Liz Ditz left a link to some other articles written by Michael Tremoglie, the author of the very badly reasoned article on church and state that I fisked the other day, and I had to take a look. It looks like that article was no fluke, he really is that clueless about most things. To wit, this absurd statement from an article he wrote about the Ninth Circuit court:
In another patently anti-Constitutional ruling about legalizing marijuana, the Ninth Circuit ruled that, for all practical purposes, California state law trumped U.S. law. The issue involved the California law about using marijuana for medicinal purposes. This is contrary to the Constitution of the United States, which declares federal law supersedes state law. This is a fundamental tenet of the Constitution, yet it somehow escaped the Ninth Circuit judges.
How about that for stunning ignorance? The ninth circuit court is absolutely right in the medical marijuana case. Tremoglie just doesn't have a clue what was actually involved in the case, which is based on the commerce clause. The commerce clause spells out one of the exceptions, one of the places where state law is superceded, when it involves interstate commerce. But that case doesn't involve interstate commerce, it involves a product grown solely for personal use on personal property. Hence, it is neither interstate nor commerce and the clause does not apply. But isn't it amusing that a man who mindlessly uses all the popular catchphrases that conservatives like to throw at the judiciary ("judicial activism") would be arguing for this vast increase in federal power that is unjustified by the Constitutional grant of authority, as long as he wants them to have that power? It's especially ironic since just a few sentences later he says:
Conservative judges were kept out of the judiciary during the Clinton years, and the liberals used the judiciary to circumvent the will of the people, foisting their agenda upon the nation via the bench.
Does he really not recognize the inconsistency here? He is arguing for a judge to strike down a medical marijuana law that was passed in California by popular referendum - you know, the "will of the people" - and for federal law to supercede state law without constitutional basis, since the action that the federal law prohibits is neither commerce nor interstate, while at the same time arguing against judicial activism? I'm guessing the answer is yes, he really does not recognize the inconsistency, and I suspect it's because he's just throwing around buzzwords without any coherent thinking behind them. Even more absurd is his very next sentence about the alleged effects of this "activism" he thinks he is opposing:
The immediate effect of judicial activism was in the criminal courts. Lenient sentencing of repeat offenders led to crime waves and thousands of innocent victims.
Crime wave? Because of Clinton's judicial appointments? In what fantasy world did "lenient sentencing" lead to "crime waves" during the Clinton administration? Crime dropped steadily throughout the 1990s. The homicide rate in the US dropped a full 40% from 1992 to 2000, from 10.1 to 6.1. Indeed, violent crime as a whole dropped significantly during Clinton's time in office. The Bureau of Justice Statistics page on trends in violent crime has all the details, and it notes that, "Violent crime rates have declined since 1994, reaching the lowest level ever recorded in 2003." The rate of rape dropped a full 2/3, from 1.8 in 1992 to .6 in 2000. Robberies dropped almost in half, from 6.1 in 1992 to 3.2 in 2000. Aggravated assault also dropped in half, from 11.1 to 5.7. Total incidents of violent crime went from 47.9 in 1992 to 27.4 in 2000. Where exactly did those waves of crime take place that Tremoglie refers to? Apparently in his imagination alone.
For that matter, in what alternate universe does that "lenient sentencing" exist? The trend has been in quite the opposite direction, with strict sentencing guidelines, mandatory minimum sentences and habitual offender statutes being the norm at both the state and federal levels. As one recent government study showed:
Whatever the causes, there is no dispute that in recent decades the scale of imprisonment has climbed dramatically over historic levels in the federal and in most state criminal justice systems. Figure 2.1 shows that both federal and national imprisonment rates--the number of prisoners per 100,000 adult residents--remained fairly steady for fifty years before climbing to over four times their historic levels by 2002.
And that study goes on to note that this vast increase in incarceration rates was due almost entirely to stricter sentencing:
In the most sophisticated analysis of these factors, criminologists Alfred Blumstein and Allen Beck examined the near-tripling of the prison population during the period 1980-96 and concluded that changes in crime explained only 12% of the prison rise, while changes in sentencing policy accounted for 88% of the increase.7 Essentially, persons arrested for a felony offense became far more likely to be sentenced to prison (accounting for 51% of the increase) and to be sentenced for a longer period of time in prison (37% of the increase). Newly adopted policies such as mandatory sentencing, "truth in sentencing," and increasingly, "three strikes and you're out" laws have resulted in a far more punitive justice system than in years past.
