Why was a constitutional ammended needed to ban booze but not drugs? [Archive]

zev_steinhardt

12-14-2000, 05:42 PM

Balthisar

12-14-2000, 05:42 PM

Originally posted by cegan523
...Also, on a side note, wasn't that ammendment the first and/or only ammendment that could be classified as revoking a freedom instead of guaranteeing one?

I feel too lazy to look right now, but what amendment took away the freedom to own slaves?

That question's just to make a point -- it's all a matter of perspective.

zev_steinhardt

12-14-2000, 05:44 PM

Wow! I must have beaten Balthisar to that by only a few seconds!!

Zev Steinhardt

lissener

12-14-2000, 05:46 PM

oh. my. god.

The freedom to own slaves?

I'm going to assume that the TWO above posts are weak attempts at sick humor, and not examples of the dregs of humanity that find their way to SDMB.

zev_steinhardt

12-14-2000, 05:56 PM

Originally posted by lissener
oh. my. god.

The freedom to own slaves?

I'm going to assume that the TWO above posts are weak attempts at sick humor, and not examples of the dregs of humanity that find their way to SDMB.

No. I'm not sick humor and I'm not a dreg of humanity. But there was, in portions of the United States, a legal right to own slaves. That right was taken away by a constitutional ammendment. What's so hard to understand about that?

Zev Steinhardt

zev_steinhardt

12-14-2000, 05:58 PM

Originally posted by lissener

examples of the dregs of humanity that find their way to SDMB.

If you have something to say about me personally, please take it to the Pit. This is not the forum for it.

Zev Steinhardt

Balthisar

12-14-2000, 05:59 PM

BobT

12-14-2000, 06:09 PM

At the time the 18th Amendment was adopted, not every state wanted to ban alcoholic beverages. The proponents of prohibition felt that an amendment to the Constitution would be the best way to ensure this.

Also, if you check the 21st Amendment, it is still legal for a state to ban the sale of alcohol within its borders. The 18th Amendment gave Congress the right to implement to ban the sale of alcoholic beverages in the ENTIRE United States.

Most laws against the sale of drugs are state laws. There are Federal laws as well of course.

friedo

12-14-2000, 06:09 PM

The answer is that a constitutional amendment was not required, and in fact, it was totally inapropriate. But there was a huge prohibition movement, especially among women who had recently gained the right to vote, and it was an amendement-happy time.

The right to own slaves was revoked by Amendment XIII:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

SmackFu

12-14-2000, 06:11 PM

Here ya go...

An amendment to the Constitution obviously appealed to temperance reformers more than a federal statute banning liquor. A simple congressional majority could adopt a
statute but, with the shift of a relatively few votes, could likewise topple one. Drys feared that an ordinary law would be in constant danger of being overturned owing to
pressure from liquor industry interests or the growing population of liquor-using immigrants. A constitutional amendment, on the other hand, though more difficult to achieve, would be impervious to change. Their reform would not only have been adopted, the Anti-Saloon League reasoned, but would be protected from future human weakness and
backsliding.

So a Constitutional amendment wasn't needed to ban alcohol. They just wanted one.

lissener

12-14-2000, 06:11 PM

. . . speechless, horrified several minutes before I can respond . . .

In the first place,

Amendment XIV

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Where is the language by where a right is taken away?

In the second place, do laws against murder take away a "right"? No, because murder is not a "right."

How is slave ownership a "right"?

Gregor Samsa

12-14-2000, 06:13 PM

One theory:

"In his study of alcohol prohibition, Symbolic Crusade: Status Politics and the American Temperance Movement,3 Joseph Gusfield examines the components of
criminal law and separates them into "instrumental" and "symbolic" aspects. Applied to antidrug laws, the "instrumental" aspect is what the law states as its
intention-i.e., the prevention of the use and availability of certain drugs. The "symbolic" aspect may have an importance as great as or greater than that of the
instrumental*: In the case of antidrug laws, part of the symbolic function has been to define users of particular drugs as abnormal and to designate their behavior as
criminal. When this labelling process was attempted with alcohol prohibition as well, it failed because the number of alcohol users in the country was so large and
diverse that no one group could be singled out and designated as "abnormal" exclusively because of drinking alcohol.

