May 15, 2009
A Good Thing About the Obama Administration?
President Obama's new drug czar said some very intelligent things:
"Regardless of how you try to explain to people it's a 'war on drugs' or a 'war on a product,' people see a war as a war on them," he said. "We're not at war with people in this country."Gil Kerlikowske, the new White House drug czar, signaled Wednesday his openness to rethinking the government's approach to fighting drug use.
Mr. Kerlikowske's comments are a signal that the Obama administration is set to follow a more moderate -- and likely more controversial -- stance on the nation's drug problems. Prior administrations talked about pushing treatment and reducing demand while continuing to focus primarily on a tough criminal-justice approach.The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice alone, with treatment's role growing relative to incarceration, Mr. Kerlikowske said.
Larry Kudlow loves to quote the old Reagan joke about the young man who gets a big box of manure for Christmas and gets all excited, saying "there must be a pony around here somewhere!" That's optimism.
After making campaign noises about a more relaxed attitude to domestic wars, the appontment of Eric Holder at DOJ was seen as a big step back. I have to say Kerlikowske sounds like a step forward.
Obama Administration Posted by John Kranz at May 15, 2009 11:27 AM
It remains to be seen if Kerlikowske's "domestic contingency operation" on drugs, whatever form it takes, will actually "work" (as we like to say around here.) Yes, let's be optimistic and hope for a pony.
Posted by: johngalt at May 15, 2009 1:27 PMWe likely have some different goals for what constitutes "working." If incarcerations go down, I say the program works.
That goal seems pretty achievable.
Posted by: jk at May 15, 2009 2:10 PMJK, that's a pretty low bar, my friend. Merely legalizing a crime may reduce incarcerations but does not make the behavior go away. Moreover, as I've argued, drug use is not a victimless crime and legalizing it will not reduce the number of innocent victims (e.g., children, spouses, disease transmitees).
I will agree that current drug policy is less than perfect. However, the same can be said for any law enforcement endeavor. I will also concede that incarceration is often over-prescribed and does nothing to address the underlying problem.
I believe that sound drug policy has four cornerstones: 1) education, 2) compulsory abuse treatment, 3) interdiction, and 4) incarceration for dealers, drug-related crime and repeat abusers for whom nothing else works.
Posted by: Boulder Refugee at May 15, 2009 4:00 PMI find that, when setting up an Obama Administration policy win on ThreeSources, a low bar is a great ally.
I'm going to ask you to look in your heart of hearts and tell me that your four points are valid for the Federal government. Where in the Constitution do you see license for education, compulsory treatment, interdiction (I'll give you the Commerce clause on this one) or incarceration for drug-reared crime?
If the States wish to institute the four-point BR plan they may. However, at least eleven states have voted to decriminalize marijuana for at least medical use. The Feds have no jurisdiction throwing Angel Raich or Tommy Chong in jail for activities their home state chooses to allow.
So, yeah, just backing off a bit is a victory for liberty.
Posted by: jk at May 15, 2009 4:18 PMFirst of all, you're assuming that The Refugee has a heart and there is a long list of people who would beg to differ.
Nevertheless, you argument is a good one. However, if you believe that drugs (especially narcotics) should be controlled substances, then as soon as they cross a national border or state border, the issue becomes a federal beef. Given that most narcotics originate overseas, this covers a large percentage. Given that drugs are not identified by country of origin, I would grant some leniency to law enforcement to use circumstantial evidence. I will concede that local meth labs and the like should come under local control.
Education will be largely local. And, I don't have a problem with schools spending time on it because it impacts schools (though I would leave it up to local school boards). Compulsory abuse treament, interdiction and incarceration will be determined by jurisdiction. Drug crimes across state borders are federal issues, just as any crime across borders is.
Posted by: Boulder Refugee at May 15, 2009 4:47 PMUmmm, no. Absolutely not. I think that among our many serious disconnects from a limited government Constitution you would have to rank highly the "Federalization" of crime. We've made so many things a Federal offense, it starts lo lose its meaning.
You throw Federalism and States' rights out the window twice, BR. First "as soon as they cross a national border or state border, the issue becomes a federal beef." Absolutely not.
Yes, the Feds have leveraged the Commerce Clause to pry into lots of places they do not belong (and thanks to Wickard v Fillburn, even intrastate commerce) but I do not cede that it is right. I think you could control sex toys in Alabama that are legal in San Francisco. In BR world, the Feds are on the case as soon as they hit the dock of an American importer?
