Saturday, November 21, 2009


I want offer a few thoughts on this US Supreme Court case, especially on the Amicus Curiae Brief submitted by the Cato Institute in favor of the Respondent-Defendant, one Graydon Earl Comstock, Jr. (and others not named).

The text of the Brief is here. It’s only 42 pages long and is actually very readable. As always, I urge readers to get used to reading Court filings. Many times the only opportunity to read such documents among the SO community is when a case is pending involving yourself or somebody you know – and at that point it’s all kind of intimidating. But it’s good to get used to reading them when you’re not under such pressure, just to get a sense of how lawyers and courts think and how they approach a case. When I use page numbers to refer to the Brief, they will be the page numbers as they appear on the pdf that the hyperlink in this paragraph will take you to.

This case involves the federal government’s authority under Title 18 of the US Code, Section 4248, to civilly commit a “sexually dangerous person” ) who has finished a sentence in the custody of the Bureau of Prisons “or against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person”. It should come as no surprise to know that this initiative was part of the Adam Walsh Act.

The way it works is that if a the Attorney General can “certify” that such a person is a “sexually dangerous person” (SDP), send that Notice to the court that tried him, and require thereby a hearing to determine if the person is indeed an SDP, and his release may be delayed until the hearing is held and a decision is reached.

The court may also order a “psychiatric or psychological examination” of the person and a report to be filed. If the court finds “by clear and convincing evidence” that the person is indeed an SDP, then the court can “release the person to the custody of the Attorney General”, who can then approach the State that originally tried him or the State of the person’s residence and get the State to civilly confine him (for “treatment” of course) or, if neither State can or will, then the Attorney General can place the person in “a suitable facility” until such time as the person is declared no longer “sexually dangerous”.

So far so familiar to anybody familiar with the SO mania.

And since there is no specfic 'sex offense' mental illness, there is no diagnosis and no treatment - so you can imagine that a civil commitment for the ostensibly benevolent purposes of 'rehabilitation' might last quite a long time. In the alternative, a person might be clasified as having a 'personality disorder'; a sizable chunk of the entire national population has one sort or another of such a disorder, and since there is a also a category for a personality disorder 'not otherwise specified' - meaning one that conforms to no diagnostic markers known to clinical professionals - then just about anybody can be 'diagnosed' with one by any mental health evaluator who 'sees' such a disorder and writes that opinion up for a court hearing.

As we have seen in many SO laws, but also non-SO laws such as the recent Matthew Shepard Act*, Congress and the Feds are dealing themselves into matters properly the business of the States.

In the Adam Walsh Act (AWA) we saw the Feds use the pretext of Congress’s power under the Commerce Clause to regulate interstate commerce.

In this case, however, the government is trying to establish its power to do this sort of thing under the Necessary and Proper Clause (Article 1, Section 8, Clause 18) of the Constitution, which grants Congress the power to pass all laws “necessary and proper” to carry out those specific enumerated powers assigned to it in the Constitution.

So we come to this Brief. It is from the Cato Institute, a well-known, sorta conservative think-tank in Washington that you wouldn’t at first think would be running around filing Amicus Briefs on behalf of SOs. But what’s going on here is that the government through Congress has now started expanding its alleged authority to deal with SOs so widely that even a conservative think-tank with impeccable credentials is getting worried by the trend.

The Necessary and Proper Clause (N&PC) has always been “tethered to a specific enumerated power”, the Brief points out (p11). If the government is going to use the N&PC as justification and authority, then the government has to identify just what enumerated power within the Constitution its particular plan or law it claims the necessary and proper justification to carry out.

The Government, the Brief politely notes, has identified no such enumerated power by which civil commitment of SDPs is justified.

After all, if the N&PC is not tethered to some particular power that the Constitution has already assigned to Congress, then Congress can make any law it wants about anything, simply on the basis that Congress feels that the law is “necessary and proper’ for Congress to be passing. And that’s the end of any limits on the power of Congress at all. Congress could do whatever it wanted to do and nobody could say No to it because Congress felt that whatever it was doing was ‘necessary and proper’. And do you want Congress as you know it to have that kind of power?

Certainly the Framers didn’t.

That’s why the N&PC is not an independent source of Congressional authority, any more than the Commerce Clause is. Whatever Congress is doing when it uses such a Clause as justification has to be shown to stem directly from one of its Constitutionally enumerated powers.

The government does take a stab at justifying the law: Congress has the right to set up a penal system (p11). Since Congress has the power to pass some criminal laws, says the government, then it must have the right to set up a penal system as well.

