Comstock's Brave New World

You could be forgiven the view that the federal government was one of limited powers. That was the framer's intent, after all. Those powers not expressly given to the federal government were retained either by the people or the state. A significant portion of our history has been a sustained struggled about where to draw the line distinguishing state and federal power.

The United States Supreme Court all but ignored that line in today's decision in United States v. Comstock, et al. It did so in a way that terrifies. Call in the therapeutic police writ large.

The case involved the decision of the federal government to detain five prisoners after they had served their criminal sentences. The men were all convicted sex offenders. Because the government believed that the men were mentally ill and still posed a danger to reoffend, they moved to commit them civilly, under a federal statute. Three of the men were convicted of possession of child pornography, one was convictetd of illegal contact with a minor, the fifth was convicted of aggravated sexual assault of a minor.

Under the federal civil commitment statute, the men could be detained after serving their sentences if the Government showed, by clear and convincing evidence, that the men were: 1.0 either previously or attempted to engage in sexually violent conduct or child molestation;" 2.) suffered from a serious mental illness, abnormality or disorder; and, 3.) are sexually dangerous to others or would have serious difficulty in refraining from sexually violent conduct or child molestation. A potential detainee has a right to a hearing, counsel, and the right to put on evidence. But a detainee has no right to a jury. This loss of liberty is regarded as civil rather than criminal in character. Whether a person is to remain detained can be reviewed every six months on demand of the detainee.

The majority decision of the Court, written by Justice Breyer, justifies this sweeping new federal power as little more than business as usual. This power, he writes, is simply a power necessary and proper under Art. I, Section 8 of the federal Constitution.

What shocks is that the Court refuses even to make passing reference to the Ninth Amendment of the Constitution. That amendment, the forgotten child of the federal Constitution, reads as follows: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Court has never, in more than two hundred years of jurisprudence, paid more than lip service to those rights retained by the people.

This decision explands federal power in significant ways. First, it applies a statute that was no doubt intended to hold violent felons to those accused of mere looking at pictures, the three detainees accused of looking a child pornography. Assuming that this is a disorder, is it really a crime involving sexual violence to a child or child molestation? On this broad application of the statute, the federal government would justified in seeking unlimited detention of anyone who looked at a prohibited image of a child.

Students of constitutional law are familiar with the enumerated powers doctrine. It is said that the federal government is one of limited powers. To the states, the theory goes, belongs the police power, that authority governing the health, education and welfare of a citizenry. What justifies this sweeping rebuke of the state's ability to police its citizenry?

Granting the federal government what amounts to an expanded police power in a climate of moral panic is chilling. The federal government does on occasion prosecute men federal prosecutors believe have been dealt with too leniently by the states. This is no violation of double jeopardy, lawyers know, as different sovereigns can see things differently.

The federal government has customarity served as a counterweight when the states succumb to craziness. In Comstock, the Court became the chief cheerleader for what can easily amount to state-sponsored craziness.

Comments: (4)

  • M:
    I feel the same. We need to decide whether fede...
    I feel the same. We need to decide whether federalism is an anachronism or not and at least be honest about how we decide it. Scalia and Thomas seem more honest in my view -- at least on this one.
    Posted on May 17, 2010 at 11:20 am by Norm Pattis
  • It scares me to think I might be thinking along th...
    It scares me to think I might be thinking along the same lines as Justice Thomas and Scalia.
    Posted on May 17, 2010 at 9:51 am by Marcus L. Schantz
  • M:
    The majority opinion is pretty shocking. Breye...
    The majority opinion is pretty shocking. Breyer makes it sound as though this is a minor and inconsequential extension of existing law. I have not yet read the dissents or concurring opinions.
    Posted on May 17, 2010 at 8:48 am by Norm Pattis
  • I have not read the decision and cannot comment on...
    I have not read the decision and cannot comment on how the court reached it. But it doesn't pass the sniff test. So if a doctor, paid for by the government, opines the person is ill, that's it? Does the defendant get to see a different psychiatrist of his own choice?
    The frightening extension is that anyone about to be paroled could be kept in if a doctor feels they are dangerous. What is that? And why sex crimes? Why not attempted murder? Why not aggravated battery of senior citizens?
    If the idea is to reduce recidivism, I get the purpose. But I don't get the mechanism.
    Posted on May 17, 2010 at 7:42 am by Marcus L. Schantz

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