A Constitutional Question

Which enumerated power of Congress allows the federal government to prosecute a Texas state court judge accused of beating his daughter with a belt?

[poll id="1"]

Bonus question:  Does Article II, Section 4 apply to the United States attorney investigating this case?  If so, please give your answer in the form of an essay, in comments.

Update: see comments.

Last 5 posts by Patrick Non-White


  1. says

    FWIW, the story has said all day that the Feds were looking into it.

    NPR, the source for the story, published an edit in the past ten minutes.

  2. says

    That the United States Attorney even consulted with the local yokels is disgraceful. That the local yokels thought the federal government might have grounds to prosecute is disgraceful.

    We're policed by goons whose only excuse is their ignorance of the law.

  3. Artemis says

    This is one of the few problems I have with digital media. The ability to fundamentally change a "published story" without ever acknowledging that the change happened.

  4. says

    A better pretext for fed investigation (which, by itself, is enough to derail most careers) would be kiddie pr0n–looking for other vids of kids and leather etc.

  5. says


    I actually wonder if the daughter's derrière might be engaged in interstate commerce.

    (Too soon? Too soon?)

  6. VPJ says

    In other, completely unrelated, news, the TSA determines that leather belts are dangerous weapons and all airline passengers will be subject to a full cavity search to ensure such dangerous weapons do not make it onto commercial air transport.

  7. Brooks says

    No, Art. II Sec. 4 does not apply because the U.S. Attorney's improper investigation, while abusing the public trust and bringing disrepute to his office by wasting public resources, does not rise to the level of a high crime or misdemeanor.

    If the question simply whether a U.S. Attorney falls within the ambit of Art. 2 Sec. 4, then yes, of course. U.S. Attorneys are appointed pursuant to Art. 2 Sec. 2, and are "civil officers" for purposes of Art. 2 Sec. 4.

  8. Evan says

    I entirely recognize your point, and IANAL, but you've left out a couple powers… for example, at the end of the Fourteenth Amendment, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Perhaps someone could term the judge's beating a state action, making this fall afoul of the Equal Protection or Due Process clause of the Fourteenth Amendment?

    It would set two horrid precedents, at least. See, "We have a government of laws, not of men."

  9. Amiable Dorsai says

    The belt was not approved by the FDA as a treatment for cerebral palsy (which the daughter apparently has), so the judge can be prosecuted under the part of the Constitution that authorizes the FDA. The we can do whatever the fuck we want to do commerce clause, I suppose.

    The prosecutor should be impeached for pretending there is no way to stretch one of the 4000-plus Federal crimes to fit this case.

  10. C. S. P. Schofield says

    The article that applies is the Unwritten Article, to wit;

    "Whenever a wrongdoer is publicly exposed, and the Federal Government is asked its opinion – no matter how groundless the request – the Government shall appear to busily consider the matter for not less than six (6) hours, and not more than one election cycle.

  11. Hasdrubal says

    Well, he was beating her for pirating music. Copyright infringement significantly impacts interstate commerce. Therefore regulating his behavior, which is the result of activity which would be commerce if it weren't conducted in defiance of copyright laws, is CLEARLY covered since it has something to do with something that is tangentially related to commerce.


  12. Collin says

    I picked to provide and maintain a navy, as flogging is naval tradition.

    On a more or less serious note, I suppose that someone on the Federal level could try a Civil Rights angle for the prosecution.

  13. Jamie R says

    It has to be all of the above. If you disagree, you hate children, and love child-beaters. Do you think the framers intended for the Constitution to protect child-beaters?

  14. says

    Hasdrubal – But he was ENFORCING the ICC.

    Frankly, bitch needed to be hit again, for putting the video online like it was a good fucking idea.

    Yes Jamie, They did mean it to protect child beaters… You think the founders use a fucking time-out corner? Hell no – they beat the shit out of their kids.

    Except for Franklin. All he did was have his son exiled to Britain.

