What am I missing?

If you read this blog for more than one day, you'll get that I'm a no nonsense law and order type conservative.

But I also get that you can't have order without law and today's Supreme Court ruling that a government can hold an inmate for longer than their sentence strikes me as seriously unamerican and not constitutional.

In another highly anticipated case, United States v. Comstock, the court ruled 7-2 (Thomas and Scalia dissented) that the federal government can institute a preventative detention regime to hold those found to be sexually dangerous past their scheduled release date.

The decision appears to turn on the meaning of our old friend 'the necessary and proper' clause.

Not surprisingly Justice Breyer, writing for the majority, argues for an ad hoc and expansive grant of federal power.

We take these five considerations together. They include: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in lightof the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope. Taken together, these considera-tions lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority thatpermits Congress to create federal criminal laws, to pun-ish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the securityof those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.

Justice Thomas argues in his dissent (which Scalia joins for the most part) that the Constitution does not authorize any such laws (pdf).

This decision reminds me of the Kelo ruling. I was dating a fashionably liberal woman who assumed it was the conservatives on the court protecting the big business. When I informed her that it was the libs on the court who ruled against Kelo she had this look of bewilderment.

This decision is no different. Apparently, it's the liberals who believe in the power of government to hold you for whatever period of time they damn well feel like. At least Thomas and Scalia held true to the Constitution.

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