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.)

Pedro / January 16, 2008 11:15 AM

You've really developed a knack for retrofitting myopic conspiracy-centric explainations to complex systems. Have you considered writing for Adbusters?

Jacob / January 16, 2008 1:16 PM

There is substantial evidence to indicate that the high incarceration rates in the US (compared with Europe) have little to do with different rates of violent or other crime and more to do with....

shhh...

Ramsin / January 16, 2008 2:04 PM

Pedro-
I thought I made a pretty good case here. Care to demonstrate where I am being myopic and conspiratorial?

Chef / January 16, 2008 5:31 PM

my•op•ic mahy-op-ik, -oh-pik : shortsighted, narrow-minded.

With that…Ramsin, you have blamed Republicans for every problem facing our nation in your articles. I have yet to read you lay blame on Democrats for ANY problem facing America.

There is no way that the Democrats hands are clean of all the problems in America.

I think you are shortsighted and narrow-minded because you only lay blame on one side of the aisle. Very short sighted, and very narrow-minded.

If you are going to be so shortsighted and narrow-minded in your writing, then at least be wide-eyed to the fact that people are going to see through you and call you out.

You are not middle of the road, so stop acting like one. When someone points out that you are just as far off the spectrum as any conservative (just on the other side of the spectrum), accept it.

Going off the deep end is not good for our country…whether the deep-end be the far left, or the far right.

I don’t know which cracks me up more…liberals who say they are “middle of the road” or conservatives who say they are “middle of the road”.

I hope this answers your question as to why you are myopic.

Interesting article. Before I even started reading it I said, "what is he going to blame the repub's for this time". Way to not let me down, brother!

P.S. Funny, I thought “Ramsin” was Assyrian for “I grew up in Schaumburg”. Weird.

Ramsin / January 16, 2008 7:17 PM

Oh, Chef.

First of all, you really need to start addressing the content of these columns rather than just coming here to attack me personally. It is distracting to people who want to address ideals.

First, I never said I was middle of the road, did I? I'm on the Left. Pretty outspokenly so. However, just the fact of being on the Left doesn't make a single fact wrong, or a single idea untrue.

Second, I don't blame Republicans for anything in this column. I blame conservatives. Big difference.

Third, I agree that Democrats' hands are not "clean" of problems. In fact, don't I point out that Democrats passed the very act that started the War on Drugs in this column? Indeed, I do. Democrats and Republicans have both done many terrible things--and good things. Republicans, for example, freed the slaves. That was good.

But you know what? Those Republicans were to the political Left of the Democrats who opposed freeing the slaves. That's where I live--on the Left.

You really thought that's what "Ramsin" meant? Weird. It doesn't mean that. Why, the name "Ramsin" existed for millenia before the suburb of Schaumburg existed!

I know you're trying to throw "growing up in Schaumburg" out there like some kind of bombshell. There's nothing wrong with growing up in Schaumburg. Although I happen to have a distaste for Schaumburg, it's suburb like other affluent suburbs.

Of course, I didn't grow up in Schaumburg. In fact, I've never lived in Schaumburg.

Tell me something, though, Chef: if I HAD grown up in Schaumburg, would there be no prison-industrial complex? Would Conservatives not have begun an era of unprecedented imprisonment of American, particularly black Americans?

Tell me, Chef, if I HAD grown up in Schaumburg, which I didn't, would conservatives (both Republicans and Democrats) not have fought tooth and nail against the Civil Rights Act, and desegregation?

I'd encourage you to address personal problems you have with me to me in emails rather than cluttering up this comments section, or I'll simply delete them.

I get it, you hate me because you can't stand up to my arguments. Everybody gets it.

Man, I can even pick apart your ad hominem attacks: are you competent at anything?

Chef / January 17, 2008 9:38 AM

Hold on there cowboy!

You can't have it both ways.

YOU ASKED, "Care to demonstrate where I am being myopic?"

I was just answering your question.

And NOW you are slinging the good name of Chef through the mud by claiming I just come on here to attack you personally?!?!

Wrong, sir!

While you and I sit on different sides of the fence on some issues, you do make me think.

Cheers for that.

But hey man, you asked.

I think Col. Jessup put it best, "I would rather you just said thank you, and went on your way".

Pedro / January 17, 2008 10:24 AM

Ramsin,

Just because you have a soap box does not mean you are a credible voice. In fact, you are gleaming example of a man who hears only what he wants to hear and bullies the rest.

...or deletes the rest.

Blogger muscles!