  15. says

    Growing and using your own wheat fits within the commerce power. The reason is that it reduces the chance that you will purchase wheat which has travelled in interstate commerce. Wickard v. Filburn, 317 U.S. 111 (US 1942).

    Growing and beating your own daughter likewise affects interstate commerce. Reasoning is the same, that it prevents hiring of a person to submit to such treatment, which person may travel in interstate commerce in order to fulfill the demand.

    The problem is that in Wickard, there was an existing federal law barring use of one's own wheat instead of purchasing it. I doubt that there is an existing federal law against using one's own daughter instead of buying someone else's. Enactment of such a law, at this time, would not reach the judge because it would violate the "ex post facto" restrictions.

  16. John David Galt says

    The equal protection clause of the 14th amendment can plausibly be read as abolishing parental authority entirely.

  17. says

    Being an Aussie and therefore looking in from the outside at the current situation within the USA of not only ignorance of laws but down right ignoring of laws I am surprised you didn't have an answer below the "all of above", "non of above" that reads

    "what constitution?"

    Just an observation

  18. John David Galt says

    You must be thinking of Britain, where a collection of unwritten customs that nobody can recite is referred to as "the constitution." Thomas Paine blew that notion away in his "Rights of Man."

  19. Skip Intro says

    "That the United States Attorney even consulted with the local yokels is disgraceful."

    This seems pretty strong. I've never been an attorney, let alone a US Attorney, but it seems like detailing an assistant to look at a video and do a few minutes of legal research really doesn't rise to the level of "disgraceful".

  20. says

    Skip, I have a client that I think was the victim of a crime that actually has Federal jurisdiction but I can't get the local US Attorney to do that much.

  21. Mr Weebles says

    I voted for "To provide and maintain a navy."

    Only because I served in the Navy and didn't know the answer.

  22. bw1 says

    Merely by asking this question, you have revealed yourself to be racist, sexist, and religiously bigoted, to say nothing of endorsing the whipping of 16 year old girls. Everybody knows "enumerated powers" is just a right wing code word.

  23. PLW says

    Patents and Trademarks, because this is basically a question of the proper punishment for downloading mp3s. The US government has an interest in protecting its turf. If anyone should be beating a teenage girl for downloading files illegally, it should be a federal judge. This state judge is basically usurping federal authority, and (as a South Carolinian) I know where that inexorably leads.

  24. Skip Intro says


    The situation you describe seems like a better candidate for the "disgraceful" label to me.

  25. Bob Roberts says

    The Commerce Clause is too obviousl

    It's an offense against the Law of Nations. The video was probably seen all over the world, and the world was presumably offended.

  26. Peter K. says

    John David Galt grazes past I problem with the question: To wit, that not all of Congress' enumerated powers in the Constitution appear in the "enumerated powers" clauses of Article I, Section 8.

    There are these things called "amendments" which have added powers. There are: Amendment 13, Section 2; Amendment 14, Section 5; Amendment 15, Section 2; (Amendment 16 does not actually add a power; but rather, removes a restriction on the exercise of the taxing power); Amendment 19, second sentence; Amendment 20, Sections 3 and 4; (Amendment 21 directly prohibits private behavior without expressly giving Congress any power to enforce); Amendment 23, Section 2; Amendment 24, Section 2; Amendment 25, Sections 2 and 4; and Amendment 26, Section 2.

    And I still can't find any, unless it's "badges or incidents of slavery" rationale under Amendment 13. But that's a stretch, even by progressive standards.

  27. Peter K. says

    There is one other, on second thought, but I am not saying Congress has actually exercised this power as it applies to this incident. Under the equal protection clause of Amendment 14 — the clause originally cited by Galt, above — if a state public official such as a judge is engaging in behavior (criminal under state law) for which he is not getting prosecuted because of his official position, the victim can be said to constitute a "class of one" who is not being equally protected by state law because of the happenstance of her status as that perpetrator's victim.

