Antifederalists Vindicated
U.S. v. Comstock
If the Antifederalists were still on the scene today, they might be saying — as they would have been saying right along — “Told you so.”
The latest occasion is this week’s 7-2 Supreme Court decision in U.S. v. Comstock et al., upholding a federal statute that permits the civil commitment of a federal prisoner – beyond his prison sentence – if he has previously committed a violent sex crime or sexually molested a child, “suffers from a serious mental illness,” and thus is “sexually dangerous to others,” meaning, “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”
Note well: Someone in the federal prison system can be held indefinitely after he’s served his sentence. For the purposes of this article, I leave aside some extremely important issues, including whether any government should have the power to incarcerate (even if in a “hospital”) someone because a psychiatrist says he has a “mental illness” and may “have serious difficulty in refraining” from sexually criminal activity in the future. This is a far cry from the traditional criminal law. Readers of The Freeman will know that these subjects have been thoroughly examined over the years by Thomas Szasz, who maintains that the diagnosis “mental illness” is a metaphorical, pseudoscientific way of dealing with undesirable behavior; that civil commitment, or involuntary mental hospitalization, is a “crime against humanity”; and that people should be punished with only after they have been proved to have committed a crime and only for that crime. (He has also relentlessly opposed the insanity defense and verdict.)
The statute in question surely violates the principles of liberty and justice. But the question is whether it violates the Constitution.
The chief matter before the Court was whether the law satisfies the Constitution’s Necessary and Proper Clause (Article I, Section 8, Clause 18), which authorizes Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Writing for the majority, Justice Stephen Breyer said that the commitment statute falls well within the clause as it has been interpreted from the earliest days of the Republic. Quoting terms from the early landmark case McCulloch v. Maryland, Breyer wrote, “[T]he Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’”
He noted that past Courts have allowed Congress great discretion in determining if a means is necessary (not “absolutely necessary”) and proper for achieving a constitutional end.
Indeed, Breyer wrote, the chain between a statute and the constitutional powers that it is deemed to executing may have several links. “Congress has the implied power to criminalize any conduct that might interfere with the exercise of an enumerated power, and also the additional power to imprison people who violate those (inferentially authorized) laws, and the additional power to provide for the safe and reasonable management of those prisons, and the additional power to regulate the prisoners’ behavior even after their release.”
Thomas Dissent
In his dissent, Justice Clarence Thomas (writing on behalf of Justice Antonin Scalia also) said that Breyer has misread the Clause and long precedent. For Thomas, convicting someone of a federal crime under a law that satisfies the Necessary and Proper Clause gives the government no additional authority to civilly commit after sentence is served. In other words, whatever enumerated power ultimately justified the person’s initial imprisonment, it cannot convey legitimacy to postsentence detention. The chain is too long for Thomas.
“The Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.” He added, “[I]f followed to its logical extreme, [Breyer’s approach] would result in an unwarranted expansion of federal power.
Is It a Draw?
Both sides appear to make sound constitutional arguments. Although I of course prefer Thomas’s conclusion – commitment is an outrageous violation of individual liberty – that is irrelevant. The point is, people can reach opposing conclusions through the text of the Constitution and past decisions. Remember: The Court’s four conservative “strict constructionists” split down the middle.
That’s where the Antifederalists come in. The Necessary and Proper Clause was one of several clauses they most objected to when the text of the Constitution was released to the public in 1787. Combined with other vaguely “enumerated powers,” they found the clause threatening to liberty and a portent of big government.
As the Antifederalist “Brutus” wrote, because of the Necessary and Proper Clause and the Supremacy Clause, “This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends.”
And “Federal Farmer,” wrote, “To have any proper idea of their [the laws’] extent, we must carefully examine the legislative, executive and judicial powers proposed to be lodged in the general government, and consider them in connection with [the Necessary and Proper Clause]….[I]it is almost impossible to have a just conception of these powers, or of the extent and number of the laws which may be deemed necessary and proper to carry them into effect….”
In other words, the constitutional text is not nearly as crisply clear as people would like to think, despite the temptation to read one’s own values into it. Thus it makes a shallow foundation for liberty. We can rely on no text to interpret and enforce itself, so we must make the case for liberty and justice directly.
Their contemporaries should have listened to the Antifederalists’ warnings when they had the chance.