But of course that implies that the civil commitment is actually a ‘penalty’, part of the ‘penal system’s power’ – and the whole basic claim about the sex-offense laws is that they are precisely NOT part of any penal system but rather are simply ‘administrative’, ‘regulatory’ and ‘civil’ regulations. Such are the problems a government is going to have when it’s trying to keep this whole SO matrix going – it winds up contradicting itself and surely in this case threatening to undermine the whole matrix altogether.**

For that matter, says the Brief, Congress has no specific enumerated power in the Constitution to be setting up penal systems; criminal law and certainly incarceration are primarily State issues, under the Xth Amendment (which leaves to the States all powers not specifically enumerated for Congress). “The civil commitment of prisoners at the conclusion of their terms has nothing to do with the creation or maintenance of the penal system itself (let alone anything to do with one of Congress’ enumerated powers)”, as the Brief puts it nicely.

But then the Brief stops being quite so vaguely polite. “The true aim of the Act is not to
support the operation of the prison system at all, but to protect the public at large by continuing the confinement of potentially dangerous persons after the conclusion of their sentences. However well intentioned Congress may have been, it had no power to legislate for the purpose of protecting the public from dangerous persons.” (p12).

Now we get to the heart of the matter. We are getting here to the point where it becomes clear just what a Constitutionally impossible (and Constitutionally dangerous) situation is created when the government gets into the ‘protection and prevention’ business.

There is no such specific enumerated power assigned to Congress in the Constitution. And who can be surprised? If the Framers had just waged the Revolutionary War in order to escape from the tyrannical treatment meted out by a royal government that accepted no limits on its authority, were they likely to propose giving their new replacement government the same type of authority?

Heck, it was hard enough for them to allow the States to conduct criminal law, and even then they placed significant protections into the Constitution to prevent the State government authority from lording it over the citizens.

Thus the N&PC limits the federal government (pp16-23). Indeed, Madison said as much on the floor of Congress in 1791: "Whatever meaning this clause may have, none can be admitted, that would give unlimited discretion to Congress". (p23)

I say again what my previous Post worked through at greater length when reflecting on Aya Gruber’s article: a government that is going to ‘protect’ its citizens from any and all sorts of dangerous persons was going to need the authority (and wisdom) of God. And any government with that much power was going to be at great risk of becoming a police-state and reducing its citizenry to a helpless, fearful herd.

So this entire trajectory toward the government – especially the Federal government – ‘protecting’ folks is dangerous and Constitutionally impossible (without gutting the Constitution). But of course, protecting folks has been the great game of the government domestically for decades now; the image of the ‘victim’ has provided the great cover whereby the government could churn out Soviet and Maoist levels of imprisonment, and increasing levels of surveillance and intrusiveness.

But it’s also strange that at a time when Congress has clearly been failing in its most important Constitutional duties (war-making decisions, economic and currency matters) it has simultaneously been seeking to expand its authority (and that of the police power) in ways never intended by the Constitution.

And if Congress is going to now consider itself responsible for broad, profoundly deep, and rapid cultural change and indeed for changing the deepest attitudes and beliefs of the citizenry, and regulate sex as well, then its very objectives will require a level of intrusiveness – precisely unlimited – that cannot but alter the very basis as well as the balance of the Constitutional ethos.

I read in some other commentary the opinion that the Supreme Court – in the commentator’s view – would not and could not approve the government’s plan on the basis of the N&PC, but would probably come up with some other angle to justify approving it.

Perhaps so, alas. But I think this clearly demonstrates that the law-and-order approach as it has evolved over the past few decades can no longer with any accuracy be labeled a ‘conservative’ position. Nor can the pressure for further government intrusiveness be in any sense be labeled ‘liberal’.

The great challenge facing the country now is that both so-called conservative and so-called liberal policies require the expansion of the police power and the expansion of Congressional and federal authority far beyond what the balanced mechanism of the Constitutional machinery and vision permit. Neither of the major political approaches in this country are really pro-Constitution.

And this has been going on for so long that the Bush-era skullduggery can legitimately be seen not as the cause of this dangerous state of affairs, but rather as the fruit of the prior decades’ worth of anti-Constitutional deconstruction by both Parties and their assorted pressure-groups and ‘bases’.

And the matrix of SO laws (themselves the further enhancement of the Domestic Violence initiatives and the entire victimist approach) place the SO community on the very front lines of resistance and make the SO community one of the most active resources for whatever correction and repair that it is still possible to be made.

So there is much at stake here. And much to do.


*See my Post here.

**Because if these laws are declared “punitive” (and more courts are starting to come to that conclusion) then they can’t be made retroactive. And, for that matter, such judicial determinations may also implicate the hugely suspicious inclusion of the military justice system as a court system whose convictions have the type of Constitutional integrity that justify making military court convictions for sex-offenses eligible for inclusion on the sex-offender registries. Things get complicated when you start trying to do a lot of stuff without really thinking anything through (and can you say Iraq War?).


The text of 18 US Code 4248 is here.

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