  28. b says

    Yeah, if that guy getting slapped around by the Supremes for defending the withholding of exculpatory evidence didn't elicit some response…

  29. says

    Well, his twitter feed is active. So, it looks like he's busy with something…

    Or…he purchased Skyrim and he's lost all interest in other activities (at 15 hours of game play, I'm only level 15…)

  30. Laura K says

    At the risk of total hopless corniness, I hope all the Popehat contributors are OK and that this absence from the blog is for reasons connected to fun, health and prosperity.

  31. NLP says

    I've been worried for a while now. Do you suppose one of them is dead and the others are still trying to figure out how to tell us? It's been more than a month since Ken posted.

  32. Laura K says

    Scott I have been worried for some time but being a paranoid mumptius mother-hen with few outlets I was keeping my mouth shut.

    I don't know any of the guys personally but if any of you do can you mail them or tweet them?

  33. Brandon says

    Ken and Patrick (as well as some of the other, less frequent contributors here) are sometime posters on another message board that I frequent. Ken has posted as recently as yesterday on this other board about, believe it or not, having fun with Skyrim (so it looks like Xmas was right). I haven't seen any activity from Patrick on that board for nearly 2 months, but he is normally a much less frequent contributor than Ken is over there.

    I guessing they're OK insofar as they're both still alive and fighting the good fight, but I don't know what their absence here says about their current life situations.

  34. Sue says

    I signed up for twitter, just to try to send a message about our speculations here. Did they get hacked? This reply was not of the caliber expected of our fellas:
    " Popehat Popehat
    @stockingup99 It's because you touch yourself at night.
    Nov 29, 1:45 PM via web
    In reply to…
    stockingup99 susan
    @Popehat We're starting to talk about possible reasons for no new posts at popehat."

  35. says

    That was a Family Guy reference, Sue. I hope you didn't take offense.

    Everything's perfectly all right now. We're fine. We're all fine here now, thank you. How are you?

  36. IGotBupkis, Sailing the Economic Seas Betwixt Scylla And Charybdis says

    >>> To provide for the punishment of counterfeiting the securities and current coin of the United States? (0%, 0 Votes)

    Damn, I missed the correct answer, and so did everyone else?


  37. IGotBupkis, Sailing the Economic Seas Betwixt Scylla And Charybdis says

    >>> This is one of the few problems I have with digital media. The ability to fundamentally change a “published story” without ever acknowledging that the change happened.

    One reason I will NEVER, EVER own a Kindle.

    About a year ago, the Canadian Amazon inadvertently sold copies of — yes, the irony is so thick you could cut it with a knife — George Orwell's books to Americans, which they were not legally allowed to do due to differences in copyright law between Canada and the USA.

    Their response led to two revelations:

    a) That, having purchased and installed these books onto their Kindles, it was within Amazon's power to remove those books without permission of, nor even the fact of its removal — being granted to the owners prior to said act. The Kindle owners just found that the books were no longer on their Kindles (Amazon did refund the monies paid for them, mind you, not saying they ripped them off or anything direct like that).

    b) Apparently also acknowledged in the middle of this is that Amazon can also change the contents of books on the fly — again, without the Kindle owner being aware of it. Does anyone hear the music from "1984" playing in the background…? At the very least, they could delete the book and then re-install an altered copy, but I gather they don't have to do it on so gross a scale, they can actually alter a passage without your being aware of it.

    Sorry — my books are MINE, and once they are in my possession, no one gets to take them away without my permission or at least a court order.

    And no one is getting permission to "change" a passage, particularly without my knowing of the changes to be done — EVER.

    I have no idea if the Nook has this power, too — likely it does, but until I've been given that knowledge from a reliable source, I'll generously assume otherwise, but also state up front that I'm not owning any e-books that I can't play on my laptop or tablet computer without "special software" giving someone else DRM control over it. These people can Osculate My Posterior. "Not on Zee Left Side, Not on Zee Right Side, but smack in Zee Middle."

    Ideas, concepts, information these are not within your proper sphere of control. Creators deserve to be rewarded for their creations:

    Control is not nor ever should be, and likely cannot be, an option.