Sex offenders? Child pornographers? Lock 'em up and throw away the key.
Yes, I know it's my job to wring my hands here over the Supreme Court's decision last week that it is OK for the feds to keep prisoners deemed dangerous sexual predators behind bars after their sentence expires.
And I will worry, in a minute. Keeping you in jail after you've served your sentence intuitively seems unconstitutional.
But first I have to admit I have mixed feelings here. Maybe some people ought to stay locked up, like sexual predators who the experts say are particularly prone to recidivism.
But in U.S. v. Comstock, the court never reaches the substantive questions of due process and constitutional liberty that are the fundamental protection of everyone's rights: Do "commitment hearings" for such offenders violate their due-process rights under the Fifth Amendment? What about the double-jeopardy clause that forbids trying someone twice for the same offense? What about the Eighth Amendment's prohibition of cruel and unusual punishment?
Good questions, but not yet answered. In this case, anyway.
Instead the court correctly limited its decision to reversing the decision of a lower court, which had ruled section 4248 of the U.S. code exceeded constitutional federal power.
The Supreme Court's 7-2 decision last week is a broad reaffirmation of the kind of federal power, I suspect, that worries a lot of folks these days every bit as much as sexual predators.
There's no guarantee a court majority would answer the same way when it comes to health care, or bailouts, or any other federal policy some would like to see declared unconstitutional. But the majority reaffirmed standing doctrine that gives government wide latitude in executing its enumerated powers.
Justice Stephen Breyer, writing for the majority, goes back to the great chief justice, John Marshall, in holding that the Constitution isn't a code of laws, but a broad outline of government. The majority noted that nothing in the Constitution authorizes the federal government to arrest anyone, except in cases of treason, counterfeiting, piracy on the high seas and "Offenses against the Law of Nations."
Nonetheless, the court ruled, Congress has the power to regulate commerce, to create a federal judiciary and to tax and spend to "provide for the common Defence and general Welfare of the United States." And Congress also has the implied power to pass all laws reasonably related to those enumerated powers.
In Comstock, the court quotes a 1992 Sandra Day O'Connor decision, joined by all the court's conservatives, U.S. v. New York:
"The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses; first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role."
That language no doubt distresses those who complain of a "living" Constitution, one that changes to suit the fads and frustrations of the time. And I don't think the Constitution means anything you want it to mean to suit the controversies of the day.
That complaint better describes those who today insist the real Constitution is of sovereign states and eviscerated federal authority, because that certainly isn't the Constitution we've had for most of the republic.
Those views, in fact, were soundly rejected as far back as 1819, when Marshall wrote that the Constitution "requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves."
Indeed, Marshall pointed out, the framers knew a more specific Constitution could never last. It is, he said, "a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."
That, Marshall insisted, and the Comstock court reaffirmed, was the true intent of the Founding Fathers - a living Constitution, yes, that stayed true to fundamental principles but could adapt to changing times unforeseen by the framers.
Only two justices - Clarence Thomas and Antonin Scalia - dissented in Comstock. They insisted the power to incarcerate prisoners belonged to the traditional police powers of the state under the 10th Amendment. But that's the view outside the mainstream of two centuries of constitutional law.
Like the majority, the dissenters avoided the criminal justice questions raised by the case, saying only that it is up to the states, not the federal government to keep predators locked up.
But as the feds argued, these were prisoners no state wanted. The only alternative was to release them.
Pushed to their logical conclusions, the fringe doctrines of Thomas and Scalia would do more than turn loose sexual predators. They would undo two centuries of nation-building, and, in Marshall's words, "explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use."
There are indeed fundamental constitutional issues at stake in Comstock and the courts must keep a close eye on the due process and fundamental justice concerns inherent in any sort of commitment hearings on any level of government.
But all that stuff about sovereign states that may have sounded good to some anti-federalists 200 years ago is really just political distraction from the Constitution that really matters - and the sort of constitution I believe the Founding Fathers intended.
Marc Charisse is editor of The Evening Sun. E-mail: mcharisse@eveningsun.com
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