Ah. Maybe you thought that the WSJ was coming out; coming out against the use of civil commitment as a back door to imprison people outside of the criminal justice process?  The issue in Comstock is whether the elastic clause provides the federal government authority to imprison people designated by the Attorney General as a danger.  The Supreme already held in Kansas v. Hendricks,1997, that taking off the “criminal” shackles and putting on the “civil” shackles changes everything, allowing a person who has completed a criminal sentence to languish in confinement.  But can the Feds do it?

What’s quite amazing is how the WSJ has adopted the cause, made the argument against civil confinement, then twisted it to serve its political agenda.  Perhaps they really aren’t deeply concerned with the wrong of civil confinement at all?  After all, as wrong as it may be for the federal government to civilly confine political prisoners, or force everyone in America to buy health insurance, would it be okey dokey if the State of Kansas did so? 

The LA Times editorial today discusses the Comstock case as well, no surprise given how much the two papers have in common.  The take, however, is somewhat different.  It began by noting its erroneous assumption that the Supreme Court’s review of civil commitment should naturally question the propriety of a law confining people after their sentences are completed.

Unfortunately, that wasn’t the case last week when the court heard arguments over the constitutionality of the indefinite detention of “sexually dangerous” prisoners. The justices’ questions mostly focused on whether Washington, as opposed to the states, has the authority to do so — not whether indefinite detention is allowable.

That issue of federalism isn’t unimportant, but the more pressing question is whether civil commitment for a mental condition is being misused to force felons to remain in prison after they’ve completed their legal sentences.

There is no doubt that the federalism question is significant, given that Congress has spent the last 25 years criminalizing everything that doesn’t move, and plenty of things that do.  And perhaps Antonin Scalia’s interpretation of “necessary and proper” will prove to be a critical limitation as states try to take back their constitutional authority to legislate crime from the encroaching federal government.  Scalia can be so Jeffersonian at times.

But it is impossible to consider the implications of Comstock without consideration of the debacle of civil confinement.  If it’s wrong for the feds to do it, per the WSJ, then how can it be acceptable for states to subvert the criminal process by mere semantic change?  Will they applaud if New Hampshire civilly commits conservatives for having a brain abnormality?  Having made the argument, a sound and compelling one at that, how can the brain trust at the Wall Street Journal not carry its argument to its logical conclusion rather than take the hard right fork in the road to bash Obamacare and ignore the very wrong the forms the basis for their complaint?

Both the WSJ and the LAT agree that civil confinement is conceptually wrong and dangerous.  The former, unfortunately, does so only to pursue an unrelated political agenda, rather than accept the obvious premise that if it’s wrong for the feds, if “loose detention laws” give improperly broad discretion to authorities to civilly imprison people they don’t like, its similarly wrong for the states.  If only the WSJ could keep its eye on the ball long enough to arrive at the right rationale for its correct position.

On the bright side, at least the Wall Street Journal has finally found a reason to fight federal civil confinement of post-sentence sex offenders, if only to leave the question open for how high the states should hang them for some other day.

H/T Howard Bashman