Freespace

"Prop 5 actually perpetuates the Drug War"

Reader Bobby Hill has this to say about my comments endorsing Prop. 5:

I’m a deputy  public defender in L.A.. I am a narcotics prohibition abolitionist. I disagree that only a drug warrior could oppose Prop. 5, as you blogged. The initiative has provisions which actually would perpetuate the drug war. First, it would grant judges discretion to grant diversion “rehabilitation” to persons convicted of non-drug offenses. (Pen. Code, §§ 1210.03, subd. (b), 1210.1, subd. (f)(2), as proposed.) Under existing law, the concurrent conviction of  a non-drug offense, such as a theft, disqualifies a person from Prob. 36 “rehabilitation.” (Pen. Code, § 1210.1 subd. (b)(2).)  The proposed change would allow a judge to relieve individuals who commit non-drug offense from the sanctions of the general criminal law, if a judge determines that diversion “is in the interest of the defendant ... .” (Pen. Code, § 1210.03, subd. (b), as proposed.) Presumably, judges would make such findings when a defendant’s non-drug crime, such as theft, is related to (motivated by) the defendant's habitual drug use.

By codifying habitual narcotics use (“addiction”) or intoxication as a sometimes excuse for legitimate crimes plays into the ideology of the drug war. Its dehumanizing premise is that persons who use drugs are incapable of exercising free will. If that were true, then the natural rights to life, liberty and the pursuit of happiness would not apply to a habitual drug user anymore than they would to a farm animal, which as you point out, in discussing Prop 2, has no rights. But if, as I believe, a person always can choose whether or not to take a hit or to shoot up, then that person has the right to choose to do so. If you believe that a person always has the power to choose whether to use narcotics, then you must also believe that he or she has the power to choose whether to take another's property. This is to say that rights cannot be claimed for narcotics users if responsibility is denied them. Thus, by excusing narcotics users of responsibility for non-drug crimes, Proposition 5 makes it more difficult to argue for the abolition of prohibition.

Further, and more generally, Proposition 5 perpetuates the drug war by sugarcoating it. To the extent that citizens believe that our law “cures” or otherwise “helps” “addicts,” they will overlook that the drug war persists in essentially full brutality. Under Prop 5’s coercive rehabilitation ethic, sellers are exploiters of helplessly “ill” “addicts.” Consequently, sellers and traffickers would remain fully green-lighted enemies of the drug war. Draconian penalties for sellers would remain, including for, say, a homeless person who sells a $ 10 rock to support his own habitual use. Morally, users and sellers are indistinguishable. Practically, of course, the war against drugs, which would continue against sellers and manufacturers essentially unabated by Proposition 5, causes transactional violence, inefficient use of law enforcement resources, inefficient use of agricultural and other productive factors, and produces unpredictable and tainted doses of drugs. Constant searching for narcotics erodes Fourth Amendment protections and fosters resentment of law enforcement. Civil asset forfeiture is another nasty feature of the drug war, which, of course, Proposition 5 does not touch.

To borrow from Neil Young, Proposition five amounts to a kinder, gentler machine gun hand – that’s all. George Soros is one of the main financial backers. I assume you disagree with his position supporting a confiscatory death tax. He is equally wrong on this measure, again placing his concept of community welfare above individual liberty.

I enjoy and learn from your blog, and writings, which are full of insight. Thanks very much for your work. Among other things, you tempered my support for Ron Paul, although I ultimately did vote for him.

These are interesting points, but I don’t find them convincing, and I’ll explain why in reverse order. First, the fact that the initiative is sponsored by George Soros is irrelevant in my view. I disagree with much of what Soros supports, but that doesn’t mean I can’t agree with him on some things.

Second, the argument that “sugarcoating” the Drug War will perpetuate it is problematic. One might make that argument against any attempt to relieve some of the Drug War’s more extreme effects. One might say that reducing mandatory penalties for certain offenses actually perpetuates the Drug War because it disguises its brutal principles. Some people today argue that school voucher programs are a bad idea because they only perpetuate the government’s monopoly on schooling. I don’t usually buy such arguments. While in some cases, there might be political value to be gained by the opposition’s brutality being demonstrated most vividly, I’d prefer to see even some slight amelioration—even if it means that people foolishly think that doing so entirely solves the problem. When the situation is this bad, I favor compromises that reduce the bad stuff a little, so long as we make it clear that it isn’t intended as a permanent resolution. The choice here isn’t between the Drug War and the abolition of the Drug War. It’s the choice between a deplorable state of affairs and a slightly less deplorable state of affairs. I actually do prefer kinder, gentler machine guns to the more brutal kind—although I would most prefer none at all.