You see, the world is made up of "n" number of variables interacting with one another. As time "t" increases, the number of permutations of those variables goes to infinium. You can call these combinations reality or "r". So you've been taught to weave a narrative thru those permutations focusing only on what variables support your thesis, disregarding the fact that r+t1 is different than r+t2 and r+t3 and so on, and that in each, new varables that could not have been predicted at "t" have been introduced that cause "r" to go into a new direction.

So here we sit at:
Slavery (t389 - t143)
Reconstruction (t143 - t131)
Post-Reconstruction (t131- t44)
"Southern Strategy" and Law and Order (t38 to tn)

...and you have disregarded the trillions upon trllions of contributing variables to today's reality and have said that back in the 70's conservatives sought to create a psuedo-slave society by introducing legislation aimed at reducing crime.

That is not really an argument. Its small-minded jibberish trying to sound smart.

So, please stop trying to pass this off as real mind-blowing stuff. From what I have seen, you don't have the ability to think outside of your own box.

Mateus / January 17, 2008 10:49 AM

I must agree, this article is total BS. Among the many flaws in reasoning is this idea that somehow Republican support of the war on drugs ended as a directive to municipal police officers to lock up black people in an extra-judicial manner. I am curious about through what channels this directive was communicated and how the Repubs have managed to keep a lid on it all these years. It also ignores that indeed white people and latinos have been locked up under the war on drugs. You also take as a given that due process is violated by virtue of the existence of war on drugs policies. I might add that mandatory minimum sentences, while perhaps ridiculous, do not violate due process - penalties come after the trial.

Perhaps the worst thing about this aritcle is that as a general point I agree that the war on drugs is stupid and that conservatives and/or Repubs have sponsored lots of terrible legislation. But it is this kind of quackery that serves to discredit the left, and it is sad that you (intentionally or not) resort to such vitriol and histrionics to energize people. Strong arguments can be made that are much more reasonable.

Dave / January 17, 2008 11:16 AM

Did you guys read the article, or did you just skim it for keywords?

"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..."

"We can of course say that conservatives created a Slavery-Lite Society."

You do understand that there's a difference between Republican and conservative, right?

Chef / January 17, 2008 11:45 AM

Hi Dave,

I can only speak for myself, and yes I did read the article. Very interesting.

The post I wrote was in reference to Ramsin’s question (January 16, 2008 2:04 PM), not the article.

I do know the difference between a Republican and a Conservative.

In the same respect, I do see through the Republican bashing that goes on in these articles…you don’t? The author goes as far to say he IS on the Left…period.

Now, why would anyone believe anything he writes without thinking it is skewed to begin with? Further, most people who fall on the far right or far left often have an agenda in their head before the issue is even investigated.

“Three words” (No, they haven’t) are not going to convince me that the author is no better than, say, O’Reilly or Limbaugh. In all these cases, the journalism is skewed and irresponsible.

Great article, though.

Ramsin / January 17, 2008 11:47 AM

Pedro-
It isn't fair to accuse me of trying to silence dissent because I prefer to keep debate here on argumentation and facts rather than personalities.

You raise good points. It is true that there are many variables--that in fact, the idea of causation itself is tested by the complexity of human societies and motivations. I don't dispute that.

Are there many, many variable that contribute to the rise in prison population that seems to disproportionately target one race and class?

Certainly.

I was not clear that, of course, one movement (movement conservatism) did not sit down with a cartoon-style blueprint and plan this.

Let's talk causation. For any event or phenomena in a human society, there are going to be many, many variables that contribute. Just trying to define the terms of an "event" or "trend" is hard enough!

So, for example, people talk about the "fall of the Roman Empire." But when did it fall? And how do you define a "fall". Once you come to a working definition, you go on: what "caused" it?

The "outsourcing" of the Empire's defense to the provinces?

Lead-based utensils?

Christianity?

There is no single clear cause.

Similarly, the explosion of the prison population, and the exploitation of that population for private profit, has many causes. Not least among those, as I passingly allude to in the column, is the collapse of the labor movement and, therefore, the evaporation of well-paying, entry-level, low-skill jobs.

But we can look at political organizations and the ideology that drives those organizations, the policies those organizations create, and judge subsequent political phenomena that come from those policies.

If you will concede that social phenomena can, indeed, have primary, secondary, tertiary, etc. causes, then we can procede from there.

Did the War on Drugs, and the general emphasis on "Law & Order" (which we can define loosely as "enforcing order" or punishment-based justice, rather than attacking root causes, or prevention-based) lead to an explosion in the prison population?

I think we can say that, yes, it did.

Has this increased incarceration rate reduced crime?

