Tuesday, February 2, 2010


I am completing here my consideration of the Oral Arguments in the Comstock case.

Let me quote a couple of paragraphs with which I introduced the first Comstock Post.

I had Posted in November about the Amicus Brief by the Cato Institute et al in this important case.

Oral arguments in the case were held before the Supreme Court a couple of weeks ago. The transcript is here.

What I want to do here is to follow the actual course of the arguments (by the government and by the ‘defense’ attorney) and the various comments and questions put to each of them by the various Justices and the Chief Justice.

I’m doing this because it gives you not only the content of the discussions but a sense of the flow of arguments. And perhaps you might notice how even at this level the human players are not always able to keep their minds focused on the key matter or even formulate a coherent and relevant observation – but that’s human nature for you. Which was part of the reason why the Framers didn’t want to give a whole lot of power to government at any level, but especially at the Federal level: too much power to wield and not enough intensity and integrity of mature focus … But that was then. Let me not digress.

So a couple of housekeeping points before I begin. A) the numbering will be twofold: the page number and the line number (each line is numbered in the transcript) – thus 22/4 means Page 22, Line 4 or 22/4-10 means Page 22, Lines 4 through 10; and 3/22-4/12 means Page 3, Line 22 through Page 4, Line 12. . And B) so you don’t have to remember names, I’m going to put down the speaker as “Gov” for the Solicitor General (Elena Kagan) and “Def” for Attorney DuBois, speaking for the defendants/respondents; and for the Justice who is speaking I will put “J.” followed by the Justice’s last name: thus “J.Scalia” would be Justice Scalia. And C) when I quote the exact words I will use quotes; otherwise I will paraphrase what the speaker is saying so as to save time and not reproduce the whole document in the Post.

The case, as you may recall, revolves around the government’s assertion that under AWA Section 4248 it has a “responsibility” (even if not clearly the Constitutional authority, power, and right) to civilly confine after the completion of their Federal sentence sex-offenders who are (vaguely) considered by the Feds to be too ‘mentally ill’ to release into society, since so often the States don’t want to take up the burden and such a releasee will “slip through the cracks”.

I now take up with the presentation of Mr. Dubois (“Def”) and the remarks and questions posed by the several Justices or the Chief Justice.

Def opens up with his primary point: “The power to enforce the law which brought the defendants into Federal custody in the first place has been exhausted. The defendant has been tried and convicted and he's sentenced and he's served his sentence. That law has been fully vindicated. At that point, any further detention must stand on an independent constitutional footing”. (26/2-0-27/1)

In other words, once the government has charged and convicted you, and you’ve served your sentence, that’s it as far as government power goes. Any attempt by the government to claim that it ‘must’ continue to hold you because it has some further ‘responsibility’ has to be grounded in some other Power besides the Power that originally convicted and imprisoned you in the first place – now that your sentence is completed, that Power is “exhausted”.

In response to J.Ginsburg’s question as to whether the government can continue to hold you because of your (alleged) “insanity” as a sex-offender, Def points out acutely that the plea of Not Guilty By Reason of Insanity is a Plea that has to be entered by the defendant at the original trial – so if you did not Plead that you were Insane, then the government can’t come along at the end of your sentence and simply declare you to be Insane. (27/20-25) You didn’t enter a Plea of Insanity, you were convicted (rightly or wrongly) and the sentence flowing from that conviction has now been served. Case, literally, is closed.

J.Stevens asks: Well, say you were convicted of “gun possession” and were sentenced to 30 days and on the 20th day you contracted a highly communicable disease – tuberculosis, say – then doesn’t the government have the power, and even the responsibility, to hold you and treat you until you were no longer contagious? (28/14-21)

No, says Def; public health is a State responsibility, not a Federal one. (29/11-15)

J.Scalia jumps in: Well. Communicable disease relates to interstate commerce, doesn’t it? (29/16-22)

No, answers Def. (Scalia was exploring here the government’s claim that it had the enumerated Power under the Constitution to hold you because of its Commerce Clause Power.)

