By John M. Rogitz

Following up in more detail on John Eastman’s article, the U.S. Supreme Court decided on Monday to uphold a law allowing the Federal government to civilly commit sexual predators after their criminal sentence ends.  The focus on sexual predators in our media has been extremely high, and justifiably so.

Chelsea King’s family is pushing hard for Chelsea’s Law to be enacted here in California.  It goes to an Assembly committee next week and could be passed by both houses in the near future.  Law after law is being passed to strengthen society’s defense against these monsters.  But we have to ask ourselves, how far are we really willing to go?

Please don’t mistake my question for insensitivity toward the victims of such unthinkable crimes.  If it were up to me, John Gardner would be fast-tracked to the gas chamber.

But as any good libertarian will tell you, we cannot legislate ourselves away from all of society’s ills.  Then again, any good social conservative will tell you that we have to crack down on these predators. Both are right, but there needs to be a balance somewhere between the two.  I would like to take a moment to explain the Supreme Court’s decision on Monday in U.S. v. Comstock.

Besides his work as host of the television show America’s Most Wanted, John Walsh also helped convince Congress to pass the Adam Walsh Child Protection and Safety Act.  As I said, the portion of the Walsh Act causing controversy is a section allowing the civil commitment of Federal prisoners beyond their criminal sentence if they are deemed too sexually violent to reenter society.  Moreover, they may be committed even if their original conviction had nothing to do with sexual violence.

The Walsh Act does entitle those prisoners to a hearing, but it lacks many of the constitutionally required elements of a full criminal trial.  The hearing only needs to show that the prisoner poses an ongoing threat to society using the “clear and convincing” standard, a far less stringent standard than the “reasonable doubt” standard required to impose a criminal sentence.

It’s hard to argue against Congress’ intent on this one.  We really do not want these guys roaming the streets.  Even so, our Constitution does not permit Congress to fix everything they may want to fix.  As far as criminal law goes, the Feds wield a much more limited power than the states.

The Walsh Act was passed under the Congressional authority of the “Necessary and Proper” clause of the U.S. Constitution.  That clause limits Congress to enact only “necessary and proper” laws which enforce and support the enumerated powers granted to them.

The Court’s majority held on Monday that the Walsh Act could stand even though it has no direct connection to any power granted to Congress.  Basically, the Court held that laws which may be many steps removed from an enumerated power are still constitutional as long as they are minimally connected to the power.

You can imagine how problematic this precedent may become.  Congress already thinks they can regulate everything under the sun.  Now the High Court is telling Pelosi and crew to just give the Court a reason, any reason at all, why a law is connected to an enumerated power and it has a good chance of being upheld.

Though I like to resist lengthy quotes, Justice Thomas’ dissent to the Court’s ruling is too cogent to resist. As he explains, “The Necessary and Proper Clause does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted in the exercise of its incidental authority; the Clause plainly requires a showing that every federal statute ‘carries into Execution’ one or more of the Federal Government’s enumerated powers.”

The Walsh Act thus, “permits the term of federal civil commitment to continue beyond the date on which a convicted prisoner’s sentence expires…The statute therefore authorizes federal custody over a person at a time when the Government would lack jurisdiction to detain him for violating a criminal law that executes an enumerated power…Absent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States.”

As Justice Thomas summed up, “The Court endorses the precise abuse of power Article I [of the U.S. Constitution] is designed to prevent.”  Despite the nobleness of the cause, does that sound like a path we really want our Federal government to go down?

COPYRIGHT 2010 JOHN M. ROGITZ