In a series of articles between now and the upcoming start of the Supreme Court’s 2009-2010 Term (First Monday in October for those of you who slept through Civics class), I will be discussing some of the issues that will come before the Court in the term ahead and talk about the possible implications of those decisions and, as usual, present my own opinions on the case and the legal issues presented.

Image Credit: Matteo Parrini

Our case today is US v. Comstock:

The law being challenged in US v. Comstock is The Adam Walsh Child Safety and Protection Act. One part of this law, §4248, gives Federal prosecutors the right to keep prisoners in civil committment if the Attorney General files a form with the courts saying that the prisoner is a “sexually dangerous person”.

Graydon Comstock is a convicted recipient of child pornography.  He was sentenced to three years in prison for his offense.  However, when he was about to be released, the Attorney General certified to the courts that Comstock was a “sexually dangerous person” and needed to be indefinitely committed.  When a hearing was held to confirm that certification, Comstock’s attorney argued that that the law was unconstitutional because no part of the constitution authorizes anything like what the Attorney General was trying to do.

The issue the Supreme Court will take up is one of Federalism.  Specifically, the court is going to look at whether Congress went beyond the scope of its authority under the Constitution to make law when it made this law.

Most of us are used to the idea that a good idea for a law can just be made law without too much of a fuss. And for states, this is generally the case.  States have these sorts of open-ended civil commitment for sexually dangerous persons and no one blinks an eye.  In fact, the Supreme Court gave its blessing to these sorts of commitments in Kansas v. Hendricks.

But the Federal government doesn’t have a “general” police power.  Its police powers are limited by restrictions put on it by the Constitution.  In the early 90s, then Senator and current Vice President Joe Biden wrote a law called the Violence Against Women Act, part of which gave women a civil cause of action in Federal courts for simple sexual assault.  In US v. Morrison, the Court struck down the law, saying that regardless of how good an idea it was, the Constitutional authority to create such a law simply wasn’t there.

Many people at the time thought that Morrison and a similar case called US v. Lopez were heralding a revolution in Federalism, and that the Supreme Court was going to tightly clamp down on statutes where Constitutional authority for Congress to pass them was questionable.  For most of us, those visions of a Federalism Revolution died after Gonzales v. Raich was decided, and Justice Scalia began singing the praises of open-ended authority under the Commerce Clause for Congress to do whatever it wanted.

Even with the hopes of a Federalism Revolution dashed, the similarities between Morrison and Comstock are too juicy to pass up.  Both cases involve a federal, non-criminal action for a sexual offense.  Both cases involve an area that, historically, was handled in state courts.  And furthermore, there’s a split in the circuits as to this point.  The 8th Circuit has held the statute to be constitutional.

Of the Supreme Court justices who voted for US v. Morrison, only Justices Scalia, Thomas, and Kennedy are still on the bench.  Justice Scalia has, as I mentioned above, seemingly backed away from his Commerce Clause position since Raich.  Needless to say, Comstock’s lawyer has his work cut out for him.  But if he succeeds, he could reinvigorate the Commerce Clause Revolution in a way that the Raich case was unable to do.

As a matter of policy, this is probably treading a very fine line.  When it comes to sex and violence, legislators and courts can get surprisingly stupid.  In the 1970s, Massachusetts, that bastion of liberalism, barred consent as a defense to charges of sexual battery.  The practical upshot of this ruling is if you want your lover to hit you with a riding crop, don’t vacation in Massachusetts.  The fact that you asked him to won’t stop criminal charges from coming down.  As already mentioned, the Violence Against Women Act turned out to be overreaching.   Recent attempts to craft a rape-by-fraud statute resulted in such a poorly drafted bill that it would have outlawed adultery if it had passed.

While institutionalizing a person with an uncontrollable compulsion to harm people is certainly not a bad aim,  and isn’t inherently a violation of a person’s civil rights, we probably should ask ourselves why the federal government needs a separate civil commitment law.  State civil commitment laws should be more than sufficient to handle these matters without the need to make a Federal case out of it.  Concerns about limited government in a time where people seem to be very selectively choosing what parts of government they want limited don’t provide a clear political landscape to predict the case’s outcome on.  But it will certainly be an interesting debate to listen to.