The US has the highest rates of incarceration in the civilized world, and I mean we hold the record by miles. The current incarceration rate in the United States is 720 per 100,000 people. The only other nations that are even close are Russia, at 628, and South Africa, at 400, and those are hardly the kinds of role models we want to have. No other Western nation is even above 150, for crying out loud, with England the next highest at 139 all the way down to Japan at 53. But despite both the enormous drop in crime over the last 14 years and the enormous increase in incarceration rates in the US, we still have the highest rates of violent crime in the civilized world - and again, we're out in front by a huge margin. The homicide rate alone, despite dropping over 40% in the US since 1990, is still 4 times higher than any of the nations in Western Europe.
Tremoglie is not just wrong, he's flagrantly, astonishingly, incredibly wrong. His claims are so far from reality that they begin to take on the form of the queen from Alice in Wonderland. Perhaps he imagines that it is his job to declare 12 impossible (and utterly false) things before breakfast each day.
Paranthetical aside: Perhaps I should also note that I am emphatically not making any argument that Clinton or his policies had anything to do with the dramatic drop in crime rates in the 90s. That drop was almost certainly due to a number of factors that had nothing whatsoever to do with Clinton or with federal policy at all, especially an aging population. The crime rate among demographic groups is enormously higher among those under 40 years old, so it's hardly a surprise that crime rates grew enormously from the 1960s to the late 1980s (when the baby boom generation was between 20 and 40) and then fell after that.
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where are you getting
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your numbers from? I thought the number of people in state and federal jails was around 1.4 million, or roughly -----------------------------------------------------------------------
500 per 100,000. Perhaps I read something wrong in the past.
(formatting note: if your site's going to interrupt posts with horizontal lines, might as well go all out.
Posted by steve at January 16, 2005 09:19 PM
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The Controlled Substance Act permits enforcement even for intrastate activity because of the effect that such activity would have for interstate commerce.
However that aside ask yourself this if a CA referendum made it possible for residents to possess shoulder launched surface to air missiles for self - defense use only and only purchased within the state by manufacturer within the state would the feds be able to prohibit this.
Using your logic they would not because there is no interstate commerce involved.
How much do you want to bet they could?
Regarding crime rates and lenient judges I did not say CLinton's judges resulted in a crime wave. I said one result of lenient judges "was" an increase in crime. However I will grant you the wording was confusing and you could draw that conclusion.
Regarding your statement that the concept of the crime rate decreasing is because of an aging criminal population is just a theory which is not generally accepted.
Regarding US v other nations crime and incarceration rates. This is a specious and flase argument for a couple of reasons.
First other countries use fines much more than we do here ergo less imprisonment. Second your statement that " despite both the enormous drop in crime over the last 14 years and the enormous increase in incarceration rates in the US, we still have the highest rates of violent crime in the civilized world - and again, we're out in front by a huge margin." is completely false please refer to the 2000 ICVS.
I do not have the time to give you a detailed refutation to your ipsedixits - especially the last one about the int'l crime rates which was incredibly ignorant. I have refuted some of your major ones and explained another.
The next time you call people stunningly ignorant etc you should know what you are talking about
steve writes:
where are you getting your numbers from? I thought the number of people in state and federal jails was around 1.4 million, or roughly 500 per 100,000. Perhaps I read something wrong in the past.
That is the approximate number in state and federal prisons. There is an additional 600,000 or so in local jails, for a total that went over 2 million for the first time in 2002 and has continued to climb since then.
Michael Tremoglie wrote:
The Controlled Substance Act permits enforcement even for intrastate activity because of the effect that such activity would have for interstate commerce.
