Legal Commentary

The SCOTUS's holdings in Comstock and Graham together illustrate my F.U.S.S. theory of federalism -- that is, my theory about the inevitable Failure of Unitary Societies and States. This theory consists of four hypotheses -- viz.:

(1) Deferential judicial review of the national legislature's implied powers allows the national legislature win cheap and short-term political applause with unnecessary and oppressive national regulatory regimes -- say, federal civil commitment for sexually dangerous ex-convicts;

(2) The Court?s efforts to enforce centralized theories of rights to temper such laws inevitably founder on the cultural divisions within a large, heterogeneous, and politically polarized nation. The combination of these two hypotheses suggests two further predictions: viz.?

(3) Fearful of inspiring a backlash from a polarized nation (see, e.g., Furman v. Georgia), the SCOTUS enforces national rights with a judicially crafted theory of ?rights federalism? in which they attempt to count states? laws to determine whether some particular state?s especially outrageous invasion of liberty violates some alleged national legislative consensus among the balance of the states; and?

(4) Gridlock in a polarized national legislature and spinelessness at SCOTUS (see hypo #2) will insure that federal laws gratuitously upheld by the SCOTUS in the face of overwhelming evidence that such laws are utterly unnecessary (see hypo #1) will nevertheless tend to be immortal, lingering on to oppress us long after the initial political calculation that spawned them has died away.

After the jump, I?ll explain why I think that Comstock and Graham illustrate Hypotheses ##1-3. As for hypo #4 ? only time will tell, but the Mann Act suggests that we?ll be living with federal prison wardens' deciding who is "sexually dangerous" for a long, long time.

Consider, first, my first hypothesis -- that the SCOTUS's deferential review leads the Court to uphold federal laws that by no stretch of the imagination serve any minimally plausible necessary function. Could any decision illustrate this proposition better than Comstock? To believe that federal civil commitment for sexual predators is necessary, you would have to believe that state governors and legislatures have insufficient political incentives to lock up federal ex-cons whom the feds deem to be sexually dangerous. To endorse such a proposition, you would have to be utterly innocent of ever opening a magazine or reading a newspaper: Our nation is ridden with state civil confinement laws and neighborhood exclusions of sexual offenders -- so much so that state correctional administrators are worried about creating ghettos of sexual offenders.

For Justice Breyer solemnly to intone that "a reasonable number of [sexually dangerous persons] would likely not be detained by the States if released from federal custody" (page 15) citing congressional committee reports as evidence of this extraordinary proposition, is a tribute to the justices' capacity to keep a straight face when engaging in legal fiction. Does any reader seriously believe that, upon receiving a 'phone call from a federal warden explaining that a "sexually dangerous" ex-con was about to be released from a federal prison into their jurisdiction, the governor or mayor of that jurisdiction would not jump to confine such a person as tightly as the 14th Amendment would permit? The federal civil commitment law is not coals to Newcastle: It is gasoline for the towering inferno of our national moral panic about sexual offenders. Congress was blatantly pandering to a national paranoia about sex offenders, not addressing any real, felt need for yet more laws on this over-legislated subject.

Consider, second, how Graham illustrates my Hypos ## 2-3. In any sane system of judicial enforcement of proportionality, there would be some discussion from the Court of some coherent penological theory in which the Court analyzed the consensus of corrections officers, the findings of social scientists, the data on recidivism and youthful offenders, the discount rate of kids, even polling data or data on jury sentencing practices. Instead, the Court focuses on the alleged consensus of the state legislatures as reflected in a hodge-podge of unrelated state laws enacted for purposes utterly unrelated to the goal of defining any national constitutional norm. As I have argued elsewhere, this sort of judicial behavior can best be explained as the Court's protecting itself from the accusation that it has violated the law of public opinion. In effect, the state legislatures are dragooned into the job of acting as the pollsters for the Court, so that the Court does not commit another Furman v Georgia debacle.

The problem with such a theory of rights, of course, is that it gives state prosecutors and politicians a healthy incentive to maintain absurdly stringent state-law penalties codes to prevent any creation of an ersatz "national consensus" against strict punishment. After all, under the SCOTUS's weird Eighth Amendment doctrine, every state legislature is, in effect, a continuing constitutional convention on the Eighth Amendment. The stakes of reforming state penal law, therefore, are radically increased by the SCOTUS, stymieing the very political impulses that could lead to a change in the consensus that the Court purports to detect.

Here is my prediction concerning our over-centralized system of laws and our under-centralized system of rights. The laws that the Court upholds will linger on forever, simply because a gridlocked Congress cannot get rid of them: Who wants to be the congressperson, after all, who sponsors the "Fairness to Sex Offenders Act"? The best example of this dynamic is the Mann Act: enacted in 1910 to address "white slavery" (i.e., prostitution), it banned the interstate transport of any woman or girl for "prostitution, debauchery, or any other immoral purpose." The law was quickly construed by U.S. Attorneys to apply to any non-marital sex deemed by the prosecutor to be "immoral": It became a byword for abusive federal prosecution, deployed by white supremacists against the boxer, Jack Johnson, and by the anti-communist J. Edgar Hoover against Charlie Chaplin. The law hardily survived the sexual revolution, being amended out of existence only in 1986 when cautious congresspersons replaced its vague reference to "immoral purposes" with a specific reference to "any sexual activity for which any person can be charged with a criminal offense." In effect, the statute abandoned the effort to enforce federal prosecutors' moral code, instead incorporating mostly state criminal law by reference.

Will we have to wait 76 years to rid ourselves of federal prison wardens' notions of "sexual dangerousness"? I suspect so. Would it really be too much to ask that the Court spare us these congressional excesses by making some sort of minimal judicial inquiry into the real necessity of a challenged federal law? Apparently, Comstock suggests that the Court will not undertake such a task. In the mean time, on issues where some serious national judicial oversight is needed -- setting morally and penologically sensible limits on sentences, the Court is busy counting states.

In short, we get nationalized policy where we do not need it and incoherent judicial efforts to defer to states (the "consensus" of states, whatever that means) where we need more nationalism. That is why I continue to make a F.U.S.S. about federalism.