May 17, 2010

Posted in Uncategorized

Underpants Gnomes, Necessary & Proper Clause, and Comstock

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Whenever the Supreme Court uses a Necessary and Proper clause argument, I would feel remiss if I didn’t discuss the underpants gnomes.

For an introduction to the underpants gnomes, I refer you to the inestimable Carl Edman, who cited this South park classic in a FERC brief.

The industrious underpants-stealing gnomes were introduced to the world by the television program “South Park.” Famously, their business plan consists, in its entirety, of three stages: “Phase 1: Collect Underpants. Phase 2: ? Phase 3: Profit.” Wikipedia, Gnomes (South Park), http://en.wikipedia.org/wiki/Gnomes_(South_Park) (last modified Jan. 2, 2010). The gnomes’ business plan have since become a byword for theories with large logical gaps of which their expositors appear to be blissfully unaware.

From Justice Breyer’s opinion.

Taken together, these considerations lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others.

So I think the argument would go something like this:

Phase 1 – Necessary and Proper Clause

Phase 2 – ?

Phase 3- Indefinite Civil Commitment

Makes sense to me.

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