Another post courtesy of law professor Jack Balkin
Professor Balkin teaches constitutional law at Yale. As some of you know, I read and I refer to Professor Balkin and the other law professors who write on the blog Balkinization quite often.
Because the words “overstepped their bounds,” and “enumerated powers,” and “Tenth Amendment” are still ringing in my ears from the Tea Party rally at the Capitol on April 15th (check out the videos in the sidebar for a flavor of the event), I thought a post from the professor yesterday would be a good subject to discuss.
One animated fellow in the Tea Party veers into the rhubarb video thinks because “health care” is not mentioned “in there” (the Constitution), sort of like assessing the quality of a jar of Prego®, that it is clearly unconstitutional for Congress to do it.
Such is the intellectual thrust of the Tea Party.
Why then, too, an asylum for sexual predators who have completed their federal sentences must also be unconstitutional, right?
You will search high and low in the Constitution for any reference to sexual predators. Go ahead; try it. Get the a copy text of the Constitution in your browser, and search for “sexual predator.”
You couldn’t even find “sex,” could you? Not until you got to the Nineteenth Amendment, anyway.
Don’t feel bad; neither could the Supreme Court, but that didn’t stop it from deciding 7 – 2 (guess who the dissenters were) that the Congress could establish such an institution for sexually dangerous persons (that one’s not in there either) who had completed their federal sentence but who were still deemed, well, dangerous.
Professor Balkin thinks the case is neat (my term, but he does) because he’ll be able to use it in his introductory Con. Law. class to teach about federal implied powers and the Necessary and Proper Clause.
In the Comstock case, the Court reasoned that the establishment of a facility or institution (nope; not there) to hold sexually dangerous persons was “necessary and proper” as an adjunct to the effective operation of a federal criminal justice system.
You know, this is fun: look for “prison.”
Professor Balkin goes on to say that the case doesn’t really mean much for the health care debate because that one is such a slam dunk anyway:
So the bottom line is that Comstock is an interesting opinion for constitutional law professors, but does not really change the law that will apply to the health care bill. Indeed, since the health care bill is constitutional if it is either within the Commerce Power or the power to tax and spend for the general welfare, its constitutionality remains a very easy case under current law.