Mandatory minimums a smoke screen

Lost in the debate over Terri Schiavo and the filibuster - two less harmful examples of the new GOP judicial obsession - is Congress' latest push to do an end-around a recent Supreme Court ruling that found the draconian sentencing guidelines imposed during the crime and drug war hysteria of the 1980s unconstitutional. One of those new creates a stricter definition of "gang crime," allowing alleged gang defendants to be federally prosecuted. Another imposes insanely harsh sentences for a variety of low-level drug crimes, even though alcohol and cigarettes still kill far more people each year in America - legally.

Both bills have drawn fierce opposition from human rights, religious and civil rights groups, and are vehemently opposed by the American Bar Association. But in their zeal to bang the old "tough on crime" drum, the GOP rages forward, undaunted and oblivious to the obvious hypocrisy.

For example, even as states across the nation, not to mention Great Britain, Canada and Russia, move toward decriminalization of small amounts of cannabis, the proposed new law requires anyone convicted in federal court of passing a joint to someone who ever set foot in drug treatment to prison for a minimum of five years - 10 years for a second offense.

Meanwhile, the average time served by convicted rapists in America is about seven years.

What's more, despite its obsession with low-level drug offenders of all stripes, Congress has done nothing to reverse the sentencing disparity for possession of crack - a scourge disproportionately found in black communities. Federal sentences for crack defendants remain far harsher than those for powder cocaine, a drug of choice favored by white America, including lawyers and Wall Street types with money to blow.

The Congressional push comes amid news last week of a dramatic shift over the past decade in U.S. drug policy from the most dangerous substances - cocaine and heroin - to the least harmful, diverting precious resources away from the prosecution of violent and white-collar crime.

That has contributed to a U.S. prison population that has swelled to 2.1 million, placing the U.S. far ahead of communist China in putting its people behind bars. We and USA Today, along with a growing number of conservatives and liberals alike, agree that all drugs use should be discouraged by a healthy society. Period. Big-time dealers of heroin, opiates, cocaine and methamphetamine, should be prosecuted to the full extent of the law, and users sentenced to treatment.

"But it's a smoke screen to suggest that rising arrest numbers (of low-level offenders) show the war on drugs is working," writes USA Today, in a May 17 editorial. "It's time for a serious debate on whether massive arrests of low-level users are worth the cost or having any benefit."

Ronald Reagan sold the nation on a "drug war" targeting cocaine cartels and hard drugs in crime-infested inner cities. Now it's a self-perpetuating and profitable de facto war against the nation's young people - rural, urban and in between.

It is the insanity of putting more and more Americans in prison for low-level drug crimes - leaving millions of broken families, newly dependent on government handouts, behind.

Assuming the Court's current lineup, I would stick with stare decisis as to Wickard

Stop the tape. In post #53 you wrote:

"The expansive view of the Constitution that underlies the New Deal is contrary to original intent,"

Then in post #97 you wrote:

I would vote as an originalist if I were on the Court.

My point is very simple. You are telling us you would vote for Wickard, and you admitted that Wickard was contrary to original intent. You are contradicting your own claim that you would vote as an originalist.

That is why I say your claim to hold originalism as a core belief is not very credible.

Stare decisis refers to the principle that prior case law decisions and their rationales should usually be followed instead of being ever open to being reversed or revised. Why should this be? Because stability in the law helps assure predictability and allows parties to make decisions with some confidence that courts will not later tell them they chose wrong. The very concept of law implies this.

The Code of Hammurabi was the first civil law, being a publicly posted compilation of the penalties that the king imposed for various wrongs on past occasions. Implicitly, the king was notifying and promising his subjects that someone brought before him would be treated in a similar manner. To do otherwise without good reason would be a breach of faith and reveal the king as a promise-breaker.

There are times and cases when courts expressly reverse themselves, but they are far more rare than the public usually thinks. The approach I outlined would go about as far as an originalist could hope.

I see the whole 'war' as a menace to our Republic. You do not?

No, the war on drugs is not a menace to the Republic. ---
--- Stoner persecution fantasies have not materialized.

