As I mentioned in a Note two Posts ago, I have done a Post on my other site about Hannah Arendt's ideas on the differences between the French and the American approaches to revolution and then I have connected them to the rise of the Regulatory-Preventive or Nanny State.
The SO mania is part of this slide into that Regulatory-Preventive State, which is - I am saying - not some 'fresh', 'creative' new reform but rather a slide into exactly the opposite of what the American Constitutional vision was seeking to achieve. And that the 'vision' behind the Regulatory-Preventive State has migrated into foreign affairs in several ways.
So this all has a lot to do with the SO mania and I think that going over it would give you a deeper and wider picture of what's at stake in working against the SO mania.
But it goes more into the political and the historical than into SO matters specifically, so I put it up on my other site.
Please feel free to take a look.
Showing posts with label Regulatory-Preventive State. Show all posts
Showing posts with label Regulatory-Preventive State. Show all posts
Tuesday, February 9, 2010
Tuesday, February 2, 2010
COMSTOCK: THE ORAL ARGUMENTS 2
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.
NOTES
*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.
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.
NOTES
*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.
Thursday, January 28, 2010
COMSTOCK: THE ORAL ARGUMENTS
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”.
You can see how much devilry has taken up residence in that web of assertions, implications and half-truths. And I think you will be impressed by the way that (alas, just a few of) the Justices refuse to be taken in.
3/11-4/2: Gov claims that government has this power through Article I (Congressional authority) as exemplified in a 1940s law Congress passed, enabling the Federal prisons to continue to incarcerate an inmate who had gone insane while in government custody, until such time as the inmate had recovered.
Note first that both Congress and the Executive have burned together now into a superfire of Federal Authority: this isn’t some President-vs-Congress type of struggle: this is both Branches seeking to assert increasing power over society and the Citizenry (even if, ostensibly, in order to ‘protect’ that Citizenry).
Second, keep an eye on that 1940s law (called here “Section 4246”) since much hinges on the difference between 1) going-insane while you are in custody and 2) proving you were already insane by virtue of the crime you committed in the first place (as the government asserts about sex-offenders).
Gov piously observes that “it would be dangerous to turn them loose upon society where no State will assume responsibility for their custody” (3/24-4/2). But a State may refuse to simply take a Federal releasee and confine him for the simple reason that, though a sex offender, he is not insane and it would be unconstitutional to simply scoop him up for ‘the public good and convenience’. The Feds’ solution is to claim that they have the right to keep sex-offender inmates even after the sentence is finished, as a public service, since the Feds have a ‘responsibility’ to ‘release inmates responsibly’ (about which more later).
Gov continues (4/5-12) that the Feds now face “a similar problem”: “The Federal Government has mentally ill, sexually dangerous persons in its custody. It knows that those persons, if released, will commit serious sexual offenses; and it knows too that States are often not in a position to deal with such dangers, not in a position to take custody and care and responsibility for those persons upon release from Federal prison”.
Well, there’s no obvious connection between mental-illness and sexual-dangerousness. And there is no way that anybody – including the government (can you say Iraq War and Deregulated Financial Sector?) can “know” the future, especially the actions of an individual person. And then you get this sly gambit where the Feds want to make it sound as if the poor States are just too busy, poor, or distracted to keep up with this oh-so-important problem … whereas it’s easily possible that a State – which under the Xth Amendment actually has the authority and power in this matter – simply doesn’t want to play this rather dirty and unconstitutional game that the Feds have set up – which appears fine with the Feds because what they really want is all on their own to confine sex-offenders indefinitely.
Worse, at 4/13-16, the Feds want to make this seem it ain’t but a thang: “This is essentially a transitional problem that the Court was -- that the Congress was dealing with, how to manage the transition from Federal custody to State superintendence and responsibility”. This is a sleazy bit of frakkery: this is not a ‘transition’ problem because the Feds precisely don’t intend for there to be any transition at all; just a room change from the ‘prison’ ward to the ‘incurably dangerous’ ward, where the sentence – you may rely on it – will be for all practical purposes Permanent.
And at 5/21, under questioning from J. Kennedy, Gov admits as much: it is “not the usual course of events” that when the government asks the State to put this guy into mental-custody that the State agrees. So the Feds know that if they get this power then the States will offer little interference, especially since the Feds have now frakked up the economy to the point where the States themselves are virtually bankrupt.
Then, marvelously, J.Scalia (of whom I am no great fan), asks the Huge Question: “What -- what -- what power conferred upon the Federal Government by the Constitution permits the Federal Government to assure that sexual predators are not at large?” (6/17-20) [italics mine]
HERE IT IS. The question that has been glaring in the lurid mania-light for 20 years, waiting to be noticed and answered – exactly what the Mania could never face up to and did not dare allow to come into public discussion: where does it say in the Constitution that the Feds have the power and responsibility to keep the world – or the country – safe from sex-offenders?*
Gov responds slyly: “I think the power, Justice Scalia, is the power to run a responsible criminal justice system, to run a criminal justice system that does not itself endanger the public”. (6/21-24) In other words, if a person is convicted, serves his sentence, and is ready for release, then the government would be “endangering the public” by doing what is Constitutionally required.
Or to put it more succinctly: the government is saying here that to act Constitutionally will endanger the public – and then, drawing itself up in the robes of Sensitive Righteousness, the government, with Eddy Haskell levels of smarm, asserts that it is not willing to endanger the public (Iraq War? Economic collapse?)
You can see here the clear outline of what I have often said: from the very outset and in the very foundations of the past decades’ Feminist-from-the-Left and Law-and-Order-from-the-Right stances has been the lethal wraith of anti-Constitutionality: that both the Left and the Right were demanding – knowingly or otherwise – that the government sidestep the Constitution (wasn’t it “quaint” anyway?) in order to meet their demands for Law and Order, Protection and Safety.
C.J.Roberts quickly inquires if Gov is saying that the government, including Congress, is saying that it does not have the power to simply pass a law saying that sex offenders are to be put into mental hospitals until they can be cured (6/25-7/7).
Slyly, Gov answers the particular situation without admitting that Congress (now and forever) doesn’t have the Constitutional power: all these cases involve incarcerated persons already convicted of a crime and in custody (7/14/24).
Roberts closes in: “Well, why doesn't the Federal Government's authority to have custody because of the criminal justice system end when the criminal justice system is exhausted? In other words, when the sentence is done?” (7/25-8/4) In other words, if the government’s only authority stems from the fact that the person is convicted and imprisoned until completion of sentence, then why doesn’t the government’s power end when the sentence ends – and that’s that?