*These two functions of the law were best exemplified by the report of the National Commission on Marihuana and Drug Abuse, which called for the retention of
laws against simple marijuana possession but not enforcement of those laws. The law by itself would discourage use, it was argued, and not enforcing it would avoid
stigmatizing those who did use the drug.

However, the use of certain drugs, such as opium, heroin, and-until the 1970s-marijuana was most often primarily confined to subgroups and minorities, whose
separation and isolation were more easily accomplished. This fact partly explains why only congressional approval was needed to ban narcotics and marijuana, while
alcohol prohibition required a constitutional amendment, and why when antidrug laws have appeared to be unsuccessful their total repeal has never been seriously
considered, although repeal was possible with alcohol prohibition."

From druglibrary.org (http://www.druglibrary.org/schaffer/library/studies/fada/fada2.htm)

lissener

12-14-2000, 06:15 PM

Sorry; c/p'ed 14th instead of 13th, but it's oddly appropriate to the discussion anyway, and reads as if it would have outlawed slavery if the 13th hadn't explicitly come first.

BobT

12-14-2000, 06:21 PM

However, the 14th was adopted because the 13th didn't go far enough and the Southern states weren't granting any civil rights to newly freed slaves.
There were so called "black codes" passed by Southern governments that effectively kept the black population in a form of slavery. The 14th Amendment was a way to end those.

SmackFu

12-14-2000, 06:22 PM

How about this logic...

People have the right to property from the 5th Amendment ("nor be deprived of life, liberty, or property"). The 13th Amendment undeniably altered the definition of property, in that it could no longer include persons, so a portion of the rights given in the 5th Amendment was taken away. Which was the original contention.

zev_steinhardt

12-14-2000, 06:23 PM

Originally posted by lissener
. . . speechless, horrified several minutes before I can respond . . .

In the first place,

[list]Amendment XIV

First of all, lissner, you quoted the wrong ammendment. The correct one is the 13th. The text of it is here:

Amendment XIII - Slavery Abolished. Ratified 12/6/1865. History

1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

Now then, in some states, there were laws on the books that permitted people to own slaves. Owning property is a right. See Ammendment 5 (bolding mine)

Amendment V - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As such, if owning slaves was legal in your state, it was a right protected by the 5th ammendment. That right was taken away by the 13th.

In the second place, do laws against murder take away a "right"? No, because murder is not a "right."

No, because murder, unlike owning property, was never a right protected by the Constitution to begin with.

How is slave ownership a "right"?

You may not like. I certainly don't. It's one of the darker periods of our history. But, like it or not, people in certain states had the legal right to own slaves. You can stop sputtering now.

Zev Steinhardt

Billdo

12-14-2000, 06:45 PM

Article I, Section 9, first clause of the U.S. Constitution provides:

The Migration or Importation of such Persons [meaning slaves] as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Article V of the U.S. Constitution provides, in relevant part:

The Congress . . ., shall propose Amendments to this Constitution . . .; Provided that no Amendement which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the First Article; . . .

In short, as one of the great compromises that allowed the Constitution to be acceptable to all of the then-existing U.S. states, the right to import slaves into states that permitted it was Constitutionally guaranteed, and the Constitution provided that guarantee could not be eliminated until after 1808.

The 13th Amendment, as quoted above, which was passed in 1865 prohibited slavery.

DSYoungEsq

12-14-2000, 07:19 PM

lissener is confusing the concept of a 'right', meaning a power you can legally exercise guaranteed to you by the law, with the concept of something that is 'right', meaning something that men ought to be allowed to do in a just and proper society.

By today's standards, and, hell, even by standards in the 19th century, owning humans as property was not something that men ought by 'right' (meaning by moral right) to have been able to do. But, under the provisions of our federal constitution, it might have been a 'right' (meaning power granted by the law) which could not easily be infringed by the federal government; indeed I believe some state constitutions explicitly established owning humans as a 'right' (meaning power granted by the constitution and either unable to be removed by the government or not easily infringed upon by the government).