By the same token "drug crimes across state borders are federal issues, just as any crime across borders is." I do not believe that to be the case. If I jaywalk in Duluth, MN and end up in Superior, WI I can expect the FBI to get involved?
Federal crimes are Federal crimes. And I flatly reject making drug possession a Federal crime because it has no Constitutional foundation.
Posted by: jk at May 15, 2009 7:08 PMJK, this is a classic example of "latte logic" - sounds great in a coffee house but is totally impractical in the real world.
The argument regarding sex toys between jurisdictions is specious because sex toys are not controlled substances. I believe that narcotics should be controlled subtances and you do not, so that's that. I might be persuaded to allow individual states to make the call on pot, but that's as far as I go.
The argument regarding jaywalking in Duluth is also a specious strawman. (Obviously, it should be legal in the winter to avoid freezing critical body parts.) Seriously, it is a strawman. Jaywalking a federal beef? Obviously not. The feds don't pursue interstate misdemeanors.
In JK's world, a Colorado bank robber or ax murder would only have to book it across the Kansas line to be home free. There would be no reason to have an FBI, since all crime is committed locally by definition. Having each state set up a separate law enforcement cooperative arrangement with the other 49 is not practical given the mobility of society. I'm OK with the FBI as a mechanism to significantly reduce crime.
In addition to placing specific limits on the Federal government, the Constitution was also created to form a more perfect Union and promote the general welfare. I'm not trying to make that phrase a catch-all to justify anything, but I think your scenario creates general chaos, not general welfare. Even under the strictest Constitutional interpretation, I think you'll agree that we trade a certain amount of individual liberty for a functioning society. Am I trading some of that precious liberty to battle/reduce/eliminate narcotics, which I believe is a scourge on society and contrary to the general welfare? Yes, yes, yes.
Posted by: Boulder Refugee at May 15, 2009 11:56 PMJust out of curiosity, would you leave border enforcement and immigration up to individual states as well? The Constitution addresses the issue of citizenship, but I don't think it address the issue of immigration regarding who and how someone may enter the country.
Posted by: Boulder Refugee at May 16, 2009 12:02 AMMmmm. Lattes... You're the best, brother and, as a rule, far smarter than me but you are losing. bud. Big time.
You say limited government and a coherent reason-based philosophy are fit for the coffee shop but not applicable to real world governance: "Yes we'll limit Federal power to Madison's little purview, but when it is obvious that we need to expand government powers for the general welfare, we will do so."
They tried using the general welfare clause on Madison before he died. He said that there no use having a Constitution if one was to construe the clause to believe that government can do anything it wants. If you draw the line such that every narcotic but pot and booze (I don't remember pot's enumeration in the Constitution, but then again, I have a very old copy) is controlled by the Federal government, then there really is no line beyond which government can aspire. Clearly, sex toys and trans-fats and incandescent light bulbs and tobacco are next.
I am for having a clear, constitutional line. It strikes me that immigration controls and enforcement could be easily defended under the 14th Amendment and that prosecution of bank robbery might be a legitimate use of the commerce clause.
If an activity of Federal law enforcement is necessary to the general welfare, then let us amend the constitution. We did not just decide slavery was not cool, we ratified the 13th. I'm not a big Carrie Nation fan, but her folks ratified the 18th to provide a truly legal if misguided prohibition of alcohol.
Much as I am comfortable letting the Refugee decide what is legal and what is not, I am concerned what happens when you lose an election and a less righteous individual than you wields your power.
Perhaps if we were to limit Federal power to what was enumerated in the Constitution...just a thought.
Posted by: jk at May 16, 2009 12:56 PMWell, if I do lose, at least I can say I lost to the best. However, in order to lose, I think you have to convince me, which so far ain't happenin'.
The Constitution provides a framework for society, not a prescription for every ill nor every law. It the Constitution were that comprehensive, then Congress would only be needed for 30 days a year to set the military budget (now, if that were the case, I might gladly concede the point!) But as you point out, the direction of laws is determined by who wins elections because there is a great deal of ambiguity in the details.
As such, I am willing to cede this issue to elected (federal) politicians who will enact laws as I agree with them. So far, I'm in the majority. That may change, at which time I'll be in the minority.