Communicable diseases are not the same thing as interstate commerce (so the Commerce Clause Power doesn’t apply here). (29/23-30/3)

J.Breyer asks Why not? Surely it’s within the government’s interest and duty to “prevent mental illness” and sometimes the States don’t do such a great job and so what if the government wants to set up a bunch of mental hospitals and treatment centers “of the most modern kind” (as if there is a “most modern” treatment for the non-existent mental illness of ‘sex offending’) “and in these circumstances there will be a handful of people who will pose a threat to themselves or others, in which case they must be restrained”. (30/4-13)

I note the sly “handful” as if there are only a few – when the government’s case in this matter asserts a principle that could continue to confine not only anybody convicted of any kind of sex-offense at all (and they are legion) or even anybody held in Federal custody for any crime but whom the Feds think may be a ‘potential’ sex offender. One out of every 200 males in this country are now ‘sex offenders’, technically – and this is before you actually start applying the AWA parameters. Let alone anybody convicted of anything whom the Feds decide is ‘potentially sexually dangerous’.

Much more importantly, I note this clear example of a verrrrry disturbing, dangerous, and anti-Constitutional tendency at the heart of the Regulatory-Preventive project: the (sleazy) maneuver in which the highly volatile police power of the government – the power to deprive Citizens of liberty – is being snuck out of its cage dressed in the costume of a ‘public health issue’ in which the government wants to both ‘help’ and to ‘prevent harm’ as if you merely had a case of something other people could ‘catch’; and that you sometimes need to be ‘confined’ because you don’t know what’s good for you.

It works with a clearly-established physical communicable disease like TB; it works with solidly-established and physiologically verifiable ‘mental’ diseases such as florid schizophrenia, especially of the paranoid variant. But once you get into more hypothetical and clearly unproven ‘mental illness’ such as whatever they claim is the ‘sex offense mental illness’, then you are into very dangerous territory Constitutionally: such vaporous and unprovable grounds for confinement engorge the Confinement possibility exponentially.

Think of the vaporous concept of ‘repressed memory’ as I have demonstrated in the recent Posts on the Shanley case.

Recall also that in China and Quaddaffi’s still-Stalinist Libya you can be convicted of the crime of ‘wrong ideas’. And that ‘speech codes’ were first introduced in order to ‘prevent harm’ to others (meaning: others might not like what you are thinking and saying, and such dislike is now defined as ‘harm’).

Recall also that the ‘free speech zones’ established on campuses back a few decades ago saw ominous new life in the Presidential elections of 2004 when both Parties established them at their Conventions – as if, to paraphrase Abe Lincoln – the whole country weren’t a ‘free speech zone’ in a darkling world of government oppression.

Add that to all the dynamics of outright public mania – nurtured by the government itself – in this Sex Offense Mania and you can see how lethally the Founders’ cage can be rendered powerless to contain government intrusion into the lives of individual Citizens with its police and confinement authority.

J.Breyer asks: Doesn’t the government have the Power to confine and treat such mentally ill persons if it wants to spend its money that way? (30/16-20)

Def comes right back at him: No – it doesn’t have the power to detain individuals as a consequence of claiming that they are mentally ill based on the fear that they are going to go out and commit a crime. (30/25-31/3)

J.Breyer sticks with it: Are you saying then that even if there are all these people who may because of mental illness go out and commit a crime – maybe your own daughter or mine – and the States don’t have “adequate facilities” then the Constitution doesn’t give the government the power to go in and “help”? (31/4-13)

I note once again this encroachment on the power of the States by the government insisting that it only wants to “help”. (And who, I ask, can forget Ronald Reagan’s great quip that the most frightening statement in the American language is “Hi, I’m from the government and I’m here to help” … ?)

Def, a little befuddled, says No.

J.Scalia immediately steps in to buck up Def’s position: “Try the Tenth Amendment”. (31/18)

(The Xth Amendment, you recall, reserves to the States all Powers not specifically assigned by the Constitution to the Federal government.)

J.Alito sneaks in: Do you think that the government doesn’t have the power to remedy illness caused by its own incarceration of a person?

This is a trick question, of course. At the outset of the session everyone was reminded by the government that under “4246”, the law from the 1940s, the Feds have the authority to retain in confinement any inmate who got sick while in the Feds’ custody.

Def jumps right back: “That would certainly not be the case here”; all these sex offenders are claimed to have an ‘illness’ that predated their confinement. (31-25-32/5) And as a matter of fact, the whole idea the government has been trying to push from the get-go is that a sex offender is by definition “mentally ill” and not simply guilty of a specific criminal act.

