Reason for a New Age

The Reach of the Constitution

Posted by publius2point0 on 2010/05/23

The Tea Party recently declared that any bill should include a statement of what section of the Constitution gave the government the right to pass a certain law. I stated that this was meaningless as the Constitution essentially enables the government to do whatsoever it wishes, so long as it doesn’t trample any of the enumerated rights. Recently, a case came before the Supreme Court that well illustrates this point.

The case is that of the US versus Comstock, where a man convicted of the purchase of child pornography was committed to civil confinement indefinitely upon his release from prison. That is to say, after he had served his sentence for his crime, he was locked up for the rest of his life by the government, without a trial. According to the Supreme Court, this was just hunky dory.

The basis for this is the last clause of the enumerated powers of Congress in the Constitution, which more or less says, “You can also do anything else deemed worthwhile.” Also known as the “Necessary and Proper” clause. But of course, this is still limited by the Bill of Rights which requires a trial by jury and the prohibition of cruel and unusual punishments, and by the limits on the powers of Congress listed in the Constitution including the prohibition of ex post facto laws.

But the question is, is this a punishment? If Mr. Comstock isn’t being prosecuted for a crime nor punished for it, then the protections become moot.

Say for instance that Congress can look at a child and declare that based on his physical, scientifically provable state of immaturity and ignorance, that he must go to school. This isn’t a case of the government punishing the child, it’s a matter of recognizing a physical deformity and doing as society needs to minimize the impact. Or alternately, if we look at the case of someone blind, our government looks at that person and declares that he cannot legally drive on our roads based on his physical state. Again, this isn’t a punishment.

The Necessary and Proper clause essentially gives the government the right to declare anything it so wishes, so long as it is in the public interest, from deciding how you live from day to day up to commanding you to die in the name of your country. Restrictions only come into it in cases of criminal prosecution.

Mr. Comstock isn’t being prosecuted of a crime however, he’s being forcibly institutionalized for mental illness. The impressive thing isn’t so much that this is legal, but rather that there are cases where the government isn’t allowed to commit a person for mental illness. In the case of O’Connor vs. Donaldson, it was decided by the courts that an individual who poses no threat to society may not be forcibly committed, but it doesn’t particularly base that on anything except perhaps judicial review — which is itself based on the rule for due process in the Fifth Amendment, which is again only meant to apply to criminal law. They noted the the government must attempt to do something meaningful in the public interest. Since no one was being saved and the care of those being institutionalized, at that time and place, weren’t likely to do any better than those left to their own devices. Their prohibition rested on the state of care as it was at that moment, which could very well have been changed to be better, and yet the prohibition still stands regardless. I’d personally vote that this was judicial activism.

Note that I’m not encouraging or applauding this state of affairs, I’m simply pointing out the state of the law as it stands. Personally, I’d prefer a much stronger form of judicial review, enshrined in the Constitutional Amendments, if nothing else. But it is probably infeasible to ask for anything more than that in terms of guaranteeing individual rights. At best we could say that the government isn’t allowed to impinge upon the individual’s lives any more than it already is, enumerating all of the ways it does at present. But, for example, at the time when compulsory attendance in school was implemented, it was most likely viewed as an invasion into the rights of the general populace by a decent percentage of the people. There’s no knowing what future policies might be invented on the planet that appear to be benevolent and useful. Making the implementation into a constitutional battle is silly.

Ultimately, the principal protection of the people is the fact that our legislators are our representatives. Their common sense, as policed by the general populace, is intended to be and is the strongest protection against invasion into your daily life. But presuming that there’s any greater protection than that is generally going to be incorrect.


Of course, there is the Libertarian position that personal rights, possibly including things like choosing whether or not your child goes to school (or at least which school your money goes to), whether or not you should be allowed on the road, etc. should be left to the individual. But knowing that humanity is a flawed species, I don’t believe that to be very practical. You can say that a person who doesn’t plan for his future deserves what he gets, but a general, physical inability to do that is something that’s been proven about our species.

Ultimately, government is there to make the life of its citizens as good as it can be. What steps need to be taken to do that, long term and short, are whatever they are. We can’t all have what we want. We all have to take a ding so that each of us gets as close to gaining everything we want as is feasible and reasonable. But what is or isn’t feasible or reasonable is solely dependent on reasonable people working together with expert advise to create short and long term plans. It was entirely possible that socialism could have been the best thing ever to happen to humanity. If that had been the case, I wouldn’t want to be deprived of it because the people who came before its invention had decided that they knew everything there was to know in the world and were certain that there could never be a better way.

I would support an amendment which said something to the effect that, “Congress may pass no law that is capricious, which harms anything greater than sensibilities, or which seeks to legislate according to a vision of reality beyond what is scientifically demonstrable. Nor may any law stand which demonstrably works against its intended purpose or which does not or no longer produces any meaningful effect.” But other than that, I think that where our protections stand is reasonably robust.

Further Commentary

On the topic of the US vs. Comstock itself, while I agree with the Court that the law is Constitutionally acceptable, I’m not sure that I would trust that it is wise. I have heard that the prosecution of sex crimes is so difficult, since it generally rests on he-said/she-said testimony between the defendant and complainant, with no further evidence either way. In general, those who are successfully prosecuted are indicted in thanks to their having plead guilty in exchange for a promise of a light sentence rather than risking a greater sentence in a trial. With sexual offender registration and now involuntary commitment for mental disorders, it’s possible that more people will choose to go to trial and subsequently a greater number go free.

It’s also worth noting that nearly all sex crimes are committed against a family member, friend, or romantic partner. Even in cases of child molestation, most cases appear to be due to low moral standards, stress, and alcohol more than due to a fixation on children. The grand majority of “sexual predators” listed by the government are probably not a danger to anyone around them but those with whom they are close. I don’t believe that most women or single moms check the sex offender registry when they are dating a man, and family members would probably already be aware of the conviction or they would be likely to ignore the information if they even happened upon it. It’s generally people with children who check the registry, believing that it will inform them of child snatchers — which is a group that is really statistically insignificant. The registry is almost certainly failing to achieve any significant purpose.


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