I have frequently seen it asserted recently that, even though African Americans don’t use drugs more frequently than whites and others, the war on drugs is locking them up at a wildly disproportionate rate. Now, of course one answer is that, even if use rates are the same, it doesn’t follow that the incarceration rates should be the same. People are typically locked up not for using but for dealing. And some kinds of dealing — for example, in open-air markets — are more likely to result in arrests than others. (And I have to note that most criminals are not drug criminals anyway.)
But my point today is just about the drug-use-rate claim. Take a look at table 1.19B here, which appears to be the most recent data from the federal agency that you’d expect to have the best data, namely the Substance Abuse and Mental Health Services Administration. The most relevant column is the one on the far right, since it is for the most recent year (2012) and the most recent use (past month).
As you would expect, the age group that uses “illicit drugs” the most is 18–25, and males use drugs much more than females. But look at the racial groups: Not much uniformity there either. That darn model minority, the Asians, are there again busting the curve for everyone else, with only 3.7 percent using, versus 9.2 percent for all groups, which is also the white total. But blacks are at 11.3 percent, meaning that they use drugs at a rate 23 percent higher than the general population and whites.
Lately marijuana drug-law enforcement has been singled out for particular criticism in this regard, but now look at table 1.24B. Same thing: The 18–25 year-olds are by far the worst, and males smoke much more pot than females. And the racial breakdown is the same, too, so that, for example, blacks use marijuana at a rate that is again 23 percent higher than whites.
My point here is not to defend every aspect of the war on drugs, but just to note one way (there are others) that the case has not been convincingly made that the war has been motivated and implemented with an eye on race.
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As advertised, the Senate Judiciary Committee had its hearings late last month on an execrable bill to negate last year’s Supreme Court decision in Shelby County v. Holder. Michael Carvin and Center for Equal Opportunity board member Abigail Thernstrom did a splendid job in explaining why this legislation is both unnecessary and unwise.
But the most entertaining part was when Sen. Sheldon Whitehouse (D., R.I.) said, and I paraphrase only slightly: “I’d like to make two points. First, we should advance in the spirit of bipartisanship. Second, the reason we need to advance is because of a 5-4 decision by Republican judges which is typical of other 5-4 decisions by Republican judges lately where they are trying to stack the electoral deck in favor of Republicans. And I’m not alone in feeling this way: Jeffrey Toobin, Linda Greenhouse, and Norm Ornstein all agree with me.”
Despite this eloquent rhetoric, the hearings suggested that none of the Republicans on the Committee is persuaded that this legislation is a good idea.
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I hope he won’t, but alas Senator Rand Paul (R., Ky.) has announced that he plans to introduce federal legislation to reenfranchise some felons. Senator Paul’s reasons for this are avowedly political (an olive branch from Republicans to African Americans); in my view, it is nonetheless bad policy. But here is the larger point: Congress has no authority to pass such legislation. And if Senator Paul proposes it, I am sorry to say that he has shown himself to be someone who —despite his strong claims to the contrary in other contexts — does not take the Constitution seriously.
The Constitution gives the states the authority to determine who can vote in elections, so long as they do so in a way that does not violate some other provision of the Constitution (for example, gender discrimination in voting). But there is no credible argument that disenfranchising felons violates the Constitution; indeed, the Constitution itself (in Section 2 of the Fourteenth Amendment) expressly contemplates the disenfranchisement of felons. My congressional testimony from a few years ago lays all this out; the Supreme Court confirmed this more recently in an opinion last year written by Justice Scalia that even the entire liberal wing of the Court joined.
Again, if Senator Paul takes the Constitution seriously, he will not introduce federal legislation that requires the reenfranchisement of felons. If he does introduce such a bill, then, with all due respect, voters must draw the appropriate conclusions about him and how seriously he takes his oath of office. I hope he reconsiders.
Now, after I laid all this out on National Review Online, I was gratified that Senator Paul responded to my criticism. Alas, however, his response was quite unpersuasive.
Senator Paul seems to think that states can decide who votes in state elections but that the federal government has the final say on who can vote in federal elections, but that is just not true. Again, the U.S. Constitution itself explicitly gives the authority to decide who votes in federal elections to the states, and the recent Supreme Court decision that he cites to the contrary — last year’s decision invalidating part of an Arizona voting law — is, ironically, the same one that I had cited because it confirms what I’m saying and rebuts Senator Paul’s position. See, in particular, the first two paragraphs of part III of Justice Scalia’s opinion, which notes that those guys Alexander Hamilton and James Madison also agree with me.
In fact, the only justice ever to support Senator Paul’s approach was the (idiosyncratic) Justice Hugo Black in Oregon v. Mitchell — using reasoning that was not only not joined by any other justice, but was either explicitly or implicitly rejected by all of them.
Finally, I’ll note that this is so clear, in fact, that even Attorney General Holder, when he called for the reenfranchisement of felons earlier this year, limited his plea to the states and did not call for federal legislation. With all respect, then, does Senator Paul take the Constitution less seriously than Eric Holder? Senator Paul has yet to introduce a bill, and I sincerely hope that he has reconsidered it. Doing so would demonstrate real character and real commitment to the Constitution, and I would applaud him for that.