(I hope you’re getting a sense of the real drama – even excitement – in the flow of these vital ideas.)
Gov has to fall back on the pious bit: “Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly” (8/5-8) But of course, ‘responsible release’ means NO-RELEASE AT ALL and possibly EVER (since A) there is no diagnosis for ‘sex offense’ and therefore no cure and B) the government shrinks get to say when you’re cured, and they work for … you see the problem here).
J.Scalia isn’t taking his teeth out of Gov’s leg: “But you said no. I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators. And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying upon.” (8/9-14) [italics mine] And I would urge you, for your own edification and peace of mind, to roll those words of Scalia around in your mind for a bit, like tasting a fine wine. Do you see now what is at stake for the entire country and for the Constitutional ethos itself in this sex-offense mania? Even Scalia admits it.
Gov again falls back on sleazy wording: “I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.” (8/15-18) BUT OF COURSE the ‘responsible release’ – when you’re the government and dealing with insane sex offenders – is NOT TO RELEASE THEM AT ALL. And you think we are not all sitting at the Mad Hatter’s Tea Party between the Easter Bunny and a delegation of tooth fairies? This is what the country has come to, and in matters so vital that the future of the Constitutional ethos itself is in danger.
J.Kennedy moves in quickly: “Could the Federal Government order commitment of anyone who's been in Federal custody over the last 10 years?” (8/19-21). In other words, does Gov think that the government can now round up and lock up in a mental institution any current or former (at least for the last 10 years) Federal prisoner?
A neat question. And Kennedy doesn’t limit it to sex-offenders, either. This should be an open and shut answer.
But it isn’t.
Gov replies: “Justice Kennedy, I think that that would be a much harder case.” (8/22-23) In other words, as to whether the government – through Executive or Congressional authority – has the power to simply round up former convicts and put them in mental hospitals, the Solicitor General’s answer is: Gee, that’s a hard question. I’d sorta been expecting a ringing NO, NEVER, NO WAY, NOT ON MY WATCH kind of thing. But protecting the Constitution is precisely not what government attorneys – in either Democratic or Republican, Left or Right administrations – are hired to do in the Beltway. Do you see where things have gone in the past couple-three decades in the Beltway?
But then Gov seems to realize what she’s just said, and tries to recover: “And I would say that that would be a different case and that the Federal Government would not have the power to commit a person who is -- has been released from prison and whose period of supervised release is also completed. At that point the release has been -- the transfer to State responsibility and State control has occurred, and the Federal Government would have no appropriate role.” (9/4-12) In other words, well, if they’re already out then, OK, the Feds have “no appropriate role”. Nice.
J.Kennedy leads her gently along: “So that must be because there is a lack of Federal power.” (9/13-14).
She appreciates the help: “Yes, I think that that's correct, that at that point the State police power over a person has been fully reestablished.” (9/15-17).
But immediately, J.Scalia is back with his teeth hanging out: “But it's fully reestablished once he walks out of Federal prison, at least if he walks out of Federal prison into a State”. (9/18-20) In other words, then the Federal power ends with the sentence and the Feds then can’t simply scoop him up and put him in a nuthouse. From the moment of sentence-completion, it’s between the now ex-con and the State, not the Feds.
Gov sees the abyss opening before her eyes. “I think that that's not right, Justice Scalia. I think that there is a transition period, and what this statute is designed to do is to deal with that transition period and to make sure that sexually dangerous, mentally ill people don't fall through the cracks between Federal custody and the reestablishment of State control” (9/21-10/2). In other words, she has just invented a “transition” moment – which seems to me sort of like a quark or a muon or a lepton, something that’s ‘there in reality’ but too small for anybody to really see (like angels and demons?).
There is this new ‘transition’ moment when for a split fraction of Time you have finished your sentence and are Constitutionally free, but you haven’t actually gotten out of the government’s custody. Now in the old days, if the government kept you a moment longer than necessary to let you put your civilian clothes on and walk to the front gate, then it was kidnapping you.
But not in the Regulatory-Preventive, Safety and Protection Uber Alles America. Now there is this ‘moment’ – similar in Space and Time to that famous point where angels could dance on the head of a pin – when the government has no Constitutional authority or power over you, but still has (or needs to have) a ‘duty’ to make sure you are ‘responsibly’ released – which, of course, equals not-being-released-at-all.
And of course, Gov makes the mania-connection between ‘sexually dangerous’ and ‘mentally ill’ (more on that later). So if you’re both, then a little thing like pooh-poohing the Constitution isn’t so big a thing, is it, dearie? I mean – safety is soooo important in Our New Order, ja?
So government – with the help of the relevant advocacies, ideologues, and cottage industries battening on the SO mania – has invented a ‘moment’ in SpaceTime precisely to contain the site where and when the evil scam of “falling through the cracks” is perpetrated on the unsuspecting, helpless, terrified Citizenry by hordes of incorrigible, sex-crazed sex-offense monsters.
Ladies and Gentlemen, you are no longer in Constitutional Time; you are now in the Twilight Zone. But beware: once you are out of Constitutional Time you are more likely to run into Tyranny Time, which has a lot more razor-sharp teeth than the looney fauna at the Mad Hatter’s Tea Party.
Well, says J.Scalia, they aren’t falling through the cracks because before the Feds release such a person they can notify the State that “we are going to release a prisoner; we think he's sexually dangerous; you should take some action to be sure that he doesn't harm society. Because that's a State police function, it's none of our business”. (10/5-9)
Gov is ready for that: “I think Congress could reasonably find that that is insufficient. Congress could reasonably find that the State -- that the relationship between the State and the individual has been sufficiently disrupted as a result of what is in many of these cases an extended period of Federal custody, that it's not so easy to establish, reestablishment it all at once”. (10/10-17)
In other words, Congress doesn’t trust the States to do what the Beltway wants done with sex-offenders. But it doesn’t dare say that, so it throws up blah-blah-blah that sounds nice. Listen.
Gov is saying that somehow, mystically, the “relationship” between the State and the individual convict has been “sufficiently disrupted” by being in Federal prison that the State might not be able to quickly scoop this guy up (or may not want to). So the Feds will be glad to help and set up their own camps – errrr – hospitals. And someday if and when there’s a diagnosis, and then some further day if and when there’s a cure, and some further further day if and when this guy gets well, and some much further day if and when the Feds’ shrinks get around to saying that he’s well … on that fine day … the hearse will take the guy away with a Federal Certified Cured tag tied to the casket handles. This is treachery on a scale that will cry out to heaven.