I don't think that narcotics are an issue that can be adequately addressed at the state level. Unlike, say, prostitution where I disagree but am willing to let states decide because one state permissiveness does not unduly impact another state, I don't think that's the case with drugs. (Terrible sentance, but you get the drift.)
Yes, I will agree that the Federal gov't has overstepped its Constitutional boundaries in many areas. This one area (in my view one not outside Constitional limits) where I believe the Feds do have a positive role.
Posted by: Boulder Refugee at May 18, 2009 11:31 AMBTW, you artfully dodged my question regarding immigration control as a federal or state issue. As penance, you must now answer that one plus one more: is gay marraige a federal or state issue?
Posted by: Boulder Refugee at May 18, 2009 11:39 AMSomething is either provided for in the Constitution or is not. I cannot lay my finger on the "pot is fine but heroin is bad" clause.
I said that Federal regulation and enforcement of immigration was certainly supported by the 14th Amendment and perhaps deeper and more clearly elsewhere. Therefore, I am fine with Federal immigration policy. I wish it did not suck so bad, but it is clearly Constitutional.
As for the bonus question: I'd like to get all government out of the marryin' bizness, but I suppose there's fat chance of that. Ergo, I will go with "State Issue" but concede that the Full Faith and Credit Clause would likely drive it to be a Federal issue. Thus, your 555 legislators, justices and executive will have something to do with the other 335 days after all.
Posted by: jk at May 18, 2009 12:36 PMI'll put in my two sou's worth...
I'd tend to agree that immigration is, and should be, a Federal issue. I believe this to be Constitutionally supportable, as part of the national defense portion of the Federal government's rightful duties. The alternative would be me having to cross the Neutral Zone and a border fenced with concertina wire every time I visit Las Vegas because of Nevada deciding to protect themselves from all us dang Californians.
In a practical sense, immigration has to be a Federal issue, because we allow interstate travel to be conducted freely. It would make no sense, otherwise, if Texas had a very strict immigration enforcement policy and New Mexico's were lax, there would be no defense from "persons of undocumented status" entering New Mexico and then driving into Texas.
I'm going to really tread on dangerous ground and take on the issue of homosexual marriage as well. I have no doubts that you've guessed my stance on homosexual marriage, but I hope some of you would be surprised I'm opposed to a Constitutional amendment banning it, which many people like me support. My reasoning is that the Constitution is a document laying out how our Federal government is, well, constituted. Of course, I use the same reasoning to say that the Prohibition amendment did not belong in the Constitution at all. Opponents of homosexual marriage should understand that if they want a Federal ban, fidelity to the Constitution requires that the correct course would be legislation banning it, and then Congress exercising its power under Article III, Section 2 to remove the subject from the jurisdiction of the courts. Such legislation could be as simple as "The Federal government shall recognize no marriage save that between one unencumbered man and one unemcumbered woman for any purpose, nor shall any State be required to recognize any such marriage authorized by any other State." People forget that Congress has already removed the Defense of Marriage Act from the courts' jurisdiction by that very same power.
Posted by: Keith at May 18, 2009 12:58 PMDoes johngalt need to take urgent action to excise the notion of "majority rule" from the cerebelum of BR?
Drug regulation - to the extent there is any - can and should be a state issue. The notion of FDA regulation of 'Cheerios' over its cholesterol reduction claim is more evidence of what a failure federal regulation is.
Posted by: johngalt at May 18, 2009 1:28 PMJG, if you are volunteering to excise wrong-thinking from The Refugee's head, by all means, let me give you a list...
JK, as long as we're in a finger-layin' mood, pray lay your finger on the language in the 14th Amendment (or anywhere else in the Constitution,) that gives Congress explicit authority to control cross-border immigration.
It is interesting to note that JK, Keith and The Refugee all agree that immigration is a Federal issue - and all justified it by different sections of the Constitution. Thus, The Refugee would humbly suggest that the line is not quite as bright-white as some in these parts suggest. In all cases, we frankly shoe-horned it in based on our own individual interpretation of the language of the Constitution. Which is what everyone does when they agree with something. That's why elections, which lead to judicial appointments, matter so much. The Constitution must be interpreted.
Keith, I will disagree that gay marraige can be an issue for the states to decide. A marraige is a legal contract and, under the Commerce clause, must be valid in all 50 states or invalid in all 50. To have a couple with a binding contract in Vermont abbrogated by crossing over into Utah is not a workable system. I would agree, however, that it belong in statute, not the Constitution. Once it is recognized by law to be a legal contract, Congress cannot then arbitrarilly negate the contract. Unless, of course, they succeed in doing so to Chrysler bond-holders, but that's another argument.