Well that's the legal issue in the case, isn't it? The question is whether the argument that any activity that might hypothetically prevent someone from purchasing something that might be considered interstate commerce also qualifies as interstate commerce. To cite the authority of a statue whose constitutionality is being challenged in support of a claim about the constitutionality of that statute is rather silly, don't you think? Of course the Controlled Substances Act permits regulation of that particular activity. The question is whether the Controlled Substances Act, as applied to that particular activity, is constitutional or not. Your claim was that it is constitutional merely because "the Constitution of the United States...declares federal law supersedes state law. This is a fundamental tenet of the Constitution...". But this claim is false. It is absolutely untrue that a "fundamental tenet of the Constitution" is that "federal law supercedes state law", particularly when stated that broadly. In fact, the Constitution has specific provisions that tell us in what situations that is the case and anything that falls outside of those situations is left to the states to regulate as they see fit.
So now the question is whether the Constitutional basis that is claimed in this case is legitimate or not. And for that, a little history is required. The interstate commerce clause spells out the most obvious situation in which Federal law trumps state law, when it involves the buying and selling of goods between states. But as any legal scholar can tell you, that power was abstracted to an absolutely absurd degree by a New Deal era case called Wickard v. Filburn. In that case, the Federal government argued that they had the authority to tell a farmer he could not grow wheat on his own land, for use solely by his own family, because by growing that wheat, he might not buy other wheat that might come from other states. And the Supreme Court accepted that reasoning, which allowed for a vast increase in Federal power to regulate virtually any aspect of our lives. With this weak standard, the interstate commerce clause may be applied to absolutely anything. Virtually all legal scholars recognize the absurdity of the Wickard decision, the fact that it removed all possible limitations on the scope of federal power, and the fact that it was entirely contrary to the intent of the founders when they wrote that clause. Now that's something that conservatives, one would think, would be squarely against - it's anti-federalist, it's an excuse for a limitless expansion of Federal power, and it's totally contrary to the original intent and text of the Constitution. But since in this case it involves marijuana, and they don't like that, consistency goes right out the window.
However that aside ask yourself this if a CA referendum made it possible for residents to possess shoulder launched surface to air missiles for self - defense use only and only purchased within the state by manufacturer within the state would the feds be able to prohibit this.
Using your logic they would not because there is no interstate commerce involved.
Actually, in that case there would almost certainly be interstate commerce involved. I doubt anyone out there is making their own surface to air missiles in their basement. Regardless, there may be some other constitutional basis for regulation in that instance and it would almost certainly be against California law. In the Raich case that you are referring to, there is no basis for Federal regulation at all and California law explicitly allows the activity, a law that was passed by popular referendum. Yet despite that, you still pose your argument as supporting the "will of the people". Inconsistency? Yep, to the third power.
Regarding crime rates and lenient judges I did not say CLinton's judges resulted in a crime wave. I said one result of lenient judges "was" an increase in crime. However I will grant you the wording was confusing and you could draw that conclusion.
I'm not gonna let this go quite that easily. Your wording doesn't merely allow that conclusion, it demands it. Here is what you said:
You obviously refer what judges did "during the Clinton years" and even point to the "immediate effect" being lenient sentencing of repeat offenders. But this is completely contrary to reality. The trend over the last 15 years has been toward stricter sentencing and longer sentences, which is what has fueled the vast increase in the prison population, and you don't give a single example of an "activist judge" changing that trend in a single case. Nor do you give any example of a judicial ruling that bucked that trend resulting in a "crime wave" with "thousands of innocent victims", which is what you claimed was the "immediate effect" of "liberal" judges appointed by Clinton. You don't give any examples of those things because none exist and your claim is completely false. You know as well as I do that crime dropped hugely during the 1990s and that sentencing got stricter, not more lenient. It's just not honest. But the truth, I suspect, would get in the way of the fairy tale you're selling, the one where those "activist judges" ruled for "lenient sentencing" resulting in "crime waves". But if you're gonna tell fairy tales, at least label them as such. As it is, you are simply lying to your readers.
Regarding your statement that the concept of the crime rate decreasing is because of an aging criminal population is just a theory which is not generally accepted.
