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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, May 17, 2010 ::
    So let's see: state courts can't lock up juvenile armed robbers for life, b/c SCOTUS imagines the 8th Am says they can't; yet Congress can lock up "dangerous" people civilly (i.e. w/o criminal justice protections for the accused), b/c SCOTUS imagines Art. I says it can.

    Nice day's work.

    While all the media attention today and tomorrow will probably be given over to the Court's amazing power-grab in Graham v. Florida ("death is different" no longer: now life imprisonment is different too, and the Court's power to use the Eighth Amendment to enact its moral hunches about proportionate punishment into law is unrestricted), I'd say the real news is U.S. v. Comstock, in which the Court construes the Necessary and Proper Clause as allowing federal civil commitment of a "mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released."

    (I express no opinion here on the propriety of life sentences w/o parole for juvenile armed robbers, only on whether the 8th Amendment authorizes the Supreme Court to rewrite penal codes from time to time to conform to its own sense of "evolving" moral norms. It obviously authorizes no such democracy-subverting notion.)

    It's Big Dissent Day for Justice Thomas. Besides taking down the Court's philosopher-kingship in Graham, he took on the task as well of pointing out the gap between the classic McCulloch-v.-Md.-type construction of the N&P Clause and the expansion of that clause carried out today. Justice Alito concurred separately with the majority, but even in so doing, expressed concern about the breadth of its holding and agreement with the dissent's concerns.

    Alarmingly, Chief Justice Roberts formed part of Justice Breyer's big-government majority in Comstock. So of course did Justices Sotomayor and Stevens, and there's every reason to think Kagan would have as well.

    Meanwhile everyone's in a dither over what Lady Kaga thinks, or whether she, you know, is or isn't. Replacing Stevens, she'll press the reset button (from age 90 to age 50) on a SCOTUS seat that's been shredding the Constitution for years. By all means, "constitutionalist" Senators, vote against her, and (in case you defeat her) against the dozen or so identical nominees this administration will send up in its remaining two years until that seat is filled.

    Then maybe we can get us a nice Republican president who will send up nominees like Roberts and Alito who -- oh, right....

    :: David M. Wagner 1:05 PM [+] ::

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