"Stoners" are not the point here, -- unconstitutional 'laws' prohibiting/criminalizing non violent behaviors are at issue.
Let's be sensible & treat the abuse of ALL mind altering substances in a constitutional manner, as we did for a short period after the repeal of prohibition.

--- are you back to a radical libertarianism that insists that drugs should be legal like alcohol -- yet unlike alcohol, that the adverse effects of drug use and addiction should incur no penalties?

I'm for 'radical' Constitutionalism. You seem to be for radical communitarian-ism. Can you say it isn't so?

You seem to miss the point of my prior explanations: the drug and alcohol testing and treatment mechanisms I describe are the alternative to jail, prison, and other sanctions, are already in effect, and have been held constitutional.

You are determined to avoid the point that the WOD's is unconstitutional, and that the 'sanctions' you claim are legal are further infringements on individual rights.

Better testing and treatment would improve the effectiveness of those programs but not change their legal character. The genetic tests that I refer to would likely be restricted to that context or otherwise voluntary. Addiction propensity genetic tests for general screening purposes will probably be on the same basis as most all such testing: voluntary and protected by medical confidentiality.

The road to hell is paved with the 'good intentions' of prohibitionists.

What "original intent" constitutional argument do you have in mind on federalism grounds when the governing anti-drug law and authority is state, not federal?

What constitutional "authority" do you claim gives either Fed or State governments the power to decree prohibitions? - None exists, as the 18th Amendment makes evident.

Moreover, application of "original intent" would undo the basis for the Warren Court decisions that are essential to current search and seizure, due process, equal protection, and other claims essential to drug defendants. Original intent would even place the doctrine of incorporation of the Bill of Rights into doubt.

It's not surprising that you are among those who think our BOR's needs "incorporation". Try reading Art VI sometime, and imagine that our Constitution/BOR's being the supreme "law of the land" means what it says.

You project that the net effect of consistent originalism may be to undo the federal drug laws as to medical marijuana and roll back the New Deal.

I'm 'projecting' that? Get real.

Yet consistent originalism would also undo the constitutional decisions that have permitted the drug trade to flourish.

Weird comment. Can you explain its irrationality?

OK, have it your way and let's jump into that brier patch. I expect that I would find it more congenial than you will: a return to pre-New Deal limited government, vastly lower taxes and spending, and more effective criminal prosecutions with greatly limited rights for defendants. And having no interest in drugs, I won't miss them.

Dream on that defendants had greatly limited rights prior to the "new deal". -- Or that anyone here has an "interest in drugs". -- We are here discussing how the unconstitutional aspects of the drug war are ruining the republic, and you prattle on about "stoners".. Typical agitprop.

I think Scalia's position is credible and makes sense, and I see my views as congruent with his and Thomas's.

You may see your views as congruent with Thomas, but Scalia himself says otherwise:

Thomas and Scalia diverge over one of the most basic issues of judicial philosophy - the issue of stare decisis.

~snip~

Thomas, Scalia commented, "doesn't believe in stare decisis, period." If Thomas thinks a decision is wrong, that's the end of the analysis; it should be overturned. "I wouldn't do that," Scalia continued.

http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/lazarus/20050106.html

So, contrary to what you claim, your views on originalism and stare decisis are not congruent with Mr. Justice Thomas.

Scalia's comment is a simplification of Thomas's approach and its consequences in application.

Thomas does not reject stare decisis, even though he is well known to have less regard for it than any other member of the Court. In application, Scalia and Thomas commonly are on the same side, but Thomas often writes opinions arguing for a return to the decisions and principles of earlier constitutional case law.

Here is an example:

UNITED STATES v. LOPEZ (1995)

(Excerpt from concurring opinion by Thomas):

* * *

These cases all establish a simple point: from the time of the ratification of the Constitution to the mid-1930's, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause. 7 Moreover, there was no question [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 18] that activities wholly separated from business, such as gun possession, were beyond the reach of the commerce power. If anything, the "wrong turn" was the Court's dramatic departure in the 1930's from a century and a half of precedent.

* * *

This extended discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions. 8 It simply reveals that our substantial effects test is far removed from both the Constitution and from our early case law and that the Court's opinion should not be viewed as "radical" or another "wrong turn" that must be corrected in the future. 9 [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 20] The analysis also suggests that we ought to temper our Commerce Clause jurisprudence.

