I've always had a less stringently minimalist reading of the Constitution than weblogger extraordinaire Radley Balko, and we've argued about it in the past, but I think he really goes off the rails in a recent TechCentralStation piece on federal legislation aimed at curbing prison rapes.
The argument for federal involvement is that the constitutional prohibition on "cruel and unusual punishment" (and perhaps also the "equal protection" requirement, to the extent that the discretion of prison officials or the character of the particular prison determines who shall be protected from his fellow inmates) as incorporated by the 14th Amendment empowers the feds to protect the civil rights of citizens against state incursion. Radley's counter runs as follows:
[T]he Eighth Amendment protects us from state-imposed cruel and unusual punishment. I'm relatively certain that no state explicitly sentences convicted felons to prison rape. Rather, felons are sentenced to prison, where rapes sometimes occur…. What the states are guilty of, then, is poorly policing an act that all of them have defined as a crime. At worst, they're guilty of looking the other way when the crime occurs.
This approach takes formalism just a notch too far. If the guarantees of the Bill of Rights apply only to the laws on the books, but are impotent in the face of abuses on the ground that states permit without explicitly authorizing, they are rendered quite toothless. Recall, after all, that the motive for the 14th Amendment was the protection of African Americans against state discrimination, which as often as not took the form of disparate enforcement of the laws. Does anyone think the demand for equal protection is satisfied if a state formally bans the murder of any person, but never enforces that law against the white killers of black citizens?
Certainly, there's a slippery slope objection for the federalist to offer here, and Radley makes it. But I think we can draw a distinction between the systematic failure to protect inmates against rape and the much more vague superset of instances of "bad policing." In the case of prisons, the state is at least a partial agent of the harm: It establishes the prisons in which convicts are confined and removes the ability of inmates to defend themselves against the felons with whom they're compelled to coexist. You don't get to throw someone naked into a pit of bengal tigers and then proclaim, with a look of wide eyed innocence, that it's nothing to do with you if the guy gets mauled to death.
Jesse Walker wrote about this issue back in August.