Posted by: Boulder Refugee at May 18, 2009 3:52 PMWhere do you find "no narcotics except for pot?"
Posted by: jk at May 18, 2009 4:36 PMTo my reading, this clause defines who is a citizen and applies equal protection to all citizens. It was enacted because southern states refused to grant full citizenship and the rights thereof to blacks. It does not mention which non-citizens get to enter the country and under what conditions they may do so. In fact, I see no mention of immigration or border enforcement.
Surely you're not suggesting that states should be able to determine who is and who is not a United States citizen?
Posted by: Boulder Refugee at May 18, 2009 4:49 PMBy defining what a citizen is (a national citizen) the Feds clearly have arole in granting or denying its license.
I'm not a fan of the 14th, br. President Lincoln had Federal troops stationed in some Southern States and ratification was clearly coerced. The idea of US Citizenship really begins in the 14th. I'm suggesting that states offer State citizenship.
Posted by: jk at May 18, 2009 5:20 PMMy father-in-law would love you. He despises Lincoln and the 14th Amendement. We've had many a fine debate. He's a big-L Libertarian, but smart enough to vote Republican as a matter of practicality.
I am generally a fan of the 14th Amendment, because I find it unlikely that the Southern states would have granted anything close to liberty for blacks. And, it's not OK to abbrogate (lovin' that word today) individual liberty in the name of State's Rights. I will concede, however, that "equal protection" has been used and abused as elastically has "general welfare."
Posted by: Boulder Refugee at May 18, 2009 5:42 PMI agree that it was required and that the southern states lost some authority to object. But I dislike the Federal power grab -- why not have an amendment that says the government will enforce equality of state citizenship?
Posted by: jk at May 18, 2009 6:23 PMNot clear how the notion of "state citizenship" would work. Does that mean that I can be a citizen of Colorado without being a citizen of the US? Moreover, I thought impetus of the Constitution, and the Bill of Rights in particular, was to assure that no government could usurp the "inalienable rights endowed by our Creator." Does that not apply to US citizens, not "state" citizens?
Posted by: Boulder Refugee at May 18, 2009 7:29 PMThis thread grew too fast before I could jump in before now, but here are a few things.
1. There's actually no Constitutional power over immigration, which was supposed to be free. Congress did have, under Article I, Section 8, to pass laws regarding naturalization. The two are extremely different. Even after the 14th Amendment was ratified, immigration was extremely free.
Conservatives can foam at the mouth about open borders, but in a proper world where there's hardly any government and public property, immigration becomes a matter of people trespassing on your private land. That means you can detain them, and shoot them if necessary.
2. JK is correct. "I'm not a fan of the 14th, br. President Lincoln had Federal troops stationed in some Southern States and ratification was clearly coerced. The idea of US Citizenship really begins in the 14th. I'm suggesting that states offer State citizenship."
The idea of federal citizenship for state citizens did not exist until 1868. Until then, you were a federal citizen only if you resided in a federal territory, e.g. the District of Columbia, and the pre-state Oklahoma and Utah territories.
Patrick Henry said unequivocally that "I am an American," but he meant it to disclaim being under the British Crown's authority. He was saying he wasn't an Englishman, not that he said he was a citizen of all states under the Continental Congress.
And yes, the 14th Amendment was forcibly ratified. If anyone doubts that, read your history: the Southern states' legislatures were occupied by the northern military once they refused to ratify.
3. "I find it unlikely that the Southern states would have granted anything close to liberty for blacks." BR, there you go again with the fallacial positive notion of liberty. Proper government can grant no rights.
For this reason, it doesn't matter if you're a citizen of a state or a federal territory. Your rights simply cannot be infringed by any government, federal, state or local.
Posted by: Perry Eidelbus at May 18, 2009 11:46 PMVery good comments, PE, and I will accept your admonition that governments cannot grant rights and liberty that are inherent. However, they sure as hell can inhibit, infringe and usurp those rights. I find it unlikely that (most) Southern states would have restored those inherent right to black citizens without the 14th Amendment and the point of a gun.
Posted by: Boulder Refugee at May 19, 2009 5:33 PM | What do you think? [23]