Contrary to the assertions in the prior posts, I'm not certain that the Fifth Amendment would have precluded a federal law outlawing the owning of slaves. A person can be deprived of property after due process; it happens all the time, and it takes many forms, for example, forfeiture of assets. A properly made federal law banning owning of slaves would have been 'due process'. BUT, there is little room in Article I as it was interpreted prior to 1863 for Congress to have the power to ban the ownership of slaves; a careful review of the clauses under Article I, §8 shows that there is no plenary power by which Congress could ban ownership of slaves. To the extent that Congress might have tried to infringe the commerce of slaves, as interstate commerce, it was prohibited from so doing by Article I, §9.

Another constitutional argument asserting that ownership of slaves was a 'right' hinges on Article IV, §2:No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.Still, we are a long way away from a prohibition on the federal government making ownership of humans illegal.

In short, it appears that the 'right' to own humans was not a specifically enumerated right; it would be at best cobbled together from the intent of the various prohibitions on federal action to interfere in the slave trade, potentially enforceable as a right under the Ninth Amendment; I'm not aware of any cases so holding. But Congress did not have the power to prohibit slave ownership; such power was left to the states individually. The Thirteenth Amendment removed the possibility of such a 'right' being considered to exist, either explicitly in a state constitution or implicitly in the federal constitution.

Biggirl

12-14-2000, 07:21 PM

lissner, why are you so upset? People had a right to own slaves once, that's why they did it. Then that right was taken away (and rightly so).

Yeah, it was terrible but it was true.

jb_farley

12-14-2000, 07:36 PM

and lissener, before you get your hackles raised, remember that slavery in principal still exists today. Not in Early Americna practice, but still in a valid form.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Yup, that's right. It's inhuman to lord over and have complete control over another human being, to demoralize them in order to make them more docile, to force them to do work for your own profit. Unless of course that person has committed a crime.

And the saddest fact of the matter is that the largest population of prisoners is young black males. Pretty funny (in a sick, sad way) that nothing has really changed in a hundred-odd years.

here's to ameriKKKa,

jb

nebuli

12-14-2000, 11:00 PM

DSYoungEsqwrote:Contrary to the assertions in the prior posts, I'm not certain that the Fifth Amendment would have precluded a federal law outlawing the owning of slaves. A person can be deprived of property after due process; it happens all the time, and it takes many forms, for example, forfeiture of assets. A properly made federal law banning owning of slaves would have been 'due process'.But didn't Chief Justice Roger Taney disagree with this in his majority opinion in the Dred Scott case, holding that Congress could not outlaw slavery even in federal territories, let alone in the states?

LCP2972

12-14-2000, 11:20 PM

Originally posted by friedo
The answer is that a constitutional amendment was not required, and in fact, it was totally inapropriate. But there was a huge prohibition movement, especially among women who had recently gained the right to vote, and it was an amendement-happy time.

Ahem,

AMENDMENT XVIII
Passed by Congress December 18, 1917. Ratified January 16, 1919.
Repealed by amendment 21.
Section 1.
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

***********************************************************
Passed by Congress June 4, 1919. Ratified August 18, 1920.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.
***********************************************************

Get 'em straight ,friedo.
The women did NOT vote that one in.
Now there may have been a large female movement FOR the ban,
but they didnt get the right to vote until August 18, 1920 one year seven months and 2 days later.
Now I believe it may have been Utah (please correct me if I am wrong) that had let them vote the whole time.

nebuli

12-14-2000, 11:59 PM

Now there may have been a large female movement FOR the ban,
but they didnt get the right to vote until August 18, 1920 one year seven months and 2 days later.
Now I believe it may have been Utah (please correct me if I am wrong) that had let them vote the whole time.It was Wyoming which first granted women the right to vote. According to britannica, by 1918 fifteen states had granted women equal voting rights and a number of others granted partial voting rights.

Lumpy

12-15-2000, 12:01 AM

Originally posted by jb_farley
and lissener, before you get your hackles raised, remember that slavery in principal still exists today. Not in Early Americna practice, but still in a valid form.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Yup, that's right. It's inhuman to lord over and have complete control over another human being, to demoralize them in order to make them more docile, to force them to do work for your own profit. Unless of course that person has committed a crime.