[ Footnote 8 ] Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.

Note that Thomas neither rejects nor applies stare decisis and recognizes its validity in concept. That is different than Scalia's formulation, which may be taken as a simplification appropriate to a speech. Lest Thomas be thought aberrant, the Warren Court had little regard for stare decisis, and Thurgood Marshall perhaps least of all.

So, contrary to what you claim, your views on originalism and stare decisis are not congruent with Mr. Justice Thomas.
106 Ken H

______________________________________

Rockingham replies:

Thomas does not reject stare decisis, even though he is well known to have less regard for it than any other member of the Court.

These cases all establish a simple point: from the time of the ratification of the Constitution to the mid-1930's, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause.

Moreover, there was no question that activities wholly separated from business, such as gun possession, were beyond the reach of the commerce power. If anything, the "wrong turn" was the Court's dramatic departure in the 1930's from a century and a half of precedent.

Odd answer. -- You appear to agree with Thomas that the court took a "wrong turn" in the '30s, -- yet you continue to support one of the results of that wrong turn, our current 'war on drugs'.

Do you ever slow down enough to question yourself about the contradictions in your positions?

EXCESSIVE ALCOHOL USE IS FAIRLY OBVIOUS, BUT DRUG USE OFTEN HAS ONLY INAPPARENT SIGNS

If it's "inapparent" then it's of negligible concern as far as operating machinery etc.

DUE TO THE GREATER PHYSICAL HARM AND TENDENCY TOWARD ADDICTION FROM ILLEGAL RECREATIONAL DRUGS, THE CASE FOR PROHIBITION IS FAR STRONGER THAN WITH ALCOHOL

Alcohol is quite harmful to the liver and brain, and is as addictive as cocaine and much more so than marijuana.

MEANINGFUL INDIVIDUAL LIBERTY REQUIRES ORDER AND RESTRAINT [...] EXTERNALLY FROM LAWS

Liberty is reduced by the external restraint of laws that go beyond protecting the rights of others.

Stare decisis and reliance interests can be said to contradict all interpretative doctrines in that stare decisis urges against constant changes in case law. Yet even Justice Thomas, who has minimal regard for stare decisis, does not repudiate it. Here is Justice Thomas's view of stare decisis from Lopez, already cited above:

"Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean."

In close cases -- and almost all important cases are close cases -- legal principles conflict and have to be evaluated and reconciled in some fashion. Lawyers, judges, and law professors spend their lives learning how to do that and arguing over the results.

Sometimes, stare decisis and reliance interests control because a court cannot come up with anything better as a basis for decision. Often, an old flawed case law rule is preferable to a new one that may be better in the abstract but causes confusion and uncertainty in application and has flaws yet to be discovered. No one will like the results in all instances, but stare decisis and reliance doctrine are Burkean in their regard for history and prescription and preference against constant innovation based on abstract reasoning.

What you see as "contradiction" is part of how the law works. Take a look at the following case and the opinions in it for an illuminating and accessible example about anonymous political speech:

McIntyre v. Ohio Elections Comm'n (93-986), 514 U.S. 334 (1995)

http://straylight.law.cornell.edu/supct/html/93-986.ZO.html

Note that Scalia and Thomas ended up on opposite sides. When I first read the case, I was stunned. By their own declared and sincerely held originalist principles, Thomas got it right and Scalia got it wrong; and several years ago, I heard Scalia say as much in a speech.

Here is the conclusion of Thomas's opinion:

"While, like Justice Scalia, I am loath to overturn a century of practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition. When interpreting other provisions of the Constitution, this Court has believed itself bound by the text of the Constitution and by the intent of those who drafted and ratified it. It should hold itself to no less a standard when interpreting the Speech and Press Clauses. After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion. Because the majority has adopted an analysis that is largely unconnected to the Constitution's text and history, I concur only in the judgment."

For all of Scalia's relatively greater preference for stare decisis and reliance interests in comparison to Thomas, in retrospect, Scalia apparently wishes that he had joined Thomas in McIntyre; and I am sure that there are cases in which Thomas wishes that he had held to stare decisis. Contradictions? No, just a recognition that even for the best judges operating on the soundest principles, legal reasoning and results are not automatic and certain.

