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June 5th, 2010

Is the Constitution a Paper Tiger?

Written by Nathan Tucker

Recently, the U.S. Supreme Court ruled in U.S. v. Comstock (2010) that the federal government can civilly commit, indefinitely, those deemed “sexually dangerous” when their federal prison sentences are complete. Not surprisingly, those facing such civil commitments claimed that the statute overstepped Congress’ constitutional authority.

Contrary to the belief of many members of Congress of both parties, the Constitution does impose limits on what they can and cannot do. They have very specific enumerated powers under the Constitution, and those not granted to the federal government are, as the Tenth Amendment exhorts, “reserved to the States respectively, or to the people.”

The powers given to the Congress are not only specific, but also quite limited—the ability to borrow money, establish currency and punish counterfeiting, provide for patents and copyrights, declare war, organize the militias, etc. In fact, the Framers were initially of the opinion that a Bill of Rights was unnecessary because they believed Congress did not have the power to reach those rights.

This is the meaning of federalism—the simple and fundamental proposition that the federal government has only a few, specific powers and cannot exercise any that are not “necessary and proper” to those enumerated powers. Though it may be unpopular to habitually tell the federal government “NO,” especially when the laws are desirable, the Constitution itself is a document of “NOs,” commanding the federal government that it may go this far but no further.

The first question every congressmen, president, and judge must ask of a piece of legislation is not whether it is popular or whether it is the right thing to do, but whether the Constitution allows it. If it is not an exercise of one of the specific, enumerated powers found in the Constitution, they must next ask if it is “necessary and proper” to the execution of one of those powers.

In this case, the answer to the first question is simple—civilly committing dangerous individuals is not an enumerated power found in the Constitution. In fact, no where does the Constitution give Congress the power to enact a general criminal code or provide for civil commitments of dangerous or mentally ill individuals.

The second question, then, is whether the legislation is a means of executing one of Congress’ enumerated powers. For instance, Congress can define crimes that interfere with its constitutionally-delegated power of regulating the post office. Or it can define crimes that interfere with its enumerated power to grant patents and copyrights, or its power to tax, or its power to raise and support armies.

But there aren’t any enumerated powers that civil commitments are meant to help execute. Not even Solicitor General Elena Kagan, now nominated by President Obama to the Supreme Court, was able at oral arguments to identify any conceivable enumerated power that this piece of legislation was intended to help implement.

Rather, General Kagan argued, and the Court bought, the theory that Congress has the power to enact the statute because it was, in their opinion, rationally related to another law which did implement an enumerated power. In other words, because Congress had the power to imprison these individuals for an offense under one of its enumerated powers, the Court also held it had the power to determine which were too dangerous to release back into the public.

But the Constitution’s requirement that federal laws be “necessary and proper” does not allow Congress to pass legislation that furthers other federal laws. Rather, the proper question is whether the challenged law itself is enacted to further an enumerated power. For instance, laws defining federal offenses, determining the punishment, and regulating the confinement of prisoners are all means of carrying out a specifically granted power.

As an example, because Congress has the power to establish post offices, it can pass a law criminalizing the theft of mail. Because Congress has the power to establish post offices, it can make the theft of mail punishable by five years in prison. Because Congress has the power to establish post offices, it can make theft of mail punishable by five years in prison at a minimum-security prison.

But civilly confining “sexually dangerous” predators is not a means of executing an enumerated power, but a means of protecting the general public from degenerates. Congress cannot say, “Because we have such and such enumerated power, we can throw away the keys on sexually dangerous people.” There is no “such and such” power enumerated in the Constitution to give them that authority, no matter how laudable it may be to protect society from sexual deviants.

To be constitutional, a federal law must be a means of executing a constitutionally enumerated power rather than simply having a casual link to another federal law. Otherwise, by a series of stepping stones in which laws are passed because they have some relationship with other federal laws, the Constitution becomes a grant of general authority rather than limited power.

Ruefully, the majority of the Court in failed to enforce these constitutional roadblocks on Congress’ power, leaving that body free to legislate as it pleases and turning the doctrine of enumerated powers into a paper tiger.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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