Posted by Ilya Somin:
Happy Repeal Day ! The 75th Anniversary of the End of Prohibition:
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228439296
Radley Balko has [1]an excellent article on the upcoming 75th
anniversary of the repeal of prohibition by the Twenty-First
Amendment. He notes some important parallels between the failures of
Prohibition and those of today's very similar War on Drugs:
It did reduce overall consumption of alcohol in the U.S., but that
reduction came largely among those who consumed alcohol
responsibly. The actual harm caused by alcohol abuse was made
worse, thanks to the economics of prohibitions.
Black market alcohol was of dubious origin, unregulated by market
forces. The price premium that attaches to banned substances made
the alcohol that made it to consumers more potent and more
dangerous. And, of course, organized crime rose and flourished
thanks to the new market created by the 18th Amendment and the
Volstead Act.
So hospitalizations related to alcohol soared. And so did violent
crime. Corruption flourished, as law enforcement officials in
charge of enforcing prohibition went on the take, from beat cops
all the way up to the office of the United States Attorney
General...
There's no question that drug prohibition has been every bit the
failure alcohol prohibition was. Nearly 40 years after the
[Controlled Substances Act of 1970] passed, we have 400,000 people
in prison for nonviolent drug crimes; a domestic police force that
often looks and acts like an occupying military force; nearly a
trillion dollars spent on enforcement, both here and through
aggressive interdiction efforts overseas; and urban areas that can
resemble war zones. Yet illicit drugs like cocaine and marijuana
are as cheap and abundant as they were in 1970. The street price of
both drugs has actually dropped�dramatically�since the government
began keeping track in the early 1980s.
The main difference between the two prohibitions is that one was
enacted lawfully, and once it became clear that it had failed, we
repealed it (and government revenues soared with new alcohol
taxes). As the drug war has failed, the government merely claims
more powers to fight it more aggressively.
Radley also notes that the one saving grace of Prohibition was that it
was clearly constitutional, enacted through the amendment process
rather than by dubious overextension of Congress' power to regulate
"interstate commerce" under Article I of the Constitution. When
Prohibition was enacted, few jurists or legal scholars doubted that a
constitutional amendment was required to give Congress the power to
ban all sales of alcohol, including those that occurred within the
territory of a single state. That consensus - which traces its origins
back to the Founding era - is an important strike against the modern
view that Congress has unlimited power to regulate anything and
everything as a result of its authority to regulate "interstate
commerce" under Article I of the Constitution.
By contrast, the War on Drugs has culminated in decisions such as
Gonzales v. Raich, which, as I explained in [2]this article, gives
Congress virtually unlimited authority to regulate any activity using
its Commerce Clause power, whether the activity has any meaningful
connection to interstate commerce or not.
Constitutional federalism is just one of the many casualties of the
War on Drugs. Of course it's not as important as the thousands of
deaths, hundreds of thousands of broken lives, and tens of billions of
wasted dollars. But it's worth noting nonetheless.
References
1. http://reason.com/news/show/130383.html
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=916965
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