Opinion flawed in Comstock

There is a fundamental flaw in the U.S. v. Comstock opinion. While Congress arguably has authority to conduct competency hearings and detain those found dangerous, on territory over which it has exclusive legislative jurisdiction, there is a jurisdictional problem with acquiring jurisdiction over the prisoner by conducting such a hearing while the subject is still in prison custody for a federal crime, the constitutionality of which is itself in doubt. If the prisoner was taken from state territory into federal custody, he should be returned to state custody before any competency hearing is held, and the determination made by a state court. Only if the prisoner was originally taken from exclusive federal territory would the federal courts have jurisdiction.

But it appears these arguments were not made in this case. GIGO.

This controversy stems from one bad precedent: McCulloch, and what was essentially dictum on the Necessary and Proper Clause. See Unnecessary and Improper.

What is missing from this discussion is close examination of the key phrase in the N&P Clause, “carrying into Execution” the delegated powers. Too many people today take that to mean to get the result that the execution seeks, but a closer reading shows that is not the correct interpretation of the original meaning. The “end” of a delegated power, as discussed by Madison above, is not the intended outcome of Congress in invoking the power. “Carrying into execution” is only making an effort, not getting a result.

Delegated powers are to make certain kinds of efforts. If those efforts are not efficacious to getting a desired result, then the meaning of the N&P Clause is not that additional efforts may be made until the result is achieved. It means only doing things that enable the making of the basic effort authorized by the express delegation. No more.

Moreover, “necessary” and “proper” are two constraints. It is not enough that an enabling effort be necessary. It must also be consistent with the legitimate public purposes of such powers. Delegations are not plenary. All delegations are implicitly constrained to be proper, to be rational and just ways of seeking the purposes expressed in the Preamble.

Amend Federal Rules of Evidence

The House of Representatives, Committee on the Judiciary has posted  a version with the December 2010 amendments: http://judiciary.house.gov/hearings/printers/111th/evid2010.pdf

The Rules need to be amended as follows:

Rule 401. Definition of ‘‘Relevant Evidence’’,  to read as follows:

 ‘‘Relevant evidence’’ means (1) evidence having any tendency to
make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it
would be without the evidence; or (2) evidence of what is or is not
the law applicable to the case, including the text of constitutional
provisions, statutes, or court precedents; or (3) evidence of official
misconduct that might adversely affect the rights of any parties to
the case.


Rule 1003. Admissibility of Duplicates, to read as follows:

  A duplicate is admissible to the same extent as an original un-
less (1) a genuine question is raised as to the authenticity of the
original; or (2) in the circumstances it would be unfair to admit
the duplicate in lieu of the original; or (3) it is a debt instrument
for which each originally signed document is a separate obligation.



Write your members of Congress asking them to amend the Rules as shown above.

Original meaning not in much original practice

Persons who seek original meaning of laws such as the Constitution often confuse themselves by conflating original meaning of the language they chose with contemporary practices of the era. They are not the same. The meanings of the words could be, and often were, in substantial contradiction with prevailing practices of the time. The practices sometimes provide insight into the meaning only by providing contrast. It is a mistake to claim the Founders disagreed more about meaning or understanding than they did, based on inconsistencies between their words and their practices.

I consider such cases as Barron v. Baltimore and Dred Scott v. Sanford to have been wrongly decided, based on the original meaning of the words actually chosen in writing the Constitution. Not on the practices that prevailed at ratification, and which were temporized by avoiding confrontation with the words of the Constitution. Founding era practices are not dispositive of meaning or understanding. Sometimes they are indicative, sometimes not. They do indicate that the Framers sometimes adopted language that aspired to a better future when reality could be brought into compliance with their words. Barron and Dred Scott happened because the contradiction could no longer be sustained or avoided, so the Court copped out and went with original practice instead of actual language. It took a civil war and three amendments to fix those wrong decisions.

Consider a statute, such as the Health Care Act. When it is passed, does it merely describe what people are already doing? Of course not. There would be little need for a statute that changed nothing. Laws, including constitutions, are enacted to change what people do.

So what happens when it is enacted? Does everybody, citizens and officials alike, instantly snap to perfect compliance? Of course not. Probably very few of them do for a while. Maybe more and more as time unfolds. Maybe not, if there is resistance, or misunderstanding, or a lack of a budget for enforcement.

So what can we conclude if we look at what people are actually doing a few years, or perhaps a few decades, after the enactment, and compliance is far from perfect? In particular, what can we conclude about the meaning of the law? Not that it meant only what people were doing at enactment. Not that it meant what people were doing years later. So what if anything can be extracted from practice to reveal what the enactment meant?

The answer is that the enactors probably had in mind some ideal of practice that was rarely if every perfectly realized, although it might be closely approached in a few cases. They might hold up those cases as exemplars, and as such, indications of what was meant. But general practice was probably not what was meant.

In this sense, constitutions are just another kind of enactment. Aspirational, in large measure. For original meaning, one has to look to ideal descriptions, or exemplary cases, not to prevailing practice.

Now it may be argued that while that is certainly true in terms of popular acceptance, it is not true in terms of legal acceptance.

The answer is that of course it is. Officials are people, too, and even today they don't snap to compliance with new statutes or court rulings, either because they don't know, don't care, don't understand, don't expect to be caught, or are reliance interests that will cling to the previous regime until they are dragged into compliance. Compliance was even slower in earlier times, and often never occurred at all. In some alternate timeline law may be some kind of magic. It's not in this timeline.