Third, I think the argument that Prop. 5 will encourage people to think that drug addicts lack free will is a bit far fetched. It is true that while under the influence of drugs people do things that they would not do if they were sober, and it is also true that drug addicts who are not high tend to do things they would not do if they were not addicts. If there are people who argue that this proves they do not deserve to have their rights to life, liberty, and property respected, then those people are clearly wrong, but I don’t think I’ve heard that argument being made, and in any case I think it’s clearly distinguishable. In any case, most non-violent drug crimes shouldn’t be crimes (e.g., possession, sale and so forth) and thus a law that allows courts to send these people to something less than jail is a step forward.

Finally, I do think there’s a good argument to be made that crimes committed under the influence of drugs ought to be penalized more than crimes committed while sober. In fact, I think replacing drug prohibition with such increased penalties would be a huge advance. And I would not advocate a measure that put all persons who commit crimes while high into rehabilitation—clearly there are many such people who ought to go to prison. But there are certainly some who would be better off in rehabilitation instead (and society would be better off if they were in rehab instead, too). So I would support allowing a judge to make that call.

An originalist defense of substantive due process

This article sounds very promising.

The Freespace voter guide

President: Bob Barr. A few reasons. First, the likelihood of my vote changing anything are practically zero, but the likelihood of my feeling like a total dick if I vote for either McCain or Obama is 100 percent, so I might as well vote for Barr.

McCain has forfeited my vote by his support of McCain-Feingold, which shows (as if nothing else did) that he has contempt for the Constitution of the United States and cannot therefore support and defend it. He was the architect of the Senate compromise by which Janice Brown was barred from the Supreme Court and the Democrats continued to get their veto power over judicial appointments. He has no principles and never had any. His recent attacks against Obama's socialism are good, but too little, too late--and completely contradicted by his own claim that he would order the Treasury Department to simply buy up all bad mortgages and renegotiate them at the diminished value, thereby absorbing tens of thousands of dollars per house into the tax burden of the United States. And nothing needs to be said about his appalling choice of a running mate.

Obama is obviously extremely far left, with contempt for private property rights and economic freedom and a genuine ideological desire to steal things from people who earn them and give those things to people who do not. He is much more committed to genuine socialism than any Democrat in living memory. His views on foreign policy are ignorant in the extreme. Nor do I buy his alleged secularism. Both candidates use religion when it suits them, and of the two, Obama's exploitation of religion is, I think, actually more offensive than McCain's. Yet at the same time, I suspect that Obama is more sincere in his religious convictions than people have been willing to acknowledge, and that his election would be a very bad sign of a rising religious left. And nothing needs to be said about his appalling choice of a running mate.

Of these two, clearly Obama is the better candidate. But that is only a testimony to how depressingly inadequate are the major party nominees. Neither even approaches being qualified for the presidency. Neither believes in individual liberty. Both believe in government waking us up in the morning, watching over us during the day, and tucking us in to bed at night. Both would take from the mouth of labor the bread it has earned. Both would nominate deplorable judges (Obama out of ideological commitment; McCain out of plain ignorance). Neither would fix the Social Security crisis. Both would give government control over our choices in health care. Both would violate, routinely and as a matter of policy, the first ten amendments to the Constitution (well, maybe not the third....)

And, of course, Ron Paul is an embarrassing lunatic. So, Barr's the man.

On to the California ballot initiatives....

Morse’s argument on the Marriage Cases

Jennifer Roback Morse has a brief note here on a paper I coauthored with Damien Schiff on the California Supreme Court. She says that our analysis of the Marriage Cases (which is extremely brief) supports her view that “the end result of the legal trends would be a world in which gender is considered socially constructed and therefore subject to social engineering, while sexual orientation is considered fixed, immutable, and therefore the basis for creating a protected class.”