In fact, Def continues, Section 4245 allows the Feds to transfer an inmate to a psychiatric facility if he goes crazy while in confinement, but that Section also requires that the confinement end when the sentence ends. (32/17-25) In other words, you can’t transfer an inmate to a mental facility and keep him there beyond the end of his sentence; and on top of that, the inmate has to have gone crazy while he was in confinement, which – again – is not the case with the government’s claims about sex offenders here.

What we’re dealing with here, Def continues after some meandering by several Justices, is the threat of “indefinite potential lifetime detention”; it’s not at all the same thing as a doctor saying to a hospitalized inmate at the end of his sentence Look, you could use a couple of more days or weeks here just to clear this infection up. (34/15-17)

There’s more meandering about whether Def is trying to say that the government doesn’t have the power to set up hospitals for communicable diseases under its Commerce Clause Power and then J.Scalia cuts in: “The government can spend money on whatever it wants … the issue here is whether they can force somebody into a hospital, not whether they can set up hospitals”. (35/23/-36/2) [italics mine]

J.Scalia goes on to say that he assumes Def would not have a problem with the government offering to pay the expenses (to a State) for any ill inmate it releases from Federal custody, and Def says that’s well within the Feds’ Spending Power. (36/3-10)

So, J.Scalia, continues helpfully, that money plus a letter from the Feds to the State saying that they are going to release so-and-so and they think he is ‘mentally ill’ and the State might want to do something with him … that would be OK? (36/11-16)

Def says Yes. And it would be up to the State at that point, what it did or did not decide to do with the information and the inmate himself.

BUT, says J.Stevens, hasn’t Congress acted precisely because it feels that there are cases “out there” where the States will decline to take any action?

Well, says Def, even if there are such cases, the government doesn’t have the Power to go and continue to confine these inmates who have now completed their sentences just because the State – completely within its Xth Amendment authority – declines to take any action. (37/4-9)

J.Stevens continues to work the angle that if there is a problem then the government has to – and somehow does – have the authority to fix it. (37/10-16) And this is, I would say, the huge assumption that the government is trying to get accepted as ‘the new normal’: that if the government ‘discovers’ (or defines) a new problem, and the States don’t want to do what the government thinks ought to be done, then the government just has to have the authority (somehow) to do what it thinks has to be done.

Def politely says No: “ … the question is: What is the constitutional response to the problem? We can imagine plenty of unconstitutional responses …” (37/19-21) And here he is politely trying to warn the Court that if you want to toss the Constitution overboard then, sure, there are scads of things the Feds could do about a lot of stuff … but is that where the Court wants to go?

J.Stevens is set on the idea that having a sex-offender type of ‘mental illness’ is just the same as having a ‘communicable disease’ so why is this case here a different constitutional question? (37/22-38/2)

There are times when you wonder if some of these remarks could even make it past a weekend paper in Freshman Philosophy (if they still have such classes in college). You aren’t ‘giving’ anybody a communicable disease when (and if) you commit a crime: you are inflicting the consequences of your actions (we aren’t even sure you can call your actions the result of a disease) on somebody. And inflicting your actions and their consequences on somebody is what human beings do all the time – and sometimes in a criminal manner.

AND YOU MOST CERTAINLY CANNOT try to sneak the dangerous unpredictability of the government police power (so carefully caged by the Framers) into a wider public role by claiming that it’s only in the service of a ‘public health’ issue. Consequences of any act that may elicit the operations of the government police and criminal-justice capability cannot wisely be viewed as merely an adjunct and secondary element of some purported public health issue; the engorgement of the government police power – especially of the Federal government against the States’ proper authority – is an absolutely fundamental issue that must be looked at long and hard and in the light of full and fully informed public deliberation on its own merits.

Yes, citizens were doing that - inflicting the consequences of their actions upon other citizens - in the time of the Founding, and long long before, and yet the Framers did not therefore see fit to create a Benevolent Despotism that could do whatever it saw fit to ‘help’ whomever it wanted to. The key term in Benevolent Despotism is ‘Despotism’, not ‘Benevolent’.

And THIS is the difficulty with the so-called ‘liberal’, victimist, Regulatory-Preventive State: it wants to erect for all practical purposes a Despotism because (it is claimed) it will be more Benevolent than the (allegedly) 'insensitive' Constitutional Republic that the country has now.

But once a Despotism is in power then there is no guarantee that it will keep its Benevolent promises, and there is every historical precedent to presume that it will not.

You see what’s at stake here.

