Did you guys see the cover of the Tuesday Sun-Times? It just said: "Race." So poignant. Thank goodness, at this important time in our nation's history, when there seems to be a consensus building for real structural political change, our candidates and the media are tackling race.
A quick digression:
The Thirteenth Amendment to the US Constitution abolished slavery, kind of. If you read the actual text of the amendment, you'll notice that it doesn't actually completely abolish slavery.
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have the power to enforce this article by appropriate legislation.
In other words, slavery (or "involuntary servitude") is legal — in prisons. I wonder if the passing of the Civil Rights Act of 1964, which has been in the news as part of a nebulous quarrel over terms and intentions between the two leading candidates for the Democratic nomination, and the subsequent explosion of the prison population in the United States, have any correlation? Let's see: black people on American soil are slaves, or, where they aren't slaves, they are subject to arbitrary capture and enslavement by roving "slave patrols." Slavery is abolished by the Thirteenth Amendment, and Due Process guaranteed by the Fourteenth. Nice. But following Reconstruction, Jim Crow laws and real and de facto segregation keep black citizens in a servile position in the economy and the polity. Not nice. The Civil Rights Act of 1964 forces the opening of the public and private space for black citizens. Nice.
Then something strange happened. In the 1970s, the prison population exploded. Then in the 1980s it went crazy, dwarfing even the insane '70s. Then, in the Nineties, when there was a net drop in violent crime, it... continued to increase. Extraordinarily not nice.
Hey... do we have a pseudo-slave society in America? I mean, I know our own Department of Justice has demonstrated that we are the worst prison state on Earth, with 7 million citizens in the correctional system (China is second with about 2 million, though, seriously, isn't most of that country basically a prison?), but what would constitute a pseudo-slave society? Here's a working definition: how about a society where people can be forced into servitude without real due process?
The number of black men in prison is rapidly approaching one million. The number of black men in college is about three-fourths the number in jail. The statistic is often thrown around that more black men are in prison than college, though the usefulness of the fact is questioned on the basis that only one set of the population (people between the ages of 18 and 24) are really college-goers, whereas you can be thrown in prison between the ages of 18 and infinity. Still, the fact that the numbers are even comparable is worrisome. Particularly if you're a black male, I imagine. I mean, they aren't locking up Middle Eastern males at that kind of clip. Yet.
Well, you might be saying at your John Birch Society Dodo Bird Egg Tasting Social, maybe they shouldn't go around committing all those crimes! This is a democracy, after all. With a Constitution. A Constitution that guarantees due process! It's right there! In the Fourteenth Amendment, where we left it! Right after the one that abolished slavery, stupid! Certainly, we should be allowed to make prisoners work and earn their keep!
Wait — what about The War On Drugs!? Damnit.
If you believe in substantive due process (and, to be fair, a portion of the legal profession, including at least two Supreme Court Justices, don't), then the War on Drugs is probably unconstitutional. The date the War on Drugs was launched doesn't really matter. It was some time in the last few decades. Although, if you were going to press me on it, I guess I'd point out that it started with the passage of the Controlled Substances Act of 1970. Now that I think about it, hey, wasn't that right after Richard Nixon got elected using something called the "Southern Strategy"? Wasn't this also the campaign that introduced us to the political theme of Law and Order (yes)? So... the War and Drugs (and "Law and Order" legislation generally) violates the Fourteenth Amendment in order to exploit a loophole in the Thirteenth.
Two points in the service of fairness: first, obviously, not all prisoners are in jail because of the War on Drugs. Still, the massive drug markets generate huge amounts of crime that may seem unrelated, particularly in poor communities. Second, not all prisoners perform for-profit prison labor; many simply generate a profit for subcontracted private interests by fact of their imprisonment. On that first point, the Southern Strategy ushered in not only the War on Drugs, but the Law and Order Era. The Law and Order Era piggy-backed on the The War On Drugs with that same Lock 'Em All Up, Let No One Sort 'Em Out sensibility.
Hold on, this is getting fishy.