This is an intriguing statement, but I think on closer examination it doesn’t really mean much. The theory that “gender is socially constructed” includes the proposition that sexual orientation is part of gender. That is, “gender” does not mean sex—it means sex plus sexual orientation. The dispute is then whether it’s immutable or socially constructed. I think most of that debate is irrelevant and silly, so I won’t get into it; my point is just that I don’t think it’s meaningful to say that those who take such debates seriously believe simultaneously that (a) the government should interfere with man-woman relationships and (b) the government should not interfere with same-sex relationships. One might argue that the left (or the state: in California they’re the same) is, in practice, taking these positions simultaneously, but I don’t think it’s as the result of considered opinion by any intellectual elite. To put it simply, those who support the right of same-sex marriage also believe in the right of hetero-sexual marriage. It’s pathetic, in my view, that the reverse is not true.

Second, Morse writes that “requiring defense of sexual orientation claims to pass strict scrutiny greatly increases the chance that in conflicts between religious liberty and sexual orientation, the state will now favor sexual orientation. Religious liberty claims are far more likely to lose.” This, of course, is a typical trick of those opposed to same-sex marriage rights—to use “religious liberty” as a euphemism for bigotry and violating the rights of others.

To put it as clearly as possible: “strict scrutiny” applies only to actions by the state, which has no legitimate religious liberty rights—only individuals have such rights. Thus the two cannot come into conflict. On the other hand, individuals have religious liberty rights—including the rights to disapprove of same-sex marriage and to express that disapproval—but they are not subject to the “strict scrutiny” test. So, again, the rights of gay couples and the rights of their religiously motivated opponents do not come into conflict.

On the other hand, if you believe that your religious freedom includes the “right” to use the government to violate the rights of other people, well, then, yes, that would conflict with the strict scrutiny standard being applied to gays in the Marriage Cases. But then, if you believe that your religion allows you to coerce other people, you really aren’t much concerned with the Constitution to begin with.

A real realignment?

It’s clear that libertarians have been purged from the Republican party, and not just by Karl Rove. The libertarian wing of the Republican party was targeted in 1996, when the Dole crusaders eliminated every single voice of old fashioned Reagan-style small government conservatism from the convention.

So let’s assume Obama wins the election, and begins to implement his vision for paying other people’s bills with my money. Now what?

I think there is great potential here for a serious revival of free market thinking. I’m not talking about the “burn, baby, burn” attitude of all too many defenders of freedom who are eager to see catastrophe so that then people will understand... That will never work—no matter what catastrophes are brought on by their policies, liberals will always blame someone else, usually property and business owners. No, the question here is, what will happen to the Republican party?

At optimistic moments, my thinking is this: we are seeing the Republican party truly dissolve into two strands. This has been a long-running process, which is finally reaching the crisis point: the social conservatives and the libertarians are finding their differences truly irreconcilable. “Fusion” turned out to be fission.

So what will Republicans do? I think they will continue to degenerate into the theocrat party, leaving libertarians to—do what? Well, they won’t get a fair hearing from the Democratic party, I can tell you that; Democrats are not only saturated in, but absolutely defined by, the group-interest politics created by FDR. And so far there aren’t enough libertarians to make much of a difference on their own. But I think that could change—it’s up to libertarians. They now have a chance to very clearly define their differences with Democrats and Republicans: to show how certain goals dear to Democrats (privacy, gay rights, science, &c.) can be accomplished more efficiently through free market alternatives. And, better yet, they have the opportunity to draw to their ranks the disaffected Republicans bitter at the way their party has turned into the party of big government status quo. The raw materials are here, and libertarians must put them to good use. It won’t be easy, but I think at this point, with the Republican party in shambles, the opportunity may soon be better than it’s ever been.

Is this just more wishful thinking on my part?

America's Constitution-free zone

The ACLU explains how amorphous "border searches" (for which the government claims it needs no warrant) are swallowing up more and more domestic territory.

The slow blogging

I’ve been occupied lately with the biography I’m writing, which takes up most of the time formerly allocated to blogging. I will say it is amazing what sort of information resources are available nowadays that were not around ten years ago when I started this project. Google Books alone is a godsend—even when you can’t read the books, you can at least tell what books you have to get at the library. But then you can also read the full text of two centuries of the London Times on-line—key word searchable—as well as the entire runs of The Guardian, The Observer, The Jewish Chronicle, the New York Times…. It’s an astonishing amount of information. How did people ever do research before these things became available?

Obama in 2010?

Argentina is considering "nationalizing" (i.e., stealing) private pensions. Is there any reason that this would not happen in an Obama Administration?

Speaking of tigers

See? And you thought that skill would never come in handy.

Dear Allah

Please kill this man.

Sincerely yours....