Worse, this is a Federal bribe to the States – a seduction as skillful and treacherous as any perpetrated by a monster-stranger-sex-offender on any child. In effect the Feds are offering the States this deal: you don’t want to get involved in this sex offender mess any longer and you’re broke anyway, but you have the Xth Amendment authority in the matter – so the deal we’re offering is that you let us usurp your Xth Amendment power in this matter and we take these bums off the street for good. And leave it to us: we’ll come up with some excuse why this is all Constitutional. Whaddaya say?
This is what’s going on here.
J.Sotomayor observes that what Gov seems to be saying is that the Feds are claiming that “merely because of their -- their time in control of the individual, has an unlimited constitutional power to then civilly commit this dangerous person”. (10/20-11/3)
It DOES seem to be what the government is saying, doesn’t it?
Gov is quick to pooh-pooh that stick of dynamite: “I think what would prevent that, Justice Sotomayor, is the Due Process Clause. It is obviously the case that there are other constraints on governmental action than Article I”. (11/4-7) Yah. In mania law, there’s no such thing as genuine Due Process when the government is not only running the system but holding you, and has tagged you not only as an incorrigible criminal but as dangerously “mentally ill”.
J.Sotomayor is not impressed: “Well, what constrains the government under the Due Process Clause from invoking a dangerousness merely because someone has a long history. We have many criminal defendants with long histories of violent behavior. Many of them continue that violent behavior in prison and some of them at the end of their term are let out, because their term has been completed” (11/8-15).
In other words, once you’ve equated a record of violent convictions with ‘mental illness’ [and perhaps simply one conviction; see below] then you can imprison anybody, even a first time offender, as dangerously mentally ill. The Constitutional problem – she implies – is that once your sentence is completed the government has no more authority or responsibility to hold you and you’re free again.
The government nowadays is trying to make the case that since it has now made lots of political points by promising to provide Total Safety (from sex offenders, anyway, whom it helped to create as Monsters), then it needs to find some ‘authority’ in the Constitution, some ‘power’, that will let it fulfill the ‘responsibility’ that it has designed for itself (automatically setting itself in opposition to its already-sworn responsibility and duty to uphold and protect the Constitution!).
This is where the Regulatory-Preventive Nanny State has led the country and the Citizenry; and it was doing so long before Bush and Co. a mere 9 years ago crafted the Military-Interventionist State to fit through those same holes in the Constitutional ethos, punched open by the burgeoning Nanny State.
Slyly, Gov says that if you don’t have a “mental illness” then you can’t be civilly committed. (11/17-20). But of course, this is the cynical treachery at the heart of the mania, and it would make Stalin himself approve (which he should, since the Feds got the idea from him): if it’s your own cadres who get to say what is and isn’t ‘mentally ill’, then you can make any public promises you have to, because in the end the sausage will come out of your procedural process just the way you want it to.**
J.Sotomayor isn’t buying it and tries to get a straight answer: “… the connection between the nature of the mental illness and the constitutional power that you are claiming. What -- what is it that gives you that power?” (11/21-25)
Gov tries to flatter the Court (and deflect Sotomayor) with the Court’s own holdings: the Court itself (in Kansas v. Hendricks, the 1997 civil commitment of sex-offenders case which ruled that it’s Constitutionally OK) said that you need to prove not only ‘sexual dangerousness’ but ‘mental illness’. (12/1-8) This is a good place to remind you that ‘mental illness’ could be something as garden-variety as ‘personality disorder’, which most of the population, the Citizenry, could be diagnosed with. And, by the way, there is no actual official diagnosis called ‘sex offense’.
Gov deploys the Stalin scam again: “The question presented here is only whether, assuming that the Federal Government is acting within other constitutional constraints in making this civil commitment, whether Article I enables it to do so because of the special custodial role in these cases” (12/21-25) In other words, the government piously claims to be bound by the procedural process (although its own shrinks will be doing the deciding and all they have to show is that you still have that ‘personality disorder’ so you are still ‘mentally ill’).
And of course, the kicker is that the split second your sentence is finished, the government’s “special custodial role” ends and the government is no longer rightfully involved in your life so as to keep you locked up anywhere.
J.Scalia isn’t buying a bit of a it: “ … you are relying on the Necessary and Proper Clause right? [So] you say. But necessary and proper doesn't mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution. Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it's necessary for the good of society, but that's not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he's served his punishment” . (13/1-16)
In other words, you’re trying to use the Necessary and Proper Clause [the Constitutional principle that simply asserts that the government can pursue whatever is Necessary and Proper to achieve one of its clearly enumerated powers – which the government hasn’t demonstrated at all]. But the N&P Clause requires a power you already have, and you haven’t told anybody what that power is.
And moreover, he continues, since the criminal stuff is finished and he’s finished his sentence, what have you got? You can’t just say that it’s N&P for the good of society – because that’s not a responsibility that the Federal government is assigned in the Constitution. So just what power does the government have such that it claims this civil commitment is necessary and proper to carry it out?
Bingo.
Gov goes back to its old vaudeville routine: “The question is: is it necessary and proper to the beneficial exercise of Federal powers. And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal -- in that criminal justice system, are not released irresponsibly” (13/17-14/1).
In other words, the government has a responsibility to see that these types are not “released irresponsibly” (which means to say that they are not hardly ever released at all).
And she adds – shedding crocodile tears of sensitivity – that the government “knows that there is nobody else to take appropriate custody and care, and that the reason that there is nobody else to take appropriate custody and care has to do with the Federal action itself”. (14/24-15/4) In other words, since the Feds have gotten him convicted and imprisoned, then they have a responsibility to see the thing through – even though the Feds think he’s ‘mentally ill’ enough to need more locking-up, but only to care for him appropriately. Charming. Such care and concern.
And do you imagine that “custody” and “care” – two totally distinct things – are going to have equal priority in the Feds’ scheme? Recall that this was exactly the problem in government thinking that I pointed out in the CASOMB Report from California in my immediately preceding series of Posts. You are going to get a lot more ‘custody’ than ‘care’.
Gov is on a roll and lays it on more thickly: “And what the Federal Government is doing here is essentially to deal with this transition problem to make -- to make sure these people don't fall between the -- the cracks, and to ensure that where there is a sexually violent and mentally ill person who one has reason to believe will commit further offenses, that appropriate care and custody of those people is ensured”. (16/3-9) This is a ‘transition’, doncha know? Although a transition “to a responsible civil life” that will probably never see a completion because the guy is going to be locked up (for “custody and care”) for quite a long time.
