Deference to Congress and Boumediene
rosentha at chapman.edu
Tue Jun 17 18:58:01 PDT 2008
1. If drugs were legalized, perhaps we could begin to talk about informed consent. But given that they are illegal, no warnings are given about the hazards of taking drugs, and a big part of the market includes minors who are highly unlikely to be able to assess in a sober and mature fashion the hazards of ingesting an unregulated and highly addictive substance, I am perfectly willing to consider those who sell drugs violent offenders in the same manner as any other poisoning would generally be considered a violent offense. The fact that the poison is enjoyable addictive, making it especially difficult to assess its risks, seems to me to merely aggravate the offense.
2. If the federal government were limited to funding state and local antidrug efforts, we would have endless political debates about whether federal funding was adequate and whether state and local governments were using the funds effectively. Under Gonzales v. Raich, the federal government is fully politically acccountable for its failure to secure the borders, as it should be. Diffusing federal accountability by limiting it to the provision of antidrug grants, once again, seem to me to be an odd theory of federalism.
3. For nice middle class white people, the benefits of legalizing drugs probably do outweigh the costs. For impoverished communities, the calculus is rather different. It is no coincidence that African Americans oppose legalization at higher rates than whites. In any event, I had thought that we ordinarily leave debates over the costs and benefits of legalizing potentially dangerous substances to majoritarian institutions. When it comes to whether the privilege of habeas corpus has been unconstitutionally suspended, not so much. The Constitution forbids suspension (except in specified circumstances that the government did not contend apply in Guantanamo) no matter what the costs and benefits.
Chapman University School of Law
From: conlawprof-bounces at lists.ucla.edu on behalf of Ilya Somin
Sent: Tue 6/17/2008 6:32 PM
To: Rosenthal, Lawrence
Cc: Conlawprof at lists.ucla.edu
Subject: Re: RE: RE: Deference to Congress and Boumediene
If people take poison voluntarily and in full knowledge of its dangerous effects, there is no violence involved on the part of those who gave or sold them that poison. More fundamentally, there are many activities - including drinking alcohol, smoking, downhill skiing, bungee jumping, etc. - where people willingly accept risks to their health in order to obtain some other benefit, such as pleasure or thrills. We can argue about whether the law should allow them to take such risks (I think it should). But the people who market and sell these activities are not "violent" in any ordinarily understood sense of the word.
I won't go into detail on the issue of states "bearing the costs" of the federal government's supposed failure to close the borders. But I would note 3 points:
1. The feds could compensate those costs by subsidizing the states, without breaching the limits of their Commerce Clause power.
2. Many of us think that the costs of drug prohibition outweigh the benefits, whether enacted by the states or the feds.
3. The claim assumes that closing the borders to illegal drugs is in fact possible without the kinds of draconian enforcement policies that would violate many other constitutional and moral values. I highly doubt that it it is, though I won't argue the point in detail here.
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
e-mail: isomin at gmu.edu
SSRN Page: http://ssrn.com/author=333339
----- Original Message -----
From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
Date: Tuesday, June 17, 2008 9:11 pm
Subject: RE: RE: Deference to Congress and Boumediene
> A small correction to Ilya Somin's post on "nonviolent" drug
> offenders: Most drugs that are sold illegally in this country are
> highly toxic and highly addictive. I don't normally think of
> those who sell poison -- even highly seductive poison -- as a
> class of nonviolent offenders, but perhaps my view is
> idiosyncratic. In addition, most drugs sold in this country were
> originally imported from abroad, including virtually all heroin
> and cocaine. I have always thought it a strange view of
> federalism to say that when the federal government fails to secure
> the borders against dangerous drugs, the Constitution obligates
> the states alone to bear the resulting costs. I know that a lot
> of law professors seem to take that view of federalism, but not
> many state and local officials (or voters) do.
> Larry Rosenthal
> Chapman University School of Law
> From: conlawprof-bounces at lists.ucla.edu on behalf of Ilya Somin
> Sent: Tue 6/17/2008 5:52 PM
> To: Ilya Somin
> Cc: Conlawprof at lists.ucla.edu
> Subject: Re: RE: Deference to Congress and Boumediene
> A small correction:
> Morrison involved a civil suit, not a criminal case. However,
> Lopez and Raich did involve criminal law.
> Even more significantly, a more restrictive interpretation of the
> Commerce Clause could invalidate much of the federal War on Drugs.
> And some 55% of all inmates in federal prisons are nonviolent drug
> offenders. Before the New Deal expansion of the Commerce Clause,
> most jurists believed that the Commerce Clause alone could not
> justify a federal ban on the mere sale or possession of goods,
> which is why Prohibition required the enactment of a
> constitutional amendment. The massive expansion of federal power
> that arose from the loose post-New Deal construction of the
> Commerce Clause has deprived far more people of their liberties
> (and, in my view, with far less cause) than anything that has
> happened during the War on Terror.
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
> ----- Original Message -----
> From: Ilya Somin <isomin at gmu.edu>
> Date: Tuesday, June 17, 2008 8:42 pm
> Subject: Re: RE: Deference to Congress and Boumediene
> > Obviously, people's liberties were in fact at stake in Morrison,
> > Lopez, and Raich, since in all these cases people were accused of
> > crimes that they could go to prison for (or, in Raich, they were
> > vulnerable to such charges).
> > Even if this aspect of the three cases is considered fortuitous,
> > there are structural advantages to limiting federal power, such as
> > getting the benefits of policy diversity, voting with your feet,
> > and competitition between state governments - all of which are
> > impaired if federal power is construed as being virtually
> > unlimited. I'm not suggesting that there aren't also sometimes
> > advantages to centralization. But it is wrong to say that in cases
> > such as Lopez and Morrison and Raich, "there wasn't really any
> > interest on the opposite side."
> > A lot of people assume that just because most state governments
> > weren't much opposed to the federal laws at issue in these cases,
> > that means that there wasn't any real benefit to reigning them in.
> > But as Justice O'Connor pointed out in her opinion in New York v.
> > United States, the point of constitutional limits on federal power
> > is to benefit individual citizens, not state governments (who
> > often have a self-interest in promoting overcentralization).
> > Ilya Somin
> > Assistant Professor of Law
> > George Mason University School of Law
> > 3301 Fairfax Dr.
> > Arlington, VA 22201
> > ph: 703-993-8069
> > fax: 703-993-8202
> > e-mail: isomin at gmu.edu
> > Website: http://mason.gmu.edu/~isomin/
> > SSRN Page: http://ssrn.com/author=333339
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