Mentally-Ill, Sexually-Violent Prisoners, the Constitution, and Health-Care Reform.

Do you object if mentally-ill, sexually-violent federal prisoners are confined beyond the end of their sentences? If they are kept locked up until they are well – so that they aren’t a danger when they’re released? Does anybody object to this?

Mentally-ill, sexually-violent prisoners object, and their lawyers. And they discovered that they had judicial allies: trial judges and justices of Court of Appeal. Some of these judges and justices ruled that Congress had exceeded its authority by passing the law that kept these prisoners confined.

                 1. The prisoner’s argument: the enumerated powers of Congress.

 The prisoners' argument was simple: the law was unconstitutional. Congress can’t pass laws that the Constitution doesn’t authorize. Art. I, sec. 8 of the Constitution describes the kinds of laws that Congress can pass. Think of Art. I, sec. 8 as a basket of congressional powers in the Constitution.

And none of the powers in that basket specifically authorizes Congress to pass laws to confine mentally-ill, sexually-violent prisoners. Ergo: the law crashes against the Constitution and sinks below the waves. So the argument went.


2. The Supreme Court disagrees.The Supreme Court disagreed. To reach this conclusion, the Supreme Court called upon the so-called "Necessary and Proper clause". That clause comes at the end of Art. I, sec. 8. It says:

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

                   3. The Supreme Court’s reasons.

Now, in this basket of Congressional authority, there is no authority to punish or imprison. That authority is nowhere expressed. But there is other authority. And the Supreme Court has said that the power to punish and imprison is "necessary and proper for carrying into Execution" that other authority.

In other words, the power to punish and the power to imprison is necessary and proper to carry out other authority given to Congress by the Constitution, even though the power to punish and imprison is not expressed in the Constitution.

So: Art. I, sec. 8 (the "enumerated powers" of Congress) authorizes Congress to enact laws "[t]o establish Post Offices and post Roads . . .." Because Congress has the power to establish post offices, Congress has "necessary and proper" power to pass laws to punish persons who steal mail. And because it has the power to punish persons who steal mail, Congress has "necessary and proper" power to enact laws to build prisons to house persons convicted of stealing mail.

Other examples abound. Congress can punish and imprison for civil-rights violations and voting-rights violations because of the Fourteenth and Fifteenth Amendments. It can punish and imprison for embezzlement of federal funds because of the Spending Clause. Congress can punish and imprison for perjury under its authority to create federal courts. The list goes on.

And the Supreme Court said that the power to civilly commit mentally-ill, sexually violent prisoners derives from its power to imprison, which derives from its power to punish, which derives from its power to regulate under specified authority in its basket of powers.

                    4. United States v. Comstock: the case that I’ve been talking about.

The case that discusses all of this is United States v. Comstock. It was decided in May of 2010. Five of the nine justices joined the majority opinion that upheld the civil-commitment law. Two justices concurred; that means that they agreed with the conclusion of the majority opinion, but not necessarily the reasoning. Two justices thought the decision should have gone the other way. Justice Elena Kagan did not vote in the case. That was because, as Solicitor General, she argued the case in the Supreme Court before President Obama made her a Justice.


5. Alright.I, for one, am glad that mentally-ill, sexually violent prisoners can be civilly-committed until they are well enough so that they no longer pose a danger.

I’m glad, just like I’m glad that the Veterans Health Administration provides health care to veterans. Providing health care is not among the enumerated powers. But the power to "raise and support Armies" and to "provide and maintain a Navy" are. And the Veterans Health Administration, and the health care that it provides, are "necessary and proper" to carry out those enumerated powers. (To those who interpret the Constitution in a fundamentalist fashion: note the absence of authority to create and maintain the Air Force.)


6. What this means for the Affordable Care Act.The Necessary and Proper Clause will be important when the Supreme Court takes up the Affordable Care Act ("Obamacare" to its detractors). The solid majority that upheld the highly-derivative civil-commitment statute in Comstock gives supporters of the Affordable Care Act reason to hope. That solid majority included conservative Chief Justice John Roberts. And conservative Justice Samuel Alito concurred with the majority opinion. Justice Kagan did not vote, but she certainly would support the Affordable Care Act.

United States v. Comstock suggests a broad interpretation of the Necessary and Proper Clause. That makes supporters of the Affordable Care Act optimistic because persons who look to the courts to undermine the law argue that Congress exceeded it's authority in passing it. A broad interpretation of the Necessary and Proper Clause could only make it easier for the Supreme Court to rule that Congress had the right to pass health-care reform.