And now the government doesn’t “know” that the guy is going to commit more crimes, but only “has reason to believe” that he will. But hey, these are only ‘words’ and ‘abstractions’ and the government really doesn’t have much time to quibble with such things because there’s an ‘emergency’ and the government has that ‘responsibility’ to protect everybody from everything. This is where the Regulatory and Preventive State is taking everybody.
Gov will go on to note helpfully that it costs more than $65,000 a year to do the right amount of “custody and care” and that most States – the poor things – don’t have that kind of cash just now. (18/9-12) But nowadays, will the Feds have that kind of cash?
J.Scalia returns to the core problems: “I mean, this -- this is a recipe for the Federal Government taking over everything” (20/4-6) [italics mine] Nor does he stop at that, after Gov mumbles a moment in surprise at such a bald observation.
“The States won't do it, therefore we have to do it. It has to be done and therefore the Federal Government steps in and does it”. (20/8-10) [italics mine] And Scalia is right: the dynamic here is that if the Feds see something that they want done, and yet the power to do it resides Constitutionally in the States, and yet the Feds want it done, then the Feds simply assume that they have the power to do it.
I want to say right here that this whole dynamic flows from Carol Gilligan’s psychological theory of 1982 that ‘women’ handle life the way a mother around a breakfast table handles a bunch of squalling kids: don’t ask questions (kids aren’t reasonable anyway) – instead just do what has to be done to calm them and nobody can say it’s a bad thing.
As I said before, you can run a breakfast table full of kids like this, but you can’t keep a Constitutional Republic like this. Citizens are – and must be – mature adults.
And the Constitution relies upon the assumption that a critical mass of voters will indeed have achieved a basic maturational competence in order to platform their civic competence to Ground the government. That’s why this government can be asserted to be “of the People, by the People, for the People”: it’s not a gift TO the People, it is grounded in the People’s authority and maturity. If anything – hear this, ye Beltway elites! – government is a gift FROM the People.
Gov has to work fast here. She asserts “that -- that Congress … has limited the civil commitment power only to people who have been -- who are in the custody of the Federal Government and over whom the Federal Government has a distinctive responsibility”. (20/12-16) Neat. Except that this can include an awful lot of people (and maybe not just sex-offenders). It means that just because you are in Federal custody, then because of the ‘principle’ the government is trying to put over on the Court here, you could be declared – as the Soviets did and the Chinese do – ‘mentally ill’. Perhaps, in the Chinese mode, because ‘you just don’t get it’ and oppose the regime. Do you see where these things are going?
And forgive me for declining the Feds’ offer of conscientious and responsible ‘help’. I recall Lincoln’s comparing slavery to being tarred, feathered, and ridden out of town on a rail; faced with that prospect a gentleman said to the sheriff that If it’s all the same to you, I’m inclined to decline the honor.
And while I’m at it, I will repeat here the Russian peasant’s prayer: May God bless and keep the Czar … far away from us! To which one might be inclined to intone a hearty and serious Amen.
But Gov won’t let it rest there: she compares what the government wants to do here to the government having the right to retain an inmate who contracted a highly contagious disease – tuberculosis, say – while in prison. Surely, she says, you wouldn’t deny the government the authority to keep him until he was no longer infected – think of it, she purrs, as a “quarantining authority”. (20/17-25)
Of course, the sex-offender didn’t ‘catch’ anything while he was in prison, and sex-offense is not even a psychologically diagnosable disease – so this example doesn’t really apply here at all.
Trying to allay the doubts of J.Sotomayor, Gov then comes up with the fact that in addition to that “special relationship” you have with the Feds once you are in custody, the sex offenders are also “the people most likely to violate the Commerce Clause [crossing State lines to do their evil things] in the future … most likely to violate the laws because they have done so in the past and because they have mental conditions that make it extremely difficult – “ (23/10-16)
So once again you see the government claiming to read the tea leaves – and not just with sex offenders, but on principle, which means with just about anybody (and this after it failed to read the tea leaves in the Iraq War, Af-Pak, and the economy).
And the equally frakkulous principle that since you have violated the laws once, then you are most likely to violate them again. This principle gives the government tyrannical power not only over sex offenders over any Citizen who has broken a law – and that would probably be, let’s admit it, just about everybody.
Plus: there’s that old falsehood that most sex-offenses are committed by repeat offenders, when it’s now clear that 90% are committed by first-time offenders and that sex-offenders have the lowest recidivism rate of just about any offense-group. You wonder if the government wants to tell the truth at all.
J.Stevens raises the uncomfortable point that this statute applies not only to sex-offenders but to anybody who has committed a crime. A person, he notes, could be a bank robber, and yet just before his release could be declared by the Feds to be a “potential sexual offender” - to which Gov replies that Yes, that’s sorta true. (24/3-11)
But, Gov slyly notes, only if a person had at some point engaged in “sexually violent behavior” (24/20) Now I hold no brief for sexual violence, but the entire SO community knows that “sexually violent behavior” – especially in the opinion of clinical providers of a government or vicitmist bent – could be defined as just about anything. Which means that if the offense could be anything, then anyone could be an offender. This is a government at war with its Citizenry.
Or more accurately: a government declaring war on its Citizenry.
Now this concludes the first half of the Oral Arguments – the Justices hearing from the Petitioner, the Government. In the next Post I’ll take up the Justices as they hear from counsel for the Respondents/Defendants.
I took this much time – and didn’t simply summarize the issues in an analysis approach – to give you a sense of the drama (and I don’t mean soap opera). And so that you can see how matters of huge portent to the future of the Republic and The People can hide in what might appear to be lots of words and subject not of general interest to folks.
And so that you can get a deeper sense of how important the work against the SO mania is: the mania itself is a symptom of things going grievously wrong in the country, and most surely in the government – Federal even more ominously than State.
Lots to do!
NOTES
*See my Post on an excellent Glenn Greenwald article about government and the Constitutional priority of Due Process over a purported right to Total Protection here. The Post contains a link to the article.
**It was this diabolically brilliant insight of Stalin’s that provided the US military the solution to the impossible demand Harry Truman, with Jimmy Doolittle’s recommendation, made upon it in 1946: make the military justice system conform to American law and the Constitutional ethos. It was impossible because the whole idea of a military is to take orders from the top down and guarantee a victorious outcome.
But with Stalin’s plan, you can set the stage to look just like a Perry Mason courtroom, except with nice uniforms and more flags, and still get exactly the outcome you want because everybody in the scene works for you: judge, prosecutor, cops (the sainted NCIS who got a TV show about them), the prosecutors (the sainted JAGs who got a TV show about them), the defense counsel, the witnesses, and the defendant. And the government that runs the show – through the General officer who convened the courtmartial in the first place – is also a Party to the case. Wheeeeeeee! If the conviction rate is only 97% it’s because 100% might look suspicious.
