Supreme Court Finds Even More Federal Police Power Hidden In Constitution
The Supreme Court has recently upheld a law allowing the government keep federal prisoners locked up if they’re deemed “sexually dangerous”…indefinitely…after their sentence is over. In a 7-2 decision the Court ruled in favor of the government in U.S. v. Comstock et al.
In what will likely be one of her last victories as solicitor general, Elena Kagan persuaded the Supreme Court to embrace an expansive vision of federal power that should agitate right-wing advocates of freedom and small central government, but probably won’t, because U.S v Comstock, involved the power to detain people deemed “sexually dangerous” under the popular Adam Walsh Child Protection and Safety Act. (It passed the House and Senate by voice vote in 2006 and was quickly signed into law by President Bush.)
Proponents of limited government should not hold any hope for Supreme Court nominee Elana Kagan to understand the concept of enumerated powers…not that I know of anyone who may have had any hope.
So what constitutes “sexually dangerous” and how could people be indefinitely committed?
Virtually any federal prisoner, including ones who have not been imprisoned for sex offenses, may be targeted for civil commitment. (Since convictions “for violent and non-violent sex offenses constitute less than 2 percent of all federal convictions,” the National Association of Criminal Defense Attorneys stresses the statute provides for “potential commitment of a significant number of persons with no criminal history of sexual misconduct” and even persons with no prior convictions for any crimes, like material witnesses being detained by the attorney general.) Once targeted, people are entitled to a hearing before a federal judge (or magistrate), but their alleged future dangerousness need not be proved beyond a reasonable doubt. And, while the judge must find that the prisoner “has engaged or attempted to engage in sexually violent conduct or child molestation,” that finding (as Justice Thomas noted in dissent) “can be established by … clear and convincing evidence that the person committed a sex crime for which he was never charged.” In other words, the government is empowered to imprison (or “civilly” commit) people indefinitely without bothering to try them in criminal court or in any other proceeding in which they are afforded the rights of a defendant in a criminal case, even if they have never been convicted of any sex crimes.
Not only is the idea of government bureaucrats guessing as to someones sexual intentions and then locking them up past their sentence disturbing. What is really telling is Justice Stephen Breyer’s view of expansive federal power. Sheldon Richman of the Freeman explains:
The chief matter before the Court was whether the law satisfies the Constitution’s Necessary and Proper Clause (Article I, Section 8, Clause 18), which authorizes Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Writing for the majority, Justice Stephen Breyer said that the commitment statute falls well within the clause as it has been interpreted from the earliest days of the Republic. Quoting terms from the early landmark case McCulloch v. Maryland, Breyer wrote, “[T]he Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’”
So to sum up, the Court majority feels that the Constitution allows Congress to pass any legislation it wants as long as it is useful to the Federal Government authority as the Necessary and Proper Clause allows sweeping powers for anything. Where the majority went astray is not understanding that the clause only applies to enumerated powers. It takes another trip to imagination land to rationalize that the Federal government has any constitutional role acting as mind police for possible sex crimes. If there is a real danger of possible sexual predators after their sentence has been fulfilled, The States and the People should address these acts of civil commitment (I personally don’t like the idea of civil commitment either but that’s another story.)
The Necessary and Proper Clause has given rise to gross interpretations allowing the government’s power to expand before the ink ever dried. As Sheldon aptly points out, this clause gave the Anti-Federalists great concern:
The Necessary and Proper Clause was one of several clauses they most objected to when the text of the Constitution was released to the public in 1787. Combined with other vaguely“enumerated powers,” they found the clause threatening to liberty and a portent of big government.
As the Antifederalist “Brutus” wrote, because of the Necessary and Proper Clause and the Supremacy Clause, “This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends.”
The Antifederalists were right and their fears well founded.
Until people’s hearts and minds are changed to view the protection of liberty as the only reasonably arguable function of government, the ‘real’ Constitution will mean whatever the statists say it mean. I think Justin Longo is on to something very insightful in his post.
At least Clarence Thomas is leaning in the proper direction on this issue. In his dissent he says:
“The Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.” He added, “[I]f followed to its logical extreme, [Breyer’s approach] would result in an unwarranted expansion of federal power.
Sadly Clarence, the expansion of power went well beyond unwarranted a long time ago.