That might mean that, after the Supreme Court rules on the Affordable Care Act, parents can get health insurance for their children who are born with birth defects; sick people won’t die because they’re too old to stay on their parent’s health-insurance policy; and insurance companies can’t drop you because you get sick.

Here's a link to the opinion in United States v. Comstock:
http://www.supremecourt.gov/opinions/09pdf/08-1224.pdf

In Defense of Outrage: Westboro Baptist Church

Westboro Baptist Church pickets funerals of fallen American soldiers. They proclaim that soldiers’ deaths are God’s revenge for America’s toleration of homosexuality. They celebrate these deaths as a triumph of the Lord.

On Westboro Baptist Church’s website, I listened to an hour-long sermon by its pastor, Rev. Fred Phelps. He holds himself out as prophetic in the mold of Jeremiah.

He is wrong. For reasons I might go into in a later post, it is clear that Rev. Phelps is self-deceived.

But though he is no prophet, he is like a prophet; he does prophetic things.

To explain: a prophet is not like smooth jazz. He does not calm jangled nerves. He does not sooth agitated spirits. He does not assuage raging souls. He jangles, agitates, and rages against injustice, iniquity, and impiety. He puts the fright on people who have turned their backs on God.

I am rereading the Book of Jeremiah. Here’s a little history. Abraham’s descendants divided into two kingdoms: Israel and Judah. Both sinned against God. God caused Israel to be conquered and its people to be sent into exile. Judah lasted longer than Israel, but it suffered the same fate. After 70 years, God gathered many of his exiled people to resurrect their kingdom.

But before they were exiled, and before they were re-gathered, they were conquered. When the king of Babylon laid siege to Jerusalem, King Zedekiah sent an emissary to Jeremiah to ask if God would intervene with a miracle to save the king and the city. Jeremiah said this:

I will take Zedekiah king of Judah, his courtiers and the people, all in this city who survive pestilence, sword, and famine, and hand them over to Nebuchadrezzar the king of Babylon, to their enemies and those who would kill them. He shall put them to the sword and shall show no pity, no mercy or compassion. (Jer. 21:7(NEB).)

God spoke to Jeremiah and instructed him:

I will compel men to eat the flesh of their sons and their daughters; they shall devour one another’s flesh in the dire straits to which their enemies and those who would kill them will reduce them in the siege. Then you must shatter the jar before the eyes of the men who have come with you and say to them, These are the words of the LORD of Hosts: Thus will I shatter this people and this city as one shatters an earthen vessel so that it cannot be mended, and they shall be buried in Topheth because there is no room elsewhere to bury them. (Jer. 19:9-11 (NEB).)

A career of saying uncomfortable things like this made Jeremiah unpopular and the object of conspiracies.

That was Jeremiah. Let me be clear: when Pastor Phelps’s lips move, I don’t hear God speaking. But make no mistake: prophets outrage. "The prophet is an iconoclast, challenging the apparently holy, revered, and awesome. Beliefs cherished as certainties, institutions endowed with supreme sanctity, he exposes as scandalous pretensions." (Abraham J. Heschel, The Prophets (Perennial Classics).)

Certainly, fallen soldiers and their families are close to our hearts. A piece of us is buried with the soldiers; a part of us stands with their families and friends grieving beside the graves. I won’t say that a true prophet would choose Westboro Baptist Church’s scourge to lash America. But he or she might expose another cherished institution and would similarly provoke outrage.

So we must not get carried away with our outrage against Rev. Phelps and his congregation. Outrageous as they are, they might be prophets. And even if they are not, as is more than likely, our action toward them would set a precedent for disposing of real prophets, should real prophets arise among us.

The genius of our Constitution is that it shelters the genuine and the fake, the prophet and the fraud, the insightful and the foolish. It shelters the fake, the fraud, and the foolish to protect the genuine, the prophetic and the insightful. For a long time, judges have not trusted judges to determine what speech nourishes and what speech taints. They have followed Justice Oliver Wendell Holmes, Jr.’s admonition that "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market."

I agree with Holmes. I think most people do.

So in the court case now pending, I hope the Supreme Court does the right thing and extends a Constitutional safety ladder to this troublesome congregation and its leader.  It matters to me, by the way, that Westboro Baptist Church's protest in this case was out of sight and out of earshot of the funeral.

For brevity, what I have written simplifies Constitutional law, and it simplifies the prophetic mission. In addition to discomfiting, prophets instruct and offer hope. I am practiced in the law, but I am re-limbering my theological muscles after a long hiatus. But I think I mostly got it right.


Note:

I have provided in the text a link to Amazon.com for Heschel's book The Prophets.  I did this for your convenience.  If you want to buy the book, great.  But it really doesn't matter to me where you get it.