when you don't know where anyone is? The masses are placated through spin, hand outs, and toys. Ironically, the sane are placated by knowing that there are other sane people. Viva la resistance.

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So what's your solution, to... (Below threshold)

May 25, 2010 12:07 PM | Posted by Dave: | Reply

So what's your solution, to the release of mental patients/criminals back into society? I've worked with homeless shelters and various charity groups enough to learn that the majority of those people aren't just down on their luck, there is a mental condition that prevents them from integrating into society and working, feeding themselves, paying for housing, etc.

I think it's the definition of sexual crimes that need to be clarified. I know two 22 year old women who went skinny dipping in an apartment hot tub at 2am that if not for an attorney would have been placed on the registered sex offenders list.

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Seriously? You're going to... (Below threshold)

May 25, 2010 6:06 PM | Posted by Plimpington: | Reply

Seriously? You're going to hitch you wagon to Loren Mosher?

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I'm not familiar with hikik... (Below threshold)

May 28, 2010 2:36 AM | Posted by Anonymous: | Reply

I'm not familiar with hikikomori. Is this one of those things I'm gonna regret googling?

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Some PhD named Kelly someth... (Below threshold)

May 29, 2010 5:50 PM | Posted by Anonymous: | Reply

Some PhD named Kelly something or other has a blog on Psych Central called Forensic Focus and was talking about this ruling but my comment was deleted because I didn't talk nicely about sex offenders.

I mentioned that this will make women think twice about agreeing to inpatient treatment. I also wondered if they're going to stick these folks in group therapy with those who have been victimized by sex offenders and let the sex offenders share what they've done to their victims. Should make for a very therapeutic environment for all. Basically what they're telling those have committed no crime but are inpatient for depression or other mental illness is that they're the same as a sex offender. Quite offensive, really.

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I retract my statement abov... (Below threshold)

June 2, 2010 7:38 PM | Posted by Anonymous: | Reply

I retract my statement above. They did post my comments. I made an incorrect assumption.

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Every once in awhile I read... (Below threshold)

November 29, 2010 3:06 PM | Posted by mike: | Reply

Every once in awhile I read an article, or watch an interview where someone comes out and speaks some sense and it helps to keep me going. Maybe there is some hope for America after all. =)
The constitution should be a sacred document.. but it became toilet paper over the last 20 years or so. Both major parties have contributed to it, by allowing big multinational companies and terrorist states like Israel to dictate policy by proxy.
There is no power to deprive sex offenders, or terrorists for that matter, of due process. It is antithetical to the founding beliefs of our Republic.
I can see -why- they would want to hold someone who is a continuing danger, but this is not the way to do it. It is merely a guise for more federal encroachment upon our sovereignty.

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Pretty much why I think ban... (Below threshold)

June 22, 2011 7:05 AM | Posted by AMH: | Reply

Pretty much why I think banishing gun ownership from "the mentally ill" is a pipe dream. Criminality and psychology are two different things. Statistically, the mentally ill aren't more likely to commit a violent act. Young men are. It's a nice fantasy, but unfortunately, you can't just round up a category of people and say, "Hey! There's the violent ones. We got 'em. Now all violence will disappear."

Yet in the case of sexual offenders, a lot of evidence suggests that reoffense is inevitable. So what do we do about that, then?

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Every time in human history... (Below threshold)

June 22, 2011 11:15 AM | Posted by Pat: | Reply

Every time in human history has struggles, TLP. What has happened is that YOU have changed. You have aged, and know more about how the world works, leading to disillusionment. When you were younger, you were blissfully unaware of the horrors of the day.

Some things are worse today, no question. But for me, 50 years ago I would have spent a lifetime in an institution, due to severe mental illness, or if I escaped that, would have had fewer rights than you because I am female. Psychiatric treatment has been a disaster for me for years, but now that I gave up with that, I'm still better off than "the good old days." I have a husband, 3 cats, live in the country and grow much of my own food. A lot better than an abusive institution.

It is frustrating to keep up on world or national events and see the structure of society take a turn for the worse, but times today are NOT worse than the past. They are just different. Better for some, worse for others.

I understand that there are many writings from ancient Sumer with concerns about how the new generation is going to hell, etc. There is a reason Shakespeare is still good entertainment.

Anyway, I get frustrated, but I try to take the long view. I also remember that "the slippery slope" is a logical fallacy.

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Wait, I'm not supposed to m... (Below threshold)

October 18, 2011 7:16 AM | Posted by Anonymous: | Reply

Wait, I'm not supposed to masturbate to hentai porn?

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