Posted on 04/04/2010 6:51:11 AM PDT by rabscuttle385
An article by a conservative named Cliff Kincaid, who serves as editor of the Accuracy in Media (AIM) Report, provides a perfect example of how different libertarians are from conservatives and, well, for that matter, how there ain't a dime's worth of difference, when it comes to individual freedom, between conservatives and liberals.
The article concerns the drug war and is entitled, "Dopey Conservatives for Dope." Ardently defending the continuation of the drug war, despite some 35 years of manifest failure, Kincaid takes fellow conservatives to task who are finally joining libertarians in calling for an end to the drug war. He specifically mentions columnist Steve Chapman, whose article "In the Drug War, Drugs are Winning," which was posted on the website of the conservative website Townhall.com, was apparently what set Kincaid off.
Chapman made the point that it is the illegality of drugs that has produced the drug gangs and cartels, along with all the violence that has come with them. The reason that such gangs and cartels fear legalization is that they know that legalization would put them out of business immediately.
Consider alcohol. Today, there are thousands of liquor suppliers selling alcohol to consumers notwithstanding the fact that liquor might be considered harmful to people. They have aggressive advertising and marketing campaigns and are doing their best to maximize profits by providing a product that consumers wish to buy. Their competitive efforts to expand market share are entirely peaceful.
Now, suppose liquor production or distribution was made a federal felony offense, just like drug production or distribution. At that point, all the established liquor businesses would go out of business.
However, prohibition wouldn't mean that liquor would cease being produced or distributed. It would simply mean that a new type of supplier would immediately enter the black (i.e., illegal) market to fill the void. Those suppliers would be similar in nature to the current suppliers in the drug business or, say, Al Capone -- that is, unsavory people who have no reservations about resorting to violence, such as murdering competitors and killing law-enforcement officers, to expand market share.
At that point, the only way to put these Al Capone-type of people out of business would be by legalizing booze. Once prohibition of alcohol was ended, the violent liquor gangs would immediately go out of business and legitimate businesses would return to the liquor market. The same holds true for drug prohibition.
The big objection to the drug war, however, is not its manifest failure and destructiveness but rather its fundamental assault on individual freedom. If a person isn't free to ingest any substance he wants, then how can he possibly be considered free?
Yet, for decades Kincaid and most other conservatives and most liberals have taken the audacious position that the state should wield the power to punish a person for doing bad things to himself. In fact, the drug war reflects perfectly the nanny-state mindset that has long afflicted both conservatives and liberals. They feel that the state should be a nanny for American adults, treating them like little children, sending them to their jail cell when they put bad things in their mouths.
Kincaid justifies his statism by saying that drugs are bad for people. Even if that's true -- and people should be free to decide that for themselves, as they do with liquor -- so what? Why should that be any business of the state? If I wish to do bad things to myself, why should the likes of Barack Obama, Nancy Pelosi, George W. Bush, and John McCain wield the power to put me into jail for that?
Quite simply, Kincaid: It ain't any of your business or anyone else's business what I ingest, whether it's booze, drugs, candy, or anything else. I am not a drone in your collective bee hive. I am an individual with the natural, God-given right to live my life any way I choose, so long as my conduct doesn't involve the initiation of force against others.
For decades, conservatives and liberals have been using the drug war as an excuse to assault freedom, free enterprise, privacy, private property, civil liberties, and the Constitution. They have brought nothing but death, violence, destruction, and misery with their 35-year old failed war on drugs. There would be no better place to start dismantling the statism that afflicts our land than by ending the drug war.
Jacob Hornberger is founder and president of The Future of Freedom Foundation.
Scalia put lipstick on a pig.
You say it's got lipstick.
I say it's a pig.
My question was not meant in a hostile fashion. What readings led to your views on stare decisis?
You've already been given the example of US v Darby.
I surmise that somewhere you got support for the notion that stare decisis was wrong, wrong, wrong. I am curious where. As far as I am aware -- and I invite correction -- there is no such adamant hostility to stare decisis in conservative legal scholarship.
It's a pig.
None is an acceptable answer. I am genuinely curious -- and I want to make sure that I have not missed a line of conservative legal scholarship on stare decisis.
Years ago, I took a class from a well-regarded conservative law professor (James Willard Hearst) who explained the New Deal jurisprudence as partly contrived by a change in the Court's standard of review and in their treatment of the record before them. As a researcher for Frankfurter and later a clerk to Brandeis, Hearst understood the Court's New Deal history with an insider's perspective.
Sure enough, on examination, Hearst's analysis was correct. The accommodating "rational basis" standard for review of statutes establishing economic regulations began in the New Deal era well before it was established as a doctrine. There were also careful references in the opinions to "the record before the court," to emphasize that a different record could produce a different result.
Even while the Court was gingerly laying out a new course, it was ready to retreat to older doctrines if election results turned the New Deal out of power. Alas, that was not to be.
That doesn’t explain why you find no fault in their failure to respect stare decisis in your assesment of those decisions.
Stare decisis is not a straight jacket, and is of diminished force as to constitutional issues.
That doesn't explain why you find no fault in their failure to respect stare decisis in your assesment of their decisions.
You are much concerned with my respect for stare decisis and curiously indifferent to theirs.
And after the departures from stare decisis are criticized, what then? The larger issue is the substantive law. The “rational basis” standard is too accommodating to economic regulation, and there is an argument to be made for “liberty of contract” as an unenumerated due process right under the 14th Amendment.
Then we discuss why we should embrace constituional law based on flawed interpretation and methodology.
Despite strong views, it is not clear that you bring any legal scholarship to the effort.
If you want to try and make it an exercise reserved to the laywers that ordinary citizens are to be excluded from, then good luck with that. I expect you'll find no sympathy here.
Knowledge is the price of admission to a serious discussion. One need not have a law degree, but one must know the subject.
You've apparently set yourself up as the gatekeeper. On what authority?
Indeed.
And I'm having reservations about your credibility.
My history and law degrees are such a handicap.
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