The military waited to see if Harry was dis-elected in 1948, and when he wasn’t they put Stalin’s idea into uniform and called it the Uniform Code of Military Justice, unveling it in 1950. Marvelous. Fifty years later, when it was reviewed from within the government itself, the UCMJ was assessed as still having “too much command influence” to really work as advertised. But of course, the advertising is the only ‘Constitutional’ part of the thing.
And the band plays on.
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”.
You can see how much devilry has taken up residence in that web of assertions, implications and half-truths. And I think you will be impressed by the way that (alas, just a few of) the Justices refuse to be taken in.
3/11-4/2: Gov claims that government has this power through Article I (Congressional authority) as exemplified in a 1940s law Congress passed, enabling the Federal prisons to continue to incarcerate an inmate who had gone insane while in government custody, until such time as the inmate had recovered.
Note first that both Congress and the Executive have burned together now into a superfire of Federal Authority: this isn’t some President-vs-Congress type of struggle: this is both Branches seeking to assert increasing power over society and the Citizenry (even if, ostensibly, in order to ‘protect’ that Citizenry).
Second, keep an eye on that 1940s law (called here “Section 4246”) since much hinges on the difference between 1) going-insane while you are in custody and 2) proving you were already insane by virtue of the crime you committed in the first place (as the government asserts about sex-offenders).
Gov piously observes that “it would be dangerous to turn them loose upon society where no State will assume responsibility for their custody” (3/24-4/2). But a State may refuse to simply take a Federal releasee and confine him for the simple reason that, though a sex offender, he is not insane and it would be unconstitutional to simply scoop him up for ‘the public good and convenience’. The Feds’ solution is to claim that they have the right to keep sex-offender inmates even after the sentence is finished, as a public service, since the Feds have a ‘responsibility’ to ‘release inmates responsibly’ (about which more later).
Gov continues (4/5-12) that the Feds now face “a similar problem”: “The Federal Government has mentally ill, sexually dangerous persons in its custody. It knows that those persons, if released, will commit serious sexual offenses; and it knows too that States are often not in a position to deal with such dangers, not in a position to take custody and care and responsibility for those persons upon release from Federal prison”.
Well, there’s no obvious connection between mental-illness and sexual-dangerousness. And there is no way that anybody – including the government (can you say Iraq War and Deregulated Financial Sector?) can “know” the future, especially the actions of an individual person. And then you get this sly gambit where the Feds want to make it sound as if the poor States are just too busy, poor, or distracted to keep up with this oh-so-important problem … whereas it’s easily possible that a State – which under the Xth Amendment actually has the authority and power in this matter – simply doesn’t want to play this rather dirty and unconstitutional game that the Feds have set up – which appears fine with the Feds because what they really want is all on their own to confine sex-offenders indefinitely.
Worse, at 4/13-16, the Feds want to make this seem it ain’t but a thang: “This is essentially a transitional problem that the Court was -- that the Congress was dealing with, how to manage the transition from Federal custody to State superintendence and responsibility”. This is a sleazy bit of frakkery: this is not a ‘transition’ problem because the Feds precisely don’t intend for there to be any transition at all; just a room change from the ‘prison’ ward to the ‘incurably dangerous’ ward, where the sentence – you may rely on it – will be for all practical purposes Permanent.
And at 5/21, under questioning from J. Kennedy, Gov admits as much: it is “not the usual course of events” that when the government asks the State to put this guy into mental-custody that the State agrees. So the Feds know that if they get this power then the States will offer little interference, especially since the Feds have now frakked up the economy to the point where the States themselves are virtually bankrupt.
Then, marvelously, J.Scalia (of whom I am no great fan), asks the Huge Question: “What -- what -- what power conferred upon the Federal Government by the Constitution permits the Federal Government to assure that sexual predators are not at large?” (6/17-20) [italics mine]
HERE IT IS. The question that has been glaring in the lurid mania-light for 20 years, waiting to be noticed and answered – exactly what the Mania could never face up to and did not dare allow to come into public discussion: where does it say in the Constitution that the Feds have the power and responsibility to keep the world – or the country – safe from sex-offenders?*
Gov responds slyly: “I think the power, Justice Scalia, is the power to run a responsible criminal justice system, to run a criminal justice system that does not itself endanger the public”. (6/21-24) In other words, if a person is convicted, serves his sentence, and is ready for release, then the government would be “endangering the public” by doing what is Constitutionally required.
Or to put it more succinctly: the government is saying here that to act Constitutionally will endanger the public – and then, drawing itself up in the robes of Sensitive Righteousness, the government, with Eddy Haskell levels of smarm, asserts that it is not willing to endanger the public (Iraq War? Economic collapse?)
You can see here the clear outline of what I have often said: from the very outset and in the very foundations of the past decades’ Feminist-from-the-Left and Law-and-Order-from-the-Right stances has been the lethal wraith of anti-Constitutionality: that both the Left and the Right were demanding – knowingly or otherwise – that the government sidestep the Constitution (wasn’t it “quaint” anyway?) in order to meet their demands for Law and Order, Protection and Safety.
C.J.Roberts quickly inquires if Gov is saying that the government, including Congress, is saying that it does not have the power to simply pass a law saying that sex offenders are to be put into mental hospitals until they can be cured (6/25-7/7).
Slyly, Gov answers the particular situation without admitting that Congress (now and forever) doesn’t have the Constitutional power: all these cases involve incarcerated persons already convicted of a crime and in custody (7/14/24).
Roberts closes in: “Well, why doesn't the Federal Government's authority to have custody because of the criminal justice system end when the criminal justice system is exhausted? In other words, when the sentence is done?” (7/25-8/4) In other words, if the government’s only authority stems from the fact that the person is convicted and imprisoned until completion of sentence, then why doesn’t the government’s power end when the sentence ends – and that’s that?
(I hope you’re getting a sense of the real drama – even excitement – in the flow of these vital ideas.)
Gov has to fall back on the pious bit: “Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly” (8/5-8) But of course, ‘responsible release’ means NO-RELEASE AT ALL and possibly EVER (since A) there is no diagnosis for ‘sex offense’ and therefore no cure and B) the government shrinks get to say when you’re cured, and they work for … you see the problem here).
