In upholding that policy on Monday, the Supreme Court not only blessed yet another use of psychiatry to escape the safeguards of our criminal justice system by disguising punishment as treatment — it also encouraged Congress to pile one dubious assertion of power on top of another until the tottering tower is tall enough to surmount the fence erected by the Constitution…
Even if we assume the validity of such laws, Justice Clarence Thomas notes in a dissent joined by Justice Antonin Scalia, civil commitment does not carry them into execution, as required by the Necessary and Proper Clause. The criminal statute has been fully executed at the point where someone convicted of violating it completes the sentence it prescribes, which is precisely when civil commitment takes effect.
