He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself. --Thomas Paine (1737-1809)

The ACLU of Nevada defends the constitutional rights of everyone – and that frequently means we have very controversial clients. Of course, there’s a reason for this: when our government strains the bounds of the Constitution, it does so almost without exception against groups or individuals perceived as powerless or unpopular.

But you and I know that civil rights and liberties aren’t tied to a popularity contest. Everyone’s rights must be protected because everyone’s rights are interconnected. When we represent victims of government abuse and win, that victory is important because it establishes not just a particular individual’s right, but rather a limit on government power.

That’s why a recent U.S. Supreme Court decision is so disturbing. Last week, the Court decided that the federal government can civilly commit sex offenders after they have completed their criminal sentences. You might think: so what? But the reasoning used by the Court to arrive at this decision is worth noting, because they determined that the federal government has “broad authority” under the Constitution’s ‘Necessary and Proper’ clause.

What is that, you might ask? Historically, the power of the federal government to pass laws has been limited to the specific, enumerated powers laid out in the Constitution, and anything that’s ‘necessary and proper’ to carry them out. In this decision, though, the Court ruled that an action by the government is kosher simply as long as it is “rationally related” to the implementation of a power granted by the Constitution.

“Rationally related”? Sounds pretty vague to us—and therein lies the problem. With this decision, the Court has drastically broadened the government’s ability to pass laws on any number of issues.

The fact that the case involved sex offenders meant there was little opposition or controversy in reaction to the decision – and may, of course, have shaped the justices’ attitudes toward the case. It’s hard for many people to drum up empathy for criminal defendants in general – let alone those branded as sex offenders. But we should all have respect for the underlying constitutional rights, and an understanding of the impact that this sex offender case has on our own rights. When a Court grants the government new powers, the government can use those powers not only over those groups that are unpopular at the moment, but over all of us.

Some day this precedent will be used to approve another federal action – one that affects an issue you care about. This decision can be used to defend, say, the indefinite detention of terrorism suspects without trial, or it could be cited for the federal government’s authority to engage in civil law generally reserved to the states.

As civil libertarians, we must be willing to stand up and defend threats to our rights and freedoms, and to speak out when government oversteps its role. Unfortunately, this Supreme Court case has made that role larger, and potentially more intrusive.

 

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