After more of the same from J.Stevens, Def says outright: “It seems to me that the government’s argument essentially collapses into the notion [that] Well, if it’s a good idea, [then] it must be necessary and proper to do it. I think that is just simply not correct”. (38/20-25)

Def is being toooo nice here. It is not only “not correct”; it is hell and gone from the Constitutional vision and ethos and to accept it is to knock out a foundational wall upholding the entire Founding construction.

J.Ginsburg now weighs in to help the Stevens argument: “It’s more than the question of a good idea. You are talking about endangering the health and safety of people, so it’s – the government has some responsibility, doesn’t it?” (38/25-39/3)

I’d like to take a moment here to look at Ginsburg’s statement. What you see here is the culmination of decades’ worth of supporting assorted ‘reforms’ that, in method if not also in content, have required for all practical purposes a ‘revolution’ against democratic process, a ‘revolution’ purportedly required by the ‘emergency’ of this or that claimed ‘outrage’ and ‘injustice’, and a revolution justified as being more ‘sensitive’ and more (in my terms here) Benevolent than the Constitutional framework of the Founding.

Thus she gives herself away when she refers to Def’s point as merely being about “a good idea”. What’s at stake here isn’t a “good idea” – what’s at stake here is the very foundation of Constitutional government and the Constitutional ethos as the Framers envisioned and constructed it. But she has spent her professional legal career among those circles who saw the Constitution as some hoary, macho, insensitive and quaint contraption, tainted to its very core by the patriarchal oppressors who devised it and consequently deserving of little respect.

And she therefore just cannot imagine anyone denying that if the government (in her mind, I would say, a Sensitive Despotism) wants to do something nice to ‘protect’ some folks, then it simply has to have that responsibility. (And who cares how it justifies the Power? After all, facts don’t matter; only pain does. This is how the ancient Vampire of Tyranny will be invited in, and by the so-called ‘liberals’.)

Def counters that Yes, certainly the government can have a responsibility, but that “there are constitutional limits” (39/4-7)

But that’s just the point that Ginsburg – true to her own ideological and professional history – is perfectly willing to pooh-pooh: Yes, but you’re saying that all the government can do if the State is unwilling or unable to “take” this person is to pass a spending measure and that beyond such legislation the government is “helpless”.*

She wants her Sensitive Despotism to have all the Power it may ever need and she doesn’t like it to have any bounds – and would you care to imagine her at the Constitutional Convention in Philadelphia back in 1787? But of course, she would say, they were ‘men’ and the Convention was nothing more than a conventicle of patriarchy.

The entire Constitutional idea was that the Federal government would indeed – in matters reserved to the States – be “helpless”, at least in the sense of having a direct Power to override or compel or “help out” whether the States wanted it to or not.

C.J.Roberts clarifies that Def wants the government to acknowledge that once the sentence is completed its power is exhausted and that it can only urge the States to take action, perhaps offering money to help them do so. And Def agrees: once the sentence is completed, then the government has no “decision” to make: the inmate must be released from Federal custody and from then on it’s up to the State involved what action, if any, to take.

J.Breyer can’t understand how Def can claim that what the government wants to do is any different from a university running an infirmary for sick students, some of whom might have to be restrained for a bit. (41/4-17)

Which really makes you wonder … that’s precisely Red China’s approach: that the entire country is a school run by the government and the government will educate or re-educate the citizens, and they will go where they are told when the government decides they need ‘healing’ or ‘re-education’. Or else.

You see where decades of trying to make space for the Regulatory-Preventive State has led to. After several decades – and perhaps entire professional careers – trying to put a ‘constitutional’ face on profoundly anti-constitutional ‘reforms’, even the most senior judges in the country can no longer sense the abyss to which they have helped draw Us all.

And in fact J.Breyer goes on to say that what the government wants is merely to “take care of people in a certain way” – the Nanny State, the Caring State, freed from all bounds because it has such good intentions (and can you say Iraq War?). (42/17-18)

In what has to be one of the most polite understatements in American Constitutional and jurisprudential history, Def remarks “I think it would be quite a step for the federal government to embark on an enterprise of that nature”. (43/12-13) And he ain’t just whistlin’ Dixie.