Irrelevant. I made that statement only to answer anyone who thought I might be giving Clinton credit for the drop in crime rates. I am not doing so, and see no reason to believe that he or his policies had anything to do with the historic drop. It has no bearing on the multiple false statements you made in this regard.
Regarding US v other nations crime and incarceration rates. This is a specious and flase argument for a couple of reasons. First other countries use fines much more than we do here ergo less imprisonment.
And this matters why? My statement was that other nations imprison far fewer people than we do as a percentage of population. You just confirmed that. How on earth does that make my statement "specious"? It only confirms that I am right.
Second your statement that " despite both the enormous drop in crime over the last 14 years and the enormous increase in incarceration rates in the US, we still have the highest rates of violent crime in the civilized world - and again, we're out in front by a huge margin." is completely false please refer to the 2000 ICVS.
The ICVS is a very poor study of crime statistics based solely upon random telephone surveys, and they used an extraordinarily small sample size. They randomly called up 1000-2000 people from each country, all from the major cities (if they felt that wasn't enough, they would then randomly call 200 people in rural areas as well) and asked them if they had been the victim of various types of crime. They got an overall 64% response rate on those calls. And they admit that the sampling error is high and therefore the survey cannot provide precise measures of national crime rates. With such a high margin of error on a self-reporting survey, if it found that 2.9% of, say, Swedes said they'd been the victim of a violent crime while only 2.6% of Americans said they were, that would mean virtually nothing. In a sample size of 1000, that .3% difference is far smaller than the margin of error itself. According to most comparisons, it's certainly true that the rest of the world has been catching up to us. Crime rates in Europe have been climbing as the US has been falling, but this is limited mostly to non-violent crimes. On violent crimes, we are still far in front of them despite the huge drop we saw in the 1990s. For example, this DOJ study showed that the murder rate in the US is 5.7 times that of England, and the rape rate 3 times higher, while burglary and car theft are higher there than here.
And let's not lose sight of the issue here. The issue was your claim that those "liberal judges" appointed by Clinton had ruled in favor of "lenient sentencing" resulting in "crime waves" with "thousands of innocent victims". Yet crime dropped enormously during the 1990s and sentencing got harsher, not lighter.
I do not have the time to give you a detailed refutation to your ipsedixits - especially the last one about the int'l crime rates which was incredibly ignorant. I have refuted some of your major ones and explained another.
It's not the time you lack,I suspect, it's the evidence. The only claim on which you have any counter-argument whatsoever is on international crime rates, and that is A) not relevant to the many falsehoods you asserted in your article, and B) based on a poor study whose authors admit has a very high sampling error.
Ed Brayton at January 17, 2005 10:46 AM
But as any legal scholar can tell you, that power was abstracted to an absolutely absurd degree by a New Deal era case called Wickard v. Filburn. In that case, the Federal government argued that they had the authority to tell a farmer he could not grow wheat on his own land, for use solely by his own family, because by growing that wheat, he might not buy other wheat that might come from other states. And the Supreme Court accepted that reasoning, which allowed for a vast increase in Federal power to regulate virtually any aspect of our lives. With this weak standard, the interstate commerce clause may be applied to absolutely anything.
I have to say, I'm impressed that you know about Wickard v. Filburn, but I have to disagree with your characterization of the case. In point of fact, Filburn, a professional, farmer grew wheat that was not just used "solely by his own family." In the statement of facts relevant to its decision, the Supreme Court expressly stated that "It has been his (Filburn's) practice to raise a small acreage of winter wheat...(i) to sell a portion of the crop; (ii) to feed part to poultry and livestock on the farm, some of which is sold; (iii) to use sow in making flour for home consumption; and (iv) to keep the rest for the following seeding" (I've added the reference numerals) and that "The intended disposition of the crop involved here has not been expressly stated."
As to the second item stated, if Filburn had presented evidence that the disposition of the crop involved there had been intended for item (iii) and, possibly (iv), the decision might have been different. But, since there was no indication of the intended disposition of the crop, it was not unreasonable for the Court to conclude that at least some portion of the crop was to be used in connection with at least items (i) and (ii). As to (i) and (ii), given that Filburn was a professional farmer--although not necessarily garnering a significant amount of income from wheat sales, it is not unreasonable for the Court to conclude that the actions of Filburn, and all of the other "Filburns" that might have existed in the US, could very well affect interstate commerce.