No; to the contrary, it seems to be self-reinforcing.

Why did one political organization, let's call it X, craft these policies?

Was it because they had a meeting where they said, "How do we resurrect a pseduo-slave society?"

Certainly not.

Was it because at least in part they understood the political advantage in exploiting the fears of middle-class predominately white Americans of working class black Americans?

I think that's clear, and I think the history of the Southern Strategy demonstrates this. For illustration, consider this quote by a Nixon strategist, snipped from Wikipedia:

"The more Negroes who register as Democrats in the South, the sooner the Negrophobe whites will quit the Democrats and become Republicans. That's where the votes are. Without that prodding from the blacks, the whites will backslide into their old comfortable arrangement with the local Democrats."

It is fair to criticize me for at times harsh and overly forceful language (I don't know if "histrionics" is fair)? Sure. Does that by necessity undermine the argument? I don't think it does.

Pedro, you say in your comment that I have ignored "trillions" of variables: is this an overstatement? Are you trying to score a rhetorical point? Or do you honestly believe there are "trillions" of causese?

Do you therefore contend that we can never attribute a cause to a social phenomena without generating a list of trillions of things?

Or do you concede that social phenomena (say, for example, the increase in the divorce rate) can be reasonably attributed to a policy or series of policies, reinforced perhaps by other contributing factors?

If you will concede that, is it so outlandish to point out that, considering the policies of conservatism, beginning with their campaigning on "Law and Order" against Humbert Humphrey in 1968, and the subsequent passage of CSA and related legislation has ended up creating a "pseudo-slave society" based on the working definition I provide in the column?

Mateus makes a good point, too, that violation of due process does not have a one-to-one correlation to the exponential growth of the prison population. It doesn't hurt, though, and it is certainly a big part of the equation: the police torture scandal here in Chicago is only one example.

However, I don't ignore that whites and latinos have been locked up at a great clip, too, in the war on drugs--in fact, I point out that it is ultimately more of a class issue than a race one.

However, the same reduction I am accused of he is guilty of: where do I say anything about Republicans issuing directives to police?

Before I continue, I want to emphasize that "Republicans" are not the problem here, but conservatism.

I have defended municipal police forces in this very space. They are simply doing their job. The War on Drugs is wrong, it treats what is a public health issue as a criminal issue, and this actually helps generate the very illegal market it is meant to destroy, and this creates atmospheres, particularly in urban areas, that can come to resemble war zones. The behavior of police in these areas is often bad, but at times also understandable.

The policies have lead to myriad phenomena. Perhaps I should have spelled that out, but I thought it was just understood: policies have impacts, effects. Pedro might disagree and say that policies are just one of trillions of causes of effects, but if that is our standard, I don't know how we could ever debate the effects of policies.

Let's look at the argument I made in the column in a less tongue-in-cheek manner, then:

Conservatism rode to power in the late 60s and early 70s in part based on an emphasis on "Law and Order"; There is a reasonable agreement that this was at least in part done to exploit what at the time were enormous racial tensions.

The policies of that ideology included the War on Drugs, and Law and Order legislation that privileged punishment over prevention. "Due process", including the principles of jury-of-peers, and access to adequate legal representation, as well as invasive "no-knock" rules etc. was compromised in the effort to "get tough" on crime.

Those policies, then, based on what could be viewed as a compromising of civil rights of citizens, particularly one racial group but more broadly one class, resulted in an explosion of a prison population that falls under the "involuntary servitude" exemption in the 13th Amendment.

To put it simply, conservative ideology, exploiting racial tensions, put in place policies that have created a huge class of people subject to involuntary servitude, which is increasingly providing profit to private interests.

The point of the column, of course, was that this is a serious issue, and when we talk about race as an issue, this is the type of thing we SHOULD be talking about--I'm glad that this column has at least excited this kind of debate. It's funny--I was essentially criticizing the DEMOCRATIC candidates in this column, for focusing on frivolities.

I encourage everyone who reads this column regularly to test my assertions and arguments, or contradict my facts if they can be contradicted. I am much more concerned about being wrong than I am thrilled about being correct. I am never unwilling to acknowledge reasonable arguments based on accepted facts.

What I am unwilling to do, ever, is concede my point SIMPLY because it can be classified as being "on the Left", or seemingly "too harsh" to one side or the other.

Thanks for raising these points. I think I've provided an adequate defense of my point, if not my style, here.