J.Scalia isn’t taking his teeth out of Gov’s leg: “But you said no. I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators. And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying upon.” (8/9-14) [italics mine] And I would urge you, for your own edification and peace of mind, to roll those words of Scalia around in your mind for a bit, like tasting a fine wine. Do you see now what is at stake for the entire country and for the Constitutional ethos itself in this sex-offense mania? Even Scalia admits it.
Gov again falls back on sleazy wording: “I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.” (8/15-18) BUT OF COURSE the ‘responsible release’ – when you’re the government and dealing with insane sex offenders – is NOT TO RELEASE THEM AT ALL. And you think we are not all sitting at the Mad Hatter’s Tea Party between the Easter Bunny and a delegation of tooth fairies? This is what the country has come to, and in matters so vital that the future of the Constitutional ethos itself is in danger.
J.Kennedy moves in quickly: “Could the Federal Government order commitment of anyone who's been in Federal custody over the last 10 years?” (8/19-21). In other words, does Gov think that the government can now round up and lock up in a mental institution any current or former (at least for the last 10 years) Federal prisoner?
A neat question. And Kennedy doesn’t limit it to sex-offenders, either. This should be an open and shut answer.
But it isn’t.
Gov replies: “Justice Kennedy, I think that that would be a much harder case.” (8/22-23) In other words, as to whether the government – through Executive or Congressional authority – has the power to simply round up former convicts and put them in mental hospitals, the Solicitor General’s answer is: Gee, that’s a hard question. I’d sorta been expecting a ringing NO, NEVER, NO WAY, NOT ON MY WATCH kind of thing. But protecting the Constitution is precisely not what government attorneys – in either Democratic or Republican, Left or Right administrations – are hired to do in the Beltway. Do you see where things have gone in the past couple-three decades in the Beltway?
But then Gov seems to realize what she’s just said, and tries to recover: “And I would say that that would be a different case and that the Federal Government would not have the power to commit a person who is -- has been released from prison and whose period of supervised release is also completed. At that point the release has been -- the transfer to State responsibility and State control has occurred, and the Federal Government would have no appropriate role.” (9/4-12) In other words, well, if they’re already out then, OK, the Feds have “no appropriate role”. Nice.
J.Kennedy leads her gently along: “So that must be because there is a lack of Federal power.” (9/13-14).
She appreciates the help: “Yes, I think that that's correct, that at that point the State police power over a person has been fully reestablished.” (9/15-17).
But immediately, J.Scalia is back with his teeth hanging out: “But it's fully reestablished once he walks out of Federal prison, at least if he walks out of Federal prison into a State”. (9/18-20) In other words, then the Federal power ends with the sentence and the Feds then can’t simply scoop him up and put him in a nuthouse. From the moment of sentence-completion, it’s between the now ex-con and the State, not the Feds.
Gov sees the abyss opening before her eyes. “I think that that's not right, Justice Scalia. I think that there is a transition period, and what this statute is designed to do is to deal with that transition period and to make sure that sexually dangerous, mentally ill people don't fall through the cracks between Federal custody and the reestablishment of State control” (9/21-10/2). In other words, she has just invented a “transition” moment – which seems to me sort of like a quark or a muon or a lepton, something that’s ‘there in reality’ but too small for anybody to really see (like angels and demons?).
There is this new ‘transition’ moment when for a split fraction of Time you have finished your sentence and are Constitutionally free, but you haven’t actually gotten out of the government’s custody. Now in the old days, if the government kept you a moment longer than necessary to let you put your civilian clothes on and walk to the front gate, then it was kidnapping you.
But not in the Regulatory-Preventive, Safety and Protection Uber Alles America. Now there is this ‘moment’ – similar in Space and Time to that famous point where angels could dance on the head of a pin – when the government has no Constitutional authority or power over you, but still has (or needs to have) a ‘duty’ to make sure you are ‘responsibly’ released – which, of course, equals not-being-released-at-all.
And of course, Gov makes the mania-connection between ‘sexually dangerous’ and ‘mentally ill’ (more on that later). So if you’re both, then a little thing like pooh-poohing the Constitution isn’t so big a thing, is it, dearie? I mean – safety is soooo important in Our New Order, ja?
So government – with the help of the relevant advocacies, ideologues, and cottage industries battening on the SO mania – has invented a ‘moment’ in SpaceTime precisely to contain the site where and when the evil scam of “falling through the cracks” is perpetrated on the unsuspecting, helpless, terrified Citizenry by hordes of incorrigible, sex-crazed sex-offense monsters.
Ladies and Gentlemen, you are no longer in Constitutional Time; you are now in the Twilight Zone. But beware: once you are out of Constitutional Time you are more likely to run into Tyranny Time, which has a lot more razor-sharp teeth than the looney fauna at the Mad Hatter’s Tea Party.
Well, says J.Scalia, they aren’t falling through the cracks because before the Feds release such a person they can notify the State that “we are going to release a prisoner; we think he's sexually dangerous; you should take some action to be sure that he doesn't harm society. Because that's a State police function, it's none of our business”. (10/5-9)
Gov is ready for that: “I think Congress could reasonably find that that is insufficient. Congress could reasonably find that the State -- that the relationship between the State and the individual has been sufficiently disrupted as a result of what is in many of these cases an extended period of Federal custody, that it's not so easy to establish, reestablishment it all at once”. (10/10-17)
In other words, Congress doesn’t trust the States to do what the Beltway wants done with sex-offenders. But it doesn’t dare say that, so it throws up blah-blah-blah that sounds nice. Listen.
Gov is saying that somehow, mystically, the “relationship” between the State and the individual convict has been “sufficiently disrupted” by being in Federal prison that the State might not be able to quickly scoop this guy up (or may not want to). So the Feds will be glad to help and set up their own camps – errrr – hospitals. And someday if and when there’s a diagnosis, and then some further day if and when there’s a cure, and some further further day if and when this guy gets well, and some much further day if and when the Feds’ shrinks get around to saying that he’s well … on that fine day … the hearse will take the guy away with a Federal Certified Cured tag tied to the casket handles. This is treachery on a scale that will cry out to heaven.
Worse, this is a Federal bribe to the States – a seduction as skillful and treacherous as any perpetrated by a monster-stranger-sex-offender on any child. In effect the Feds are offering the States this deal: you don’t want to get involved in this sex offender mess any longer and you’re broke anyway, but you have the Xth Amendment authority in the matter – so the deal we’re offering is that you let us usurp your Xth Amendment power in this matter and we take these bums off the street for good. And leave it to us: we’ll come up with some excuse why this is all Constitutional. Whaddaya say?
This is what’s going on here.