Era (approx. years) |
Black people citizens? |
Slavery (1619-1865) |
No |
Reconstruction (1865-1877) |
Yes, Relative To Previous 15+ Generations |
Post-Reconstruction (1877-1964) |
Kind Of (Not Really) |
Civil Rights Act to "Southern Strategy" (1964 to 1970) |
Yes |
"Southern Strategy" and Law and Order (1970 to present) |
Yes, But Many Forced Into Involuntary Servitude With Questionable Due Process, Or Pseudo-Slavery |
Hey, guys... have the Republicans created a Slavery-Lite Society?
No, they haven't. Because the 91st Congress that passed the Controlled Substances Act was controlled by Democrats — granted, a significant portion of those Democrats were Southern "Yellow Dogs" who would trickle across the aisle over the next 20 years. In fact, in the 91st Congress, every state that was part of the Confederacy had a Congressional delegation that was majority Democratic. But still. We can't say Republicans created the modern Slavery-Lite Society.
We can of course say that conservatives created a Slavery-Lite Society.
The State, meanwhile, continues to privatize the correctional system in order to make sure that our fancy new plantations aren't just benefitting the State, but private enterprise.
Wait, did I say plantations? I'm sorry. That could be construed as offensive. I guess I just thought of that word because these prisons are often in remote rural areas, where the population of the prison counts for population, enhancing their political power, although the prisoners typically cannot vote — which makes them actually worth more than three-fifths of a man. So that's progress! And these rural areas often elect conservative politicians, too, who support Law and Order and the Gettin' Tough on Crime. Ah well.
Hey, here's a little thought experiment. I wonder what the breakdown of the prison population is by class? Has the explosion in prison population since Nixon's Southern Strategy impacted all classes equally, what do you guys think? I mean, the boom has coincided not only with civil rights legislation, but also with the crumbling of the labor movement (you didn't think you'd get through a whole column of mine without those two magic words, did you?). Well, let's take a look... wait. We can't! They don't keep class statistics. OK, so educated guess: what percentage of the flourishing prison population do you think comes from the working class? What percentage, for example, do you think held a bachelor's degree when they were sent to jail? Just a fun little riddle for you!
Man. There seems to be a Slavery-Lite Society being built up around us, using an economic class in general and one race in particular as chattel for private profit and political showmanship.
Anyway, back to the point. This column isn't about all that frivolity. It's about something serious: Did you guys hear the media tell us that "race" became an "issue" in the "election campaigns" of the "candidates" who care about "real issues?" One of the Ivy League millionaire's friends said something, and the other Ivy League millionaire's friend got outraged, but it was misconstrued, or maybe it wasn't, but we're not sure, because we just have to guess at motives and intentions. (We think with our guts nowadays, if you didn't know). And then each candidate's supporters were like, "Our candidate is perfect!" And then some "pundits" thought they detected some other race-ish things, but it's just a guess. And then the one was all, "No, you said it!" And the other one was all, "Well, that's not what we meant, maybe you shouldn't be so stupid!" And then the other one was like, "Whatever, you totally know you're lying!" And then some media people were all, "Oh no they didn't!" It was crazy!
We talked about race by talking about how we talk about it. Sensibilities were totally offended, in play-pretend.
maardvark / January 16, 2008 12:55 AM
What, exactly, is unconstitutional about the Controlled Substances Act? And "substantive due process," which even the fraction of the legal profession that believes in it will tell you is meaningless without context, isn't going to cut it.
Substantive due process is the idea that certain rights are so fundamental that government cannot pass laws that abridge those rights--such laws violate due process regardless of the procedure used. Conservatives used this argument in the early 1900s to strike down labor laws (Lochner v. New York and its progeny); in that case, the "fundamental right" allegedly infringed was freedom of contract. Substantive due process returned in Roe v. Wade; there, the fundamental right was something like the right to control your own body. In any case, to invoke substantive due process you first have to have a right in mind that everyone agrees is fundamental, that the legislation violates. Thus, "substantive due process" isn't going to work as an argument on its own--you need more. In any case, because substantive due process is in effect a way of inserting unwritten rights into the constitution, it's no wonder that many people look askance at it. (To be sure, the constitution says that there exist unwritten rights--that's what the Ninth Amendment is for.)