Ramsin / January 17, 2008 12:07 PM

I refer you for further illustration to this quote by Lee Atwater, which I won't reprint here because of its use of certain abhorrent words:

Lee Atwater on the Southern Strategy

I think this demonstrates the coded intent of the Southern Strategy, of which "Law and Order" (universally acknoweldged as having begun with the 1968 Nixon-Humhrey campaign, on the heels of the Convention here in Chicago) was a vital part.

Given this understanding, the assault on one race in particular for imprisonment, and by extension for involuntary servitude increasingly for private profit (but certainly for political gain) is demonstrated.

Pedro / January 17, 2008 12:54 PM

The point I would like to make is that it is a disingenous assertion to try to look backwards into a complex system and say aha! I know why this happened and give a list of 3-4 factors, when there are thousands of factors that go into those 3-4 factors.

The more that you look into why things have developed into what they have become, the more you will realize that it is a random walk, and not some design.

However, there are whole industries that are built on looking backwards and selling a story explaining why this why it is.

w / January 17, 2008 1:24 PM

Pedro, according to your logic, nothing should be analyzed anywhere, and the entire academic field of that silly thing called "history" is moot.

It is perfectly, PERFECTLY, reasonable to look at the intent of the conservatives over the last half century, post civil rights, and content they attempted to maintain the status quo. "Variables" don't count when discussing intent of policies.

This is a discussion on the intent of certain policies. Not on what variables caused what to who, but, rather, that the intent behind certain conservative policies was an attempt to do X, and that the policies have succeeded in doing X, because there is such a thing called cause and effect - despite the existence of trillions of pesky "variables" that add/subtract from the effectiveness of the ultimate goal of X. Things still actually "happen".

Ramsin / January 17, 2008 1:25 PM

The more that you look into why things have developed into what they have become, the more you will realize that it is a random walk, and not some design.

Certainly true of, for example, evolution by natural selection, which has no design.

Also applicable to many human social phenomena, too. "Tulipomania" comes to mind.

In the social sciences, particularly in applied politics, and law, which are human creations intended to have material effects, I think it is fair to say that a policy has had an effect, and the framers of that policy can be held to account for those effects, particularly if you can demonstrate some malice in their intentions.

Incarceration rates must by definition have a definite relationship to the laws people are incarcerated for, and the application of those laws. Without laws you would have no incarceration; without policy, you would have no laws; without governing ideology, you would have no policy.

Your point is well made. For any given social phenomenon, there is not likely a single genesis, and it certainly was not a fully controlled and designed route.

Pedro / January 17, 2008 2:11 PM

w,

I don't think you have a clear comprehension of what I am saying.The real world is not linear math.

w / January 17, 2008 2:29 PM

Pedro,

Duh.

But things still happen with intent, and cause and effect is still an actual thing.

R / January 17, 2008 2:48 PM

Pedro,

Cute math analogies aside, W's point remains valid: according to the logic of your initial argument, the entire academic pursuit of history would be futile and impossible. You accused Ramsin of being myopic because there were "trillions upon trllions of contributing variables" [sic] that led to our current condition, and he was only considering a few. By that logic ANY historical analysis could be discredited. This isn't chaos theory, it's one man's attempt to explain a system he sees as flawed and unjust, and because you disagree with him you've called trillions of nameless factors to your aid. Watch:

"Hitler didn't actually kill any Jews."

"Wow, that's a bold statement, what DID kill the Jews?

"Trillions and trillions of other factors that haven't been taken into consideration!"

Brian / January 17, 2008 8:23 PM

Pedro,

Don't even bother, dude. Ramsin Canon is not worth arguing with.

He spouts his recycled 1960s [heck, 1860s!] class war rhetoric, invites commentary and then freaks out when people point out that his facts are wrong, and his interpretation suspect.

He is absolutely unable to cope with anyone who doesn't share his comic book workview.

If you point out that his facts are wrong, he will accuse you of ad hominem attacks, dish out a bunch of ad hominem attacks, then write another 2000 words of incoherent class war that reads like In These Times or the Nation paraphrased and re-written by Mussolini.

The poor guy is going to read this stuff in 10 years and be embarrassed that he ever held such a childish worldview. Until then, the best thing to do is ignore him.

He gets this soapbox because either GB owes him money or they understand the value of a good train wreck for bringing in ad revenue.

It is like talking to the smelly guy in the tinfoil hat on the el. Totally not worth it.

I'm only posting here to warn anyone else off, so Ramsin, don't bother writing another 2000 words "rebuttal" about how George W. Bush and the Trilateral commission were responsible for the loss of the silver standard and the stolen election of 1896. Really, I'm not going to even read it anyway.

Ramsin / January 17, 2008 9:32 PM

Yeah. Poor me.