J.Sotomayor observes that what Gov seems to be saying is that the Feds are claiming that “merely because of their -- their time in control of the individual, has an unlimited constitutional power to then civilly commit this dangerous person”. (10/20-11/3)
It DOES seem to be what the government is saying, doesn’t it?
Gov is quick to pooh-pooh that stick of dynamite: “I think what would prevent that, Justice Sotomayor, is the Due Process Clause. It is obviously the case that there are other constraints on governmental action than Article I”. (11/4-7) Yah. In mania law, there’s no such thing as genuine Due Process when the government is not only running the system but holding you, and has tagged you not only as an incorrigible criminal but as dangerously “mentally ill”.
J.Sotomayor is not impressed: “Well, what constrains the government under the Due Process Clause from invoking a dangerousness merely because someone has a long history. We have many criminal defendants with long histories of violent behavior. Many of them continue that violent behavior in prison and some of them at the end of their term are let out, because their term has been completed” (11/8-15).
In other words, once you’ve equated a record of violent convictions with ‘mental illness’ [and perhaps simply one conviction; see below] then you can imprison anybody, even a first time offender, as dangerously mentally ill. The Constitutional problem – she implies – is that once your sentence is completed the government has no more authority or responsibility to hold you and you’re free again.
The government nowadays is trying to make the case that since it has now made lots of political points by promising to provide Total Safety (from sex offenders, anyway, whom it helped to create as Monsters), then it needs to find some ‘authority’ in the Constitution, some ‘power’, that will let it fulfill the ‘responsibility’ that it has designed for itself (automatically setting itself in opposition to its already-sworn responsibility and duty to uphold and protect the Constitution!).
This is where the Regulatory-Preventive Nanny State has led the country and the Citizenry; and it was doing so long before Bush and Co. a mere 9 years ago crafted the Military-Interventionist State to fit through those same holes in the Constitutional ethos, punched open by the burgeoning Nanny State.
Slyly, Gov says that if you don’t have a “mental illness” then you can’t be civilly committed. (11/17-20). But of course, this is the cynical treachery at the heart of the mania, and it would make Stalin himself approve (which he should, since the Feds got the idea from him): if it’s your own cadres who get to say what is and isn’t ‘mentally ill’, then you can make any public promises you have to, because in the end the sausage will come out of your procedural process just the way you want it to.**
J.Sotomayor isn’t buying it and tries to get a straight answer: “… the connection between the nature of the mental illness and the constitutional power that you are claiming. What -- what is it that gives you that power?” (11/21-25)
Gov tries to flatter the Court (and deflect Sotomayor) with the Court’s own holdings: the Court itself (in Kansas v. Hendricks, the 1997 civil commitment of sex-offenders case which ruled that it’s Constitutionally OK) said that you need to prove not only ‘sexual dangerousness’ but ‘mental illness’. (12/1-8) This is a good place to remind you that ‘mental illness’ could be something as garden-variety as ‘personality disorder’, which most of the population, the Citizenry, could be diagnosed with. And, by the way, there is no actual official diagnosis called ‘sex offense’.
Gov deploys the Stalin scam again: “The question presented here is only whether, assuming that the Federal Government is acting within other constitutional constraints in making this civil commitment, whether Article I enables it to do so because of the special custodial role in these cases” (12/21-25) In other words, the government piously claims to be bound by the procedural process (although its own shrinks will be doing the deciding and all they have to show is that you still have that ‘personality disorder’ so you are still ‘mentally ill’).
And of course, the kicker is that the split second your sentence is finished, the government’s “special custodial role” ends and the government is no longer rightfully involved in your life so as to keep you locked up anywhere.
J.Scalia isn’t buying a bit of a it: “ … you are relying on the Necessary and Proper Clause right? [So] you say. But necessary and proper doesn't mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution. Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it's necessary for the good of society, but that's not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he's served his punishment” . (13/1-16)
In other words, you’re trying to use the Necessary and Proper Clause [the Constitutional principle that simply asserts that the government can pursue whatever is Necessary and Proper to achieve one of its clearly enumerated powers – which the government hasn’t demonstrated at all]. But the N&P Clause requires a power you already have, and you haven’t told anybody what that power is.
And moreover, he continues, since the criminal stuff is finished and he’s finished his sentence, what have you got? You can’t just say that it’s N&P for the good of society – because that’s not a responsibility that the Federal government is assigned in the Constitution. So just what power does the government have such that it claims this civil commitment is necessary and proper to carry it out?
Bingo.
Gov goes back to its old vaudeville routine: “The question is: is it necessary and proper to the beneficial exercise of Federal powers. And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal -- in that criminal justice system, are not released irresponsibly” (13/17-14/1).
In other words, the government has a responsibility to see that these types are not “released irresponsibly” (which means to say that they are not hardly ever released at all).
And she adds – shedding crocodile tears of sensitivity – that the government “knows that there is nobody else to take appropriate custody and care, and that the reason that there is nobody else to take appropriate custody and care has to do with the Federal action itself”. (14/24-15/4) In other words, since the Feds have gotten him convicted and imprisoned, then they have a responsibility to see the thing through – even though the Feds think he’s ‘mentally ill’ enough to need more locking-up, but only to care for him appropriately. Charming. Such care and concern.
And do you imagine that “custody” and “care” – two totally distinct things – are going to have equal priority in the Feds’ scheme? Recall that this was exactly the problem in government thinking that I pointed out in the CASOMB Report from California in my immediately preceding series of Posts. You are going to get a lot more ‘custody’ than ‘care’.
Gov is on a roll and lays it on more thickly: “And what the Federal Government is doing here is essentially to deal with this transition problem to make -- to make sure these people don't fall between the -- the cracks, and to ensure that where there is a sexually violent and mentally ill person who one has reason to believe will commit further offenses, that appropriate care and custody of those people is ensured”. (16/3-9) This is a ‘transition’, doncha know? Although a transition “to a responsible civil life” that will probably never see a completion because the guy is going to be locked up (for “custody and care”) for quite a long time.
And now the government doesn’t “know” that the guy is going to commit more crimes, but only “has reason to believe” that he will. But hey, these are only ‘words’ and ‘abstractions’ and the government really doesn’t have much time to quibble with such things because there’s an ‘emergency’ and the government has that ‘responsibility’ to protect everybody from everything. This is where the Regulatory and Preventive State is taking everybody.
Gov will go on to note helpfully that it costs more than $65,000 a year to do the right amount of “custody and care” and that most States – the poor things – don’t have that kind of cash just now. (18/9-12) But nowadays, will the Feds have that kind of cash?