I am sure that there are cases in which Thomas voted for stare decisis. After all, there are precedents that he likes and regards as sound.

Dissents on the Warren court often invoked stare decisis. On the winning side, Thurgood Marshall was often to be found against adhering to stare decisis.

On the particulars, if the controlling precedents favor a conservative result, stare decisis is our ally. When precedents are against us, stare decisis is our adversary. When cases decided today have outcomes and reasoning that we like, stare decisis again becomes our ally because it urges that those cases be applied to decide future controversies.

Moreover, apart from any particular case, stare decisis is a conservative principle in its reasoning and effects. (See my post 107, above). Stare decisis requires courts and constitutions to sail with full ballast and enough keel not to be constantly blown off course or wrecked in storms raised by ideology and windy abstractions.

Of course, if scoundrels and fools are at the helm, even a properly ballasted and keeled ship can be wrecked -- which is what the New Deal and its judicial accomplices did to the Constitution. I hope to see it pulled off the rocks and repaired -- including the ballast and well-made keel afforded by stare decisis.

I am sure that there are cases in which Thomas voted for stare decisis. After all, there are precedents that he likes and regards as sound.

That was not what I was asking. My question was whether Mr. Justice Thomas has ever voted for stare decisis over original intent. Has he?

Dissents on the Warren court often invoked stare decisis. On the winning side, Thurgood Marshall was often to be found against adhering to stare decisis.

In those cases, was Marshall reasoning against stare decisis, and for original intent?

On the particulars, if the controlling precedents favor a conservative result, stare decisis is our ally. When precedents are against us, stare decisis is our adversary. When cases decided today have outcomes and reasoning that we like, stare decisis again becomes our ally because it urges that those cases be applied to decide future controversies.

Sounds like unprincipled opportunism to me. I'd much rather have an honorable justice who makes honest arguments, and believes in original intent.

Moreover, apart from any particular case, stare decisis is a conservative principle in its reasoning and effects.

Rubbish. When original intent is rejected, stare decisis just becomes squatter's rights for bad SC decisions.

Of course, if scoundrels and fools are at the helm, even a properly ballasted and keeled ship can be wrecked -- which is what the New Deal and its judicial accomplices did to the Constitution. I hope to see it pulled off the rocks and repaired -- including the ballast and well-made keel afforded by stare decisis.

And in the Raich case, you would vote on the side of the scoundrels and fools who gave us Wickard.

"I would stick with stare decisis as to Wickard but question the soundness of the original decision and rationale."

The decision was narrowly tailored around the Agricultural Adjustment Act. What's to question?

Without that ruling, the AAA would have been rendered meaningless. Was that the intent of the Founders -- that individuals or states retain the power to undermine and subvert federal laws?

Now, one may be against federal subsidies and federal price controls. But that is no justification to side against the decision in Wickard.

"Plausibly, a state system providing for strictly controlled intrastate medical use of marijuana might be constitutionally protected on federalism grounds."

IF smoked marijuana were deemed to have medical use. Which it does not.

And if it did have medical use, why do you propose that we handle it differently than every other drug? Why the exception? Unless, of course, you're saying that the FDA should be eliminated and that their function should be handled by the states.

A car crash or workplace accident is often the first indication of alcohol or drugs.

Which brings us right back to my point that routine intrusive drug testing is no more required than routine intrusive alcohol testing.

In practice, cops on the street find it easier to detect alcohol use than marijuana use.

Probably because the drinkers are more impaired; my point stands.

(2) Alcohol is quite harmful to the liver and brain, and is as addictive as cocaine and much more so than marijuana.

That old canard? It is not true

Which "canard"? The addictivity statement is supported by science (cf. Anthony JC, Warner LA, Kessler RC. 1994. Comparative epidemiology of dependence on tobacco, alcohol, controlled substances, and inhalants: Basic findings from the National Comorbidity Survey. Experimental and Clinical Psychopharmacology 2:244-268) ... as are the harms of alcohol if you're genuinely ignorant of them.

and would not be an argument for marijuana and cocaine legalization even if it were.