I'll probably just accuse guys who compare me with "the smelly guy in the tinfoil hat on the el" obsessed with something called the "trilateral commission" of being unserious personal attack artists incapable of mounting serious arguments.

C-Note / January 19, 2008 3:24 PM

Maardvark: I realize that the CSA is "constitutional" in the sense that it's "good law," but there is definitely an argument to be made that it goes beyond Congress' enumerated powers, that the Commerce Clause was not to be construed to permit federal prohibition of objects of commerce, but only regulation, and there's also probably a Ninth Amendment argument that could be made with a straight face, at least by libertarians.

C-Note / January 19, 2008 3:31 PM

Mateus: you are correct, at least technically, that mandatory minimum sentencing does not violate due process; however, it's also arguable that it's impermissible under non-delegation doctrine for Congress to delegate its legislative role to an agency whose only purpose is to promulgate law. It's not just me: see Scalia's dissent in Mistretta v. U.S. (1989). Note also that the courts have recognized that judges need to be able to deviate from those minimum sentences, see Booker/Fanfan and U.S. v. Gall. And as a purely rational matter, it does not make sense for Ted Kennedy to be in a position to promulgate mandatory sentencing laws, unless, of course, they involve no prison time at all.

C-Note / January 19, 2008 3:41 PM

Ramsin: once again, you are correct that something doesn't smell right with respect to the current situation of epidemic incarceration. I don't know how sinister the intent may have been, but the effect surely is.

I imagine that in most societies, it is primarily the lower economic classes that tend to populate the prisons - I could be wrong, but I doubt it. But poverty and the Controlled Substances Act, combined with the mandatory minimums, seem to be a terrible combination.

However, in most prisons I've visited I've been struck by the fact that there isn't much opportunity to work, and that many inmates are locked up for the majority of the day with nothing to do. Perhaps this is different in the South, but I don't know. I imagine that some of these people would like the opportunity to do work, even if they're being exploited. I'm not sure what to say about that, except that in many situations it looks as if the policymakers would rather lock folks up for 23 hours a day and let the go crazy than allow them to work. I guess I only say that to say that the major objective is to keep them out of sight and out of mind, rather than to profit on their labor.

C-Note / January 19, 2008 4:50 PM

Ramsin: also, let me just say I don't mind if you go ahead and print that Lee Atwater quote. I'm from Atlanta, originally, and I can tell you that white people down there do say "nigger" a lot, and I'd rather hear them say "nigger" in public than call us "African-Americans" if they'd rather say "nigger." And Lee was right.

maardvark / January 19, 2008 6:22 PM

C-note, you're probably right that the Founders, when they said "interstate commerce," didn't have the Controlled Substances Act in mind. Strictly aside from everything else, the CSA is essentially a police-power statute, and of course the one thing that the founders were very careful not to give the Federal government is a general police power.

Of course, Congress has passed so many laws (good and bad) that stretch the commerce clause that it's all but empty to argue that a statute is unconstitutional because it doesn't fall within the enumerated powers. Ironically, it was Rehnquist who brought back meaning to the commerce clause--see the Lopez case, striking down the Gun-Free School Zones Act, because it had no economic dimension whatsoever. And yes, that's what it appears to require--in order to be unconstitutional, the statute has to have demonstrably nothing whatever to do with commerce. However, the CSA controls "drug traffic"--they're very careful to put it like that.

C-Note / January 20, 2008 6:31 PM

Maardvark: you're right that it's almost useless to insist that the CSA is an unconstitutional use of the commerce clause. Just as it's useless to say that it was unconstitutional for President Bush to do some of the things that he's doing in other contexts - the operative idea being, well, who's going to enforce one's personal opinions of constitutionality?

But look at Gonzales v. Raich, for example. The Court really had to stretch to hold that California's medical marijuana program affected the interstate marijuana market (yeah, by cutting legitimate medicinal marijuana users out of the market - "hmm... should I let my insurance cover this, or pay cash in the illegal market?").

I guess all I'm saying is that the Supreme Court suffers from an institutional limitation - that it lacks enforcement power and has to compromise in order to retain what little authority it has. But the thing is that, while the Court has the authority to declare statutes constitutional, I still retain the right, to declare them unconstitutional, in my reasoned opinion, even if I don't have the power to enforce my opinion.

There was a reason that Congress had to amend the Constitution in order to pass laws prohibiting alcohol. Unfortunately, although that amendment was repealed, the principle has been lost.

Ramsin / January 20, 2008 9:09 PM

who else feels like they're getting a lot smarter just by reading this exchange?

Please resume, sorry for the interruption.