J.Scalia returns to the core problems: “I mean, this -- this is a recipe for the Federal Government taking over everything” (20/4-6) [italics mine] Nor does he stop at that, after Gov mumbles a moment in surprise at such a bald observation.
“The States won't do it, therefore we have to do it. It has to be done and therefore the Federal Government steps in and does it”. (20/8-10) [italics mine] And Scalia is right: the dynamic here is that if the Feds see something that they want done, and yet the power to do it resides Constitutionally in the States, and yet the Feds want it done, then the Feds simply assume that they have the power to do it.
I want to say right here that this whole dynamic flows from Carol Gilligan’s psychological theory of 1982 that ‘women’ handle life the way a mother around a breakfast table handles a bunch of squalling kids: don’t ask questions (kids aren’t reasonable anyway) – instead just do what has to be done to calm them and nobody can say it’s a bad thing.
As I said before, you can run a breakfast table full of kids like this, but you can’t keep a Constitutional Republic like this. Citizens are – and must be – mature adults.
And the Constitution relies upon the assumption that a critical mass of voters will indeed have achieved a basic maturational competence in order to platform their civic competence to Ground the government. That’s why this government can be asserted to be “of the People, by the People, for the People”: it’s not a gift TO the People, it is grounded in the People’s authority and maturity. If anything – hear this, ye Beltway elites! – government is a gift FROM the People.
Gov has to work fast here. She asserts “that -- that Congress … has limited the civil commitment power only to people who have been -- who are in the custody of the Federal Government and over whom the Federal Government has a distinctive responsibility”. (20/12-16) Neat. Except that this can include an awful lot of people (and maybe not just sex-offenders). It means that just because you are in Federal custody, then because of the ‘principle’ the government is trying to put over on the Court here, you could be declared – as the Soviets did and the Chinese do – ‘mentally ill’. Perhaps, in the Chinese mode, because ‘you just don’t get it’ and oppose the regime. Do you see where these things are going?
And forgive me for declining the Feds’ offer of conscientious and responsible ‘help’. I recall Lincoln’s comparing slavery to being tarred, feathered, and ridden out of town on a rail; faced with that prospect a gentleman said to the sheriff that If it’s all the same to you, I’m inclined to decline the honor.
And while I’m at it, I will repeat here the Russian peasant’s prayer: May God bless and keep the Czar … far away from us! To which one might be inclined to intone a hearty and serious Amen.
But Gov won’t let it rest there: she compares what the government wants to do here to the government having the right to retain an inmate who contracted a highly contagious disease – tuberculosis, say – while in prison. Surely, she says, you wouldn’t deny the government the authority to keep him until he was no longer infected – think of it, she purrs, as a “quarantining authority”. (20/17-25)
Of course, the sex-offender didn’t ‘catch’ anything while he was in prison, and sex-offense is not even a psychologically diagnosable disease – so this example doesn’t really apply here at all.
Trying to allay the doubts of J.Sotomayor, Gov then comes up with the fact that in addition to that “special relationship” you have with the Feds once you are in custody, the sex offenders are also “the people most likely to violate the Commerce Clause [crossing State lines to do their evil things] in the future … most likely to violate the laws because they have done so in the past and because they have mental conditions that make it extremely difficult – “ (23/10-16)
So once again you see the government claiming to read the tea leaves – and not just with sex offenders, but on principle, which means with just about anybody (and this after it failed to read the tea leaves in the Iraq War, Af-Pak, and the economy).
And the equally frakkulous principle that since you have violated the laws once, then you are most likely to violate them again. This principle gives the government tyrannical power not only over sex offenders over any Citizen who has broken a law – and that would probably be, let’s admit it, just about everybody.
Plus: there’s that old falsehood that most sex-offenses are committed by repeat offenders, when it’s now clear that 90% are committed by first-time offenders and that sex-offenders have the lowest recidivism rate of just about any offense-group. You wonder if the government wants to tell the truth at all.
J.Stevens raises the uncomfortable point that this statute applies not only to sex-offenders but to anybody who has committed a crime. A person, he notes, could be a bank robber, and yet just before his release could be declared by the Feds to be a “potential sexual offender” - to which Gov replies that Yes, that’s sorta true. (24/3-11)
But, Gov slyly notes, only if a person had at some point engaged in “sexually violent behavior” (24/20) Now I hold no brief for sexual violence, but the entire SO community knows that “sexually violent behavior” – especially in the opinion of clinical providers of a government or vicitmist bent – could be defined as just about anything. Which means that if the offense could be anything, then anyone could be an offender. This is a government at war with its Citizenry.
Or more accurately: a government declaring war on its Citizenry.
Now this concludes the first half of the Oral Arguments – the Justices hearing from the Petitioner, the Government. In the next Post I’ll take up the Justices as they hear from counsel for the Respondents/Defendants.
I took this much time – and didn’t simply summarize the issues in an analysis approach – to give you a sense of the drama (and I don’t mean soap opera). And so that you can see how matters of huge portent to the future of the Republic and The People can hide in what might appear to be lots of words and subject not of general interest to folks.
And so that you can get a deeper sense of how important the work against the SO mania is: the mania itself is a symptom of things going grievously wrong in the country, and most surely in the government – Federal even more ominously than State.
Lots to do!
NOTES
*See my Post on an excellent Glenn Greenwald article about government and the Constitutional priority of Due Process over a purported right to Total Protection here. The Post contains a link to the article.
**It was this diabolically brilliant insight of Stalin’s that provided the US military the solution to the impossible demand Harry Truman, with Jimmy Doolittle’s recommendation, made upon it in 1946: make the military justice system conform to American law and the Constitutional ethos. It was impossible because the whole idea of a military is to take orders from the top down and guarantee a victorious outcome.
But with Stalin’s plan, you can set the stage to look just like a Perry Mason courtroom, except with nice uniforms and more flags, and still get exactly the outcome you want because everybody in the scene works for you: judge, prosecutor, cops (the sainted NCIS who got a TV show about them), the prosecutors (the sainted JAGs who got a TV show about them), the defense counsel, the witnesses, and the defendant. And the government that runs the show – through the General officer who convened the courtmartial in the first place – is also a Party to the case. Wheeeeeeee! If the conviction rate is only 97% it’s because 100% might look suspicious.
The military waited to see if Harry was dis-elected in 1948, and when he wasn’t they put Stalin’s idea into uniform and called it the Uniform Code of Military Justice, unveling it in 1950. Marvelous. Fifty years later, when it was reviewed from within the government itself, the UCMJ was assessed as still having “too much command influence” to really work as advertised. But of course, the advertising is the only ‘Constitutional’ part of the thing.
And the band plays on.
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