Comment by D. Saul Weiner on 21 May 2010:
I generally loathe the measures favored by those who claim to be “tough on crime” and am against civil commitment. However, it is not obvious to me that it is “an outrageous violation of individual liberty” to keep someone locked up when we have good reason to believe he will continue to commit sex crimes after his sentence is up. This may indicate that his original sentence should have been longer, or his release should have been contingent upon his rehabilitation. I struggle with what is the best approach here, but it does strike me as foolhardy to return people such as these to society for them to commit more such crimes.
Comment by Roy Cordato on 21 May 2010:
Sheldon–your last three sentences say it all. Bravo!
Comment by Sheldon Richman on 21 May 2010:
We don’t want to fall into a “Minority Report” pre-crime frame of mind.
Comment by Sheldon Richman on 21 May 2010:
By the way, privatizing government property would give individuals more scope for dealing with known sex offenders. That’s a whole subject to be developed.
Comment by akaGaGa on 21 May 2010:
The problem I see with this decision is that it buries the actual issue. If sex offenders should be locked up for life, then change the laws to reflect that. But that would be politically unpopular, and might violate 8th amendment issues of cruel and unusual punishment. So instead, we ignore the law and the original sentence, which allows us to do what we want without any public discussion. Typical federal power grab.
Comment by Neverfox on 21 May 2010:
I agree with Szasz’s assessment of psychiatry but his theory of justice seems to be missing something. Besides using retributive language, it ignores the inclusion of threat in the definition of aggression. As Roderick Long puts it,
Therefore, on the one hand, it seems perfectly plausible that a libertarian theory of justice would include the ability to detain someone for as long as they remained a threat (and no longer). This would be true above and beyond any sentences handed down by private courts. After all, a libertarian theory of justice isn’t beholden to the rule of positive law, but natural law. So if we knew for certain that the person was “a continuing danger to the innocent,” it is less clear cut that the fact that “he served his sentence” has any relevance.
The problem is that we don’t have such perfect knowledge. What really constitutes a threat? The possibility for abuse of that concept is extremely high, as Szasz tells us. Does the person have to literally be in the act of initiating sexual violence? Can a past history combined with the lack of any indication that circumstances have changed be enough? Like you say, Sheldon, “That’s a whole subject to be developed.” I find it one of the more fascinating and difficult subjects in libertarian legal theory.
Comment by Sheldon Richman on 21 May 2010:
Neverfox, you make a valid point. Of course I can’t speak for Dr. Szasz, and my few sentences were admittedly summary. Please don’t hold him responsible for what I’ve said here.
Pingback by NewsReload on 21 May 2010:
[...] The latest occasion is this week’s 7-2 Supreme Court decision in U.S. v. Comstock et al., upholding a federal statute that permits the civil commitment of a federal prisoner – beyond his prison sentence – if he has previously committed a violent sex crime or sexually molested a child, “suffers from a serious mental illness,” and thus is “sexually dangerous to others,” meani more [...]
Pingback by Liberty Conspiracy – 5-21-10 Sheldon Richman on SCOTUS, Comstock, Civil Rights, and Rand Paul | Homeland Stupidity on 23 May 2010:
[...] they said that the ambiguities of the Constitution would lead to expansion of power. For more, read Sheldon’s excellent article, here.Then, Gard and Sheldon investigate the recent flap over KY Republican Senate candidate Rand [...]
Comment by Lib Lover on 23 May 2010:
As per sex offenders. First of all you have obliged yourselves to believe what the “official” statistics tell you: That most sex offenders are repeaters. And don’t we all know that statistics are like… you know, everyone has one! And are based upon who does the study, who funds it and who publishes it – Mostly statist-funded universities. I’m to the point where I believe NOTHING “they” say!
If they have lawfully served their time, then they should be free to go! If they repeat and have been found guilty, then the punishment shall be much harsher. A threat is just that and is not punishable! Get that straight, all who want to intervene of a crime.
Comment by Kevin Carson on 24 May 2010:
Saul: I think the issue in this case is not one of prudence, but of whether a government action is pursuant to some legitimate grant of power. And when people can be held in prison indefinitely for any reason other than a statutorily defined sentence pursuant to a jury verdict, that’s a grave danger to all of us. I’m much more afraid of a government able to hold citizens indefinitely without due process of law than I am of murderers and child molesters running around loose, just as I’m more afraid of the Reichstag Enabling Act (excuse me, USA PATRIOT Act) than I am of the threat of people flying planes into buildings.
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