Then why did you bring up your (false) claim about the "GREATER PHYSICAL HARM AND TENDENCY TOWARD ADDICTION FROM ILLEGAL RECREATIONAL DRUGS"?

MEANINGFUL INDIVIDUAL LIBERTY REQUIRES ORDER AND RESTRAINT [...] EXTERNALLY FROM LAWS

Liberty is reduced by the external restraint of laws that go beyond protecting the rights of others.

And that gassy generalization is supposed to have any bearing on drug legalization?

No gassier or less relevant than your generalization to which I was responding.

Rockingham agrees with Thomas: "Moreover, there was no question that activities wholly separated from business, such as gun possession, were beyond the reach of the commerce power. If anything, the "wrong turn" was the Court's dramatic departure in the 1930's from a century and a half of precedent."

Odd answer. -- You appear to agree with Thomas that the court took a "wrong turn" in the '30s, -- yet you continue to support one of the results of that wrong turn, our current 'war on drugs'.

Do you ever slow down enough to question yourself about the contradictions in your positions?

Stare decisis and reliance interests can be said to contradict all interpretative doctrines in that stare decisis urges against constant changes in case law. Yet even Justice Thomas, who has minimal regard for stare decisis, does not repudiate it. Here is Justice Thomas's view of stare decisis from Lopez, already cited above: "Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean." In close cases -- and almost all important cases are close cases -- legal principles conflict and have to be evaluated and reconciled in some fashion. Lawyers, judges, and law professors spend their lives learning how to do that and arguing over the results. Sometimes, stare decisis and reliance interests control because a court cannot come up with anything better as a basis for decision. Often, an old flawed case law rule is preferable to a new one that may be better in the abstract but causes confusion and uncertainty in application and has flaws yet to be discovered. No one will like the results in all instances, but stare decisis and reliance doctrine are Burkean in their regard for history and prescription and preference against constant innovation based on abstract reasoning. What you see as "contradiction" is part of how the law works. Take a look at the following case and the opinions in it for an illuminating and accessible example about anonymous political speech: McIntyre v. Ohio Elections Comm'n (93-986), 514 U.S. 334 (1995) http://straylight.law.cornell.edu/supct/html/93-986.ZO.html Note that Scalia and Thomas ended up on opposite sides. When I first read the case, I was stunned. By their own declared and sincerely held originalist principles, Thomas got it right and Scalia got it wrong; and several years ago, I heard Scalia say as much in a speech. Here is the conclusion of Thomas's opinion: "While, like Justice Scalia, I am loath to overturn a century of practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition. When interpreting other provisions of the Constitution, this Court has believed itself bound by the text of the Constitution and by the intent of those who drafted and ratified it. It should hold itself to no less a standard when interpreting the Speech and Press Clauses. After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion. Because the majority has adopted an analysis that is largely unconnected to the Constitution's text and history, I concur only in the judgment." For all of Scalia's relatively greater preference for stare decisis and reliance interests in comparison to Thomas, in retrospect, Scalia apparently wishes that he had joined Thomas in McIntyre; and I am sure that there are cases in which Thomas wishes that he had held to stare decisis. Contradictions? No, just a recognition that even for the best judges operating on the soundest principles, legal reasoning and results are not automatic and certain.

Thank you for once again demonstrating your complete inability to answer questions on the issues at hand.

It's amusing to wonder who you think you are fooling..
Do you realize that even robertpaulsen is questioning your veracity?

Drugs have no attraction for me, and this thread is the first time in quite a few years that I have discussed drug legalization with anyone.

If you have a more plausible scenario than mine for restoring original intent as controlling constitutional doctrine, and for a return to the original federal system and a federal government pruned back to pre-New Deal scope, I would like to hear it.
92 Rockingham

______________________________________

Note that they wish a return to "original intent" starting with drugs.
In the past 70 years, we've piled up quite a few social programs which also go against the concept of original intent -- I say eliminate the nanny state before we even think about legalization.
116 paulsen

Note that even after being given restoration scenarios, rockingham supports, as do you, the socialistic prohibition/criminalization schemes of the nanny state.

You two support the concepts that have allowed our current 'social programs' to pile up.

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