J.Scalia proposes that since each State has an Involuntary Commitment statute, then the Feds could, if they felt it necessary, be empowered to bring such an inmate before a State court for such a Hearing. And Def, rightly, agrees that there would be no problem with that. (43/17-25)

But this is not, I think, what the Feds want at all. Rather, this case is one more instance of the Nanny State, of the Regulatory-Preventive State, amassing power – and if the Feds don’t come out with ‘the power’ to do what they want their own way then they will consider the case a loss; J.Scalia’s alternative solution respects State power and does not engorge the Feds’ power ... so the Feds aren’t going to want to go that route at all. They are after power here, not solutions.

And thus the entire Sex Offender mania in all its layers and phases and aspects seems to me not simply an aberration but rather a Phase in a larger Trajectory: to replace the Constitutional Republic with the Regulatory-Preventive State. There are many – to all appearances ‘liberal’ – who earnestly hope for such a Thing, whether they know it or call it by that name or not.

J.Stevens seems to recover some sense of what’s facing them, saying “We have to decide whether this [statute] is constitutional”. (44/12-13)

J.Scalia adds “But most of the argument for why this is constitutional is simply: it’s necessary, therefore it’s constitutional. But I’m not even sure it’s necessary”. (44/16-19) In other words, the government has other legitimate options as to how to see these inmates handled, without having to break through this Constitutional wall (which I would consider a ‘carrying wall’ and not a decorative one, a firewall, and a watertight bulkhead – and you don’t go punching through any of those things).

J.Ginsburg is concerned that in all this process, anyone who posed “sexual dangerousness” would be loose all the while. J.Sotomayor starts leaning into that: “But that doesn’t take care of the fact that the prisoner would be released before there was a cure found for the alleged mental illness, meaning supervised release generally has a term limit”. (46/3-7)

There are a couple of problems here. First, the government is claiming there is no cure, when there isn’t even a diagnosed (diagnosable?) disease. There is the fact that some persons – mostly males, as it has shaken out thus far – commit some form of sex crime (although hardly all rise to the level of rape or its attempt). And that of those ‘some’, a percentage will do so whenever they get the chance; this is especially true, as best I can make out, of those attracted to prepubescents, to children strictly speaking.

Such persons are clearly and profoundly unwell. But the Constitution cannot be disassembled or deconstructed in order to ‘prevent’ them. You no more punch holes in the Constitution to get at criminals than the police can fire at a fleeing suspect into a theater full of moviegoers or use firearms to subdue a felon on an aircraft in flight (if you depressurize the cabin with a shot through the fuselage, you create catastrophic decompression ... no matter how benevolent your intentions when you pull the trigger).

But the children and the victims are not really at the heart of the issue here: they are being used as pawns, as pretexts in an increasingly steepening slide down from the Constitutional heights and into a despotic (however ‘benevolent’ it may be imagined) form of government which is precisely what the Founding generation fought the Revolutionary War to escape.

We are not heading here into a brave new future but into a tired and discredited but lethally dangerous and truly 'oppressive' old past.


*Hannah Arendt, in her 1962 book “On Revolution”, notes that the goal of the American Revolution – “limited government” – was akin to the British concept of “limited monarchy”: that the monarch-government is limited precisely in order to provide the ground of political liberty.

And that therefore limited-monarchy is precisely the opposite of that other, Continental Enlightenment concept of Benevolent Despotism, where the monarch-government is precisely NOT limited in its powers because it is presumed to be ‘benevolent’ and needs all the power it can be given in order to do ‘good’ things to alleviate human suffering.

Arendt notes – in 1962, before the later-1960s advent in the US of the various ‘revolutions’ in favor of ‘sensitive’ government – that a government allowed to pursue the (probably impossible) goal of alleviating human suffering is going to require and assume limitless power (such as happened with the French Revolution, which started off trying to alleviate the sufferings of les malheureux (the unfortunates) and wound up resulting in The Terror and then Napoleon’s empire and its imperial wars).

I’ll be Posting on this on my other site shortly.

Needless to say, I am not in favor of ‘human suffering’. But to entrust its eradication to government in any form is to remove any concept of ‘limits’ from government power, which is precisely antithetical to and contrary to the Founding vision of this country as a Constitutional Republic. This is a profound reality with huge consequences for this country, and those consequences are unavoidable and yet haven’t received careful attention, either by legislators or most courts or the media or the Citizenry at large.

The Politically Correct development of the Regulatory-Preventive State, then, is not some cutting-edge new ‘reform’ or ‘progress’. Rather, it is the embrace of the Continental concept of Benevolent Despotism which is precisely what this country was founded to avoid.

You see what’s at stake in all of this.

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