Doug Berman at Sentencing Law & Policy posts about a provocative piece by David Rittger at Cato@Liberty.  No doubt we are all familiar with Pastor Martin Niemölle’s speech:

“THEY CAME FIRST for the Communists,
and I didn’t speak up because I wasn’t a Communist.

THEN THEY CAME for the Jews,
and I didn’t speak up because I wasn’t a Jew.

THEN THEY CAME for the trade unionists,
and I didn’t speak up because I wasn’t a trade unionist.

THEN THEY CAME for me
and by that time no one was left to speak up.”

Rittger plays off this theme in First, They came for the Sex Offenders.

First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress. The Supreme Court decided otherwise in Comstock, with the exception of Justices Thomas and Scalia.

Next, they will come for suspected terrorists. As Dahlia Lithwick (who I rarely agree with – here is her commentary on the Heller case) points out, the Supreme Court’s decision in Comstock may have some frightening implications for domestic preventive detention of terrorism suspects in lieu of criminal prosecution.

Sure, there is the politicalization of the problem, which I find disingenuous (though isn’t that the nature of politicalization?), but the critical point is an issue that defies labels or finger pointing.  Today’s flavor is sex offenders.  I tend to believe the terrorists are already on the menu as well, though perhaps less obviously.  Neither has a decent lobbying effort or produces empathetic television commercials.  They don’t contribute adequately to political campaigns.

We have been force-fed the belief that these discrete groups are so evil, so wantonly horrible, that they are undeserving of what are described as the “legal niceties” of the Constitution.  We hate them so that reason is overcome by our visceral reactions, images of dead bodies and stories of horrible, disgusting tragedies.  We are hard-pressed to explain why people who have so badly broken the social contract deserve any sympathy or consideration.  There are truly evil people in the world.

Once we break through the wall once, however, it becomes increasingly easy to do so again.  Evil isn’t limited to sex offenders. Or terrorists.  Or drunk drivers. Or gangbangers. Or drug dealers.  Or jaywalkers.  People like me, who speak up for people I despise, are dismissed as clueless.  We can’t appreciate what it means to lose a child.  How would we feel if our daughter was brutally raped and murdered? 

The answer is simple, that I would want to kill the person who touched my child, rip him limb from limb, induce excruciating pain and stare into his eyes until the life flowed out.  I’m no less feeling than anyone else, and all my visceral reactions are intact.  But in the quiet moments when I’m not filled with anger and hatred about the evil that exists in the world, I’m capable of reflecting on why visceral reactions don’t make for sound public policy. 

A commenter yesterday informed me that most of America disagreed with my position.  He’s correct. I am in the minority, more often than I care to be.  But it doesn’t convince me to ignore reason and hop aboard the bandwagon.  It’s often difficult to ignore an easy, seductive path that appears to offer solutions to vexing problems.  It’s difficult to think of how our future plays out if we put aside sound judgment just this one time.  And it would certainly be nice to feel the loving embrace of the majority, slapping me on the back for having forsaken my errant ways and locked arms in the march of the majority.

But I can’t be a tyrant, even if it’s easier and will bring me popularity and appreciation.  You can bet your bottom dollar that I don’t want to be the hero of sex offenders or terrorists, but breaching the wall that separates them from the fundamental rights that accrue to all, even just this one time, cannot be tolerated.  It’s not that we should do it so much for their sake, but because when our turn comes, as I believe it eventually must, there will be no one left to speak for us.