That said, it strikes me that there is a significant difference between the Wickard case and the situation that Tremoglie is describing. In the Wickard case, there was a legal interstate market in wheat and products derived from wheat (and, in the latter, I include livestock). On the other hand, there is no legal interstate market in marijuana, given federal laws against such. Accordingly, if a person were to grow marijuana solely for his own use, he would not be suppressing legal shipments from other states. Nor would he be growing marijuana for shipment to other states, which might impact "marijuana farmer" in those states. What would the affect on interstate commerce be? The idea is patently absurd.
BTW, with reference to Tremoglie's
However that aside ask yourself this if a CA referendum made it possible for residents to possess shoulder launched surface to air missiles for self - defense use only and only purchased within the state by manufacturer within the state would the feds be able to prohibit this.
is also silly. A couple of years ago, the 9th circuit held that an individual in California who manufactured firearms solely for his own use within the state, was not subject to a federal firearms law because there was no interstate commerce involved. (I forget the caption of the case, but it was within the last year or two.) I'm sure that the 9th circuit's decision--which was based on recent Supreme Court precedent--was intended as a bit of a slap at the Supreme Court. I don't know what the current status of the case is--that is I don't know whether the government appealed the decision.
I have to say, I'm impressed that you know about Wickard v. Filburn, but I have to disagree with your characterization of the case. In point of fact, Filburn, a professional, farmer grew wheat that was not just used "solely by his own family." In the statement of facts relevant to its decision, the Supreme Court expressly stated that "It has been his (Filburn's) practice to raise a small acreage of winter wheat...(i) to sell a portion of the crop; (ii) to feed part to poultry and livestock on the farm, some of which is sold; (iii) to use sow in making flour for home consumption; and (iv) to keep the rest for the following seeding" (I've added the reference numerals) and that "The intended disposition of the crop involved here has not been expressly stated."
I have not read the decision itself, but I've read several legal analyses surrounding Raich and my recollection was that they said that the farmer grew wheat only for himself. Having said that, I did not go back and check to make sure my recollection was accurate, so I may simply be misremembering. I'm not sure it changes the overall analysis, however, since the effect on commerce is, in that instance, quite indirect if it exists at all. It still acts to make virtually any conduct in reach of the commerce clause.
That said, it strikes me that there is a significant difference between the Wickard case and the situation that Tremoglie is describing. In the Wickard case, there was a legal interstate market in wheat and products derived from wheat (and, in the latter, I include livestock). On the other hand, there is no legal interstate market in marijuana, given federal laws against such. Accordingly, if a person were to grow marijuana solely for his own use, he would not be suppressing legal shipments from other states. Nor would he be growing marijuana for shipment to other states, which might impact "marijuana farmer" in those states. What would the affect on interstate commerce be? The idea is patently absurd.
I agree with this. Even if my initial argument concerning Wickard is false, there are other good arguments why the commerce clause does not apply in Raich.
People usually discuss Wickard as if the wheat were purely for his own consumption, although as Raj notes that's not quite the case. The confusion comes from the fact that the Court essentially held that it didn't matter; their characterization of Commerce Clause power would reach Wickard's wheat even if he was raising it purely for his own consumption.
Colin at January 17, 2005 06:51 PM
One thing that one needs to recognize is that, although language in a court opinion may appear to be expansive, the language really does need to be read in light of the facts in the case. Until a few years ago, I had not re-visited Wickard since my Constitutional Law class almost 35 years ago. A couple of years ago, someone, on a message board, commented that Wickard could give Congress the power to regulate the number of tomatoes that an individual could grow in his back yard for his own consumption. (That's not exactly what was posted, but close enough. That sent me back to Wickard. And, based on the facts as stated in Wickard, the idea in the comment struck me as being a patently absurd reading of the case
Regarding the issue at hand, I note the following from the part that you quoted:
But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'
Given that there is no legal interstate commerce in marijuana, what "substantial economic" effect can there be in a person growing marijuana for his own consumption?