And the saddest fact of the matter is that the largest population of prisoners is young black males. Pretty funny (in a sick, sad way) that nothing has really changed in a hundred-odd years.

here's to ameriKKKa,

jb Does this mean just that convicts can be sentenced to hard labor? Or could the penalty for a crime actually be being sold into chattel slavery for life to a private party? Or would some other civil right preclude that?

jb_farley

12-15-2000, 12:08 AM

Originally posted by Lumpy
Does this mean just that convicts can be sentenced to hard labor? Or could the penalty for a crime actually be being sold into chattel slavery for life to a private party? Or would some other civil right preclude that?[/QUOTE]

Not only can they be sentence to hard labor, oftentimes that's a preferred method.

As to chattel slavery for life, is that any different then a life-sentence convict making products (stereotypically license plates, although it's oh so much more) for for-profit prisons?

It's a booming industry, m'boy.

jb

LCP2972

12-15-2000, 12:27 AM

Originally posted by nebuli
It was Wyoming which first granted women the right to vote. According to britannica, by 1918 fifteen states had granted women equal voting rights and a number of others granted partial voting rights.
[/B]
my aplogies,
I may have been mistaken.
thank you, nebuli

friedo

12-15-2000, 12:44 AM

I should have been more clear. Women had recently gained voting rights in many states before the prohibition amendment was passed, but the women's suffrage amendment (which made it mandatory in every state) was, in fact, passed later.

Captain Amazing

12-15-2000, 12:59 AM

Originally posted by nebuli
[b]]But didn't Chief Justice Roger Taney disagree with this in his majority opinion in the Dred Scott case, holding that Congress could not outlaw slavery even in federal territories, let alone in the states?
Well, yes. The majority opinion stated:

"Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law."

The complete decison can be found here: http://www.tourolaw.edu/patch/Scott/

Odesio

12-15-2000, 01:05 AM

Originally posted by jmullaney
Why was a constitutional ammended needed to ban booze but not drugs?

That was actually a very tricky question that needed to be answered in the early part of the 20th century. No drug that I know of is 100% illegal. What we have is a system where certain "controlled" substances are illegal in the wrong hands. Cocaine and heroine can be found and are used in hospitals and pharmacies across the nation.

Marc

kanicbird

12-15-2000, 05:14 AM

Because the Fed. has become much more power hungry and doesn't want to tangle with such complicated matters such as the messy amendment process.

Spectre of Pithecanthropus

12-15-2000, 10:26 AM

Originally posted by cegan523
hmmm... good question. I'd really like to see if anyone knows the history and/or legal reasons behind this.

If I were to WAG, I'm thinking that a constitutional ammmendment WASN'T NEEDED to outlaw alcohol, but there was some political reason to do so.

Also, on a side note, wasn't that ammendment the first and/or only ammendment that could be classified as revoking a freedom instead of guaranteeing one?
One possibility I see is that for a Constitutional amendment, the ratification process was a snap, being based on a state-by-state tally. Any two sparsely populated, rural, Dry states could overrule one urbanized Wet state like New Jersey, or looking at it another way, one voter
in a Dry state, through his representatives, could overrule
hundreds if not thousands of New Yorkers.

Though I think before the amendment was submitted to the states for ratification, at some point it had to pass muster in the House of Representatives, which is of course proportionate.

I agree that it's the only Amendment that explicitly bans a freedom, although the Tenth Amendment, to my way of thinking, could be construed to allow state and local governments to institute their own restrictions.

DSYoungEsq

12-15-2000, 10:27 AM

Ah, yes, I should have assumed someone would dredge up Scott v. Sandford, 60 U.S. 393 (1856).

Chief Justice Taney did not say that Congress could not make a law freeing slaves.

Indeed, the Court was not ruling on the issue. The Court was ruling whether a) Dred Scott, a slave, was a citizen of the United States entitled to sue in federal court; b) Dred Scott had become a free person by travelling into the federally organized territory of Upper Louisiana; and c) Dred Scott had become a free person by travelling to the territory of the State of Illinois.

As to a), the Court ruled that slaves were not citizens under the Constitution

As to c), the Court ruled that he did not, because of the prior holding of the Court in Strader et al. v. Graham, 10th Howard, 82 (sorry, I can't find the modern citation).

As to b), the Court ruled that he did not. In so ruling, the Court determined that the unorganized territory was governed by the limitations on federal power placed in the Constitution, and that the Constitution conferred no power on Congress to eliminate the property rights of a person who transported that property from a state in which the property was legally owned to a federal territory. This ruling was not grounded solely in the provisions of the Fifth Amendment.

Indeed, the quote from the opinion does not support the proposition offered by nebuli. It simply states that the property bond properly formed elsewhere cannot be severed merely through transportation from a state into federal territory without violating due process.

Which leaves us exactly where we started; Congress might have been prevented under Article I from freeing slaves because it wasn't the exercise of a specifically granted power, Congress was prohibited from preventing the interstate commerce of slavery for 20 years, impliedly permitting the ownership of slaves for those 20 years, Congress could not deprive the owner of his property without due process, and due process did not include taking away that ownership status simply because the property entered the federal territory or another state.

Spectre of Pithecanthropus

12-15-2000, 10:31 AM

Originally posted by javaman
Originally posted by cegan523
hmmm... good question. I'd really like to see if anyone knows the history and/or legal reasons behind this.

If I were to WAG, I'm thinking that a constitutional ammmendment WASN'T NEEDED to outlaw alcohol, but there was some political reason to do so.

Also, on a side note, wasn't that ammendment the first and/or only ammendment that could be classified as revoking a freedom instead of guaranteeing one?
One possibility I see is that for a Constitutional amendment, the ratification process was a snap, being based on a state-by-state tally. Any two sparsely populated, rural, Dry states could overrule one urbanized Wet state like New Jersey, or looking at it another way, one voter
in a Dry state, through his representatives, could overrule
hundreds if not thousands of New Yorkers.

Though I think before the amendment was submitted to the states for ratification, at some point it had to pass muster in the House of Representatives, which is of course proportionate.

I agree that it's the only Amendment that explicitly bans a freedom, although the Tenth Amendment, to my way of thinking, could be construed to allow state and local governments to institute their own restrictions.
And a Constitutional Amendment would be much harder to repeal. But the Prohibitionist elements underestimated how
sick the American people would become of them, so of course
it was repealed.

Captain Amazing

12-15-2000, 10:59 AM

Originally posted by DSYoungEsq

As to a), the Court ruled that slaves were not citizens under the Constitution

Minor nitpick. The Court didn't rule in the decision that slaves weren't citizens under the Constitution. The question at issue was whether Scott was a slave or not, so, until that status was determined, whether slaves were citizens or could bring suit was irrelevant. What the majority decision, written by Taney decided was that the decendants of black slaves were not citizens, because the process by which the original black slaves came to this country differed from that of either most immigrants or Indians. Both immigrants and Indians were citizens of a paticurlar nation, and therefore could transfer allegances, while the slaves imported, came against their will and weren't citizens of any government recognized by the United States. Therefore, they weren't citizens of anywhere, and, consequently, couldn't pass citizenship down to their decendants, even if those decendants were free.

Lumpy

12-15-2000, 02:52 PM

Originally posted by jb_farley
Does this mean just that convicts can be sentenced to hard labor? Or could the penalty for a crime actually be being sold into chattel slavery for life to a private party? Or would some other civil right preclude that?

Not only can they be sentence to hard labor, oftentimes that's a preferred method.

As to chattel slavery for life, is that any different then a life-sentence convict making products (stereotypically license plates, although it's oh so much more) for for-profit prisons?

It's a booming industry, m'boy.

jb I wasn't thinking of prison industry or chain gangs; those are administrated by the government. I was asking about in-shackles, on-the-auction-block, kept-chained-in-the-garage slavery. The USSR had millions of convict laborers in the Gulags, but the Soviet Union did not have private chattel slavery.

I was asking if, say, the Texas Legislature could pass a law making slavery the penalty for dealing drugs, and have public auctions where you could pick up some manual laborers. I would be very surprised if this was held to be allowable. Note that even in the worst days of the segregated South, with sharecropping, vagrancy laws and convict labor, they never actually reintroduced private slavery.