Senator Cory Booker’s bill to legalize marijuana is righteous and beautiful. It is well-timed and well-crafted. It is noble… and it is doomed.

That a progressive Senator would champion marijuana legalization, and that his bill would stand no chance of passing, highlights a deep and important problem in social democratic ideas about commerce, private property, and democracy. The purpose of this essay is to explain what the problem is. It would be good for thoughtful social democrats to attend more closely to it. And the rest of us, who live in a political world that an earlier generation of progressives created, may do well to give this conundrum some thought ourselves.

A brief description of social democracy

First, I offer a short account of social democracy. I hope it will pass the ideological Turing test as judged by social democrats and/or progressives today.

Contrary to what conservatives and libertarians may say, people do hold private property in a social democracy. They are also permitted to do many different things with their property, as long as they aren’t using it in ways that are judged to harm others.

The state also owns much property. States always do, but the social democratic state uses its property to provide some goods and services to the public. In practice the state almost always supplies healthcare, owing to economies of scale and risk management. Usually the state also runs major utilities and many forms of transit. Sometimes it also runs some heavy industries. But the social democratic state never claims, by ideology or otherwise, to be entitled to own everything.

Social democratic states regulate. Social democrats cast their preferred state as the umpire of the otherwise lawless capitalist economy. They permit labor and management to bargain on fair terms with one another.  They decide whether a given trade practice is fair or foul. They make sure that our food and drugs are pure, about which more below.

A social democracy always has an extensive welfare state. It aims to soften the effects of bad luck and to keep the less fortunate in a situation that allows them a range of basic human dignities and capacities. It’s accepted that the welfare state will not be perfect; nothing in life ever is. But the public supports it as a necessary endeavor, in part because private charity would not suffice alone.

As with state economic production and regulation, the state provision of welfare may be more or less extensive without the society ceasing to be a social democracy. In all three cases, there’s a range of acceptable social democratic outcomes.

That latitude — and that measure of liberalism — exists because the distinctive move of social democracy is to maintain an extensive market economy, but also to manage it, informed by the democratic process. The social democratic state provides some goods, some regulation, and some measure of welfare in response to democratically expressed demands regarding the economy. The satisfaction of these demands is part of how the social democratic state justifies itself to the public.

What matters, then, is not the extent of the state, but the method — democracy — by which the society decides which things the state should handle, and how.

Social democracy doesn’t need a revolution to get started, and — absolutely unlike communism — regular, free, fair, and democratic elections are a key part of the system. Multiple political parties are always allowed, including those that are center- or even far-right. Press freedom is extensive and necessary: Citizens must be well-informed for the system to work. Politicians and other powerful actors must also be held accountable.

In short, social democracy tasks the democratic process with setting socially acceptable limits on commercial and private property rights for the sake of the public good. These limits protect consumers from unscrupulous business practices, curb the power of large firms and monopolies, prevent businesses from subverting the social order, and provide essential services for the least fortunate.

On American social democracy in particular

By the above criteria, the United States is a social democracy.

We should not deny this simply because, for example, the United States lacks fully socialized healthcare, or because its welfare state is less generous than Sweden’s. These features may make us a stingy social democracy. Correcting them might make us better off, or truer to the type. But the methods by which we would correct these alleged shortcomings are well in place, and they are social democratic in nature.

Indeed, no one doubts that the U.S. political process could yield a larger welfare state, or even fully socialized healthcare. Conservatives certainly don’t doubt it; they are (properly, by their lights) terrified of it. Progressives meanwhile cast a more ample welfare state as a realistic political goal, which of course it is. The questions here do not concern whether we have a social democracy. These are a type of question that only occurs within one.

The United States, though, has not always been a social democracy. Conservatives and libertarians correctly note that social democracy is far removed, for example, from the system found in the Constitution just following the Civil War amendments. For much of its existence the U.S. Constitution protected an extensive set of property and contractual rights that were incompatible with a nationwide social democracy.

To get an idea of how things used to be, consider the 1936 case Carter v. Carter Coal Co. A paradigm of the former constraints on economic regulation, Carter held that:

[A] so-called excise tax, imposed by the Act, of 15% … subject to a draw-back of 13 1/2% allowed to those producers who submit to the price-fixing and labor provisions of the Act, is not a tax, but a penalty to coerce submission, and cannot be upheld as an expression of the taxing power.

And

The provisions of the Act looking to the control of the wages, hours, and working conditions of the miners engaged in the production of coal, and seeking to guarantee their right of collective bargaining in these matters, are beyond the powers of Congress…

And

Since a mine owner, by refusing to accept the regulatory provisions, would incur a prohibitive tax and be deprived, by other provisions of the Act, of the right to sell coal to the United States or to any of its contractors for use in performing their contracts, the regulations are, in fact, compulsory.

And

The proposition… that the power of the federal government inherently extends to all purposes affecting the Nation as a whole with which the States severally cannot deal, or deal adequately, and the related notion that Congress, entirely apart from those powers delegated by the Constitution, may enact laws to promote the general welfare, have always been definitely rejected by this Court.

It’s a bit hard to imagine that we live in the same country and are governed by the same Supreme Court.

How’d we get where we are today? The key turning point came with the New Deal looming large in the background, and with cases like Carter still standing in its way. Congress and the president asserted a much more robust interpretation of the Constitution’s commerce clause, one that empowered the federal government to regulate economic affairs in ways much more in keeping with the theory of social democracy we’ve laid out above. And the Supreme Court backed down. The full story is complex and has been better told by my colleague Trevor Burrus.

The New Deal case known as Carolene Products presents a good picture of how the new order was intended to work. Rather obliquely, the court held that

regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.

In plain language, the courts would presume that laws affecting commerce have a rational basis. They would do so because legislatures are responsive to public demands through the democratic process and thus will be rational as well. Under the distinction drawn in Carolene Products, courts would safeguard the democratic process itself by strictly scrutinizing government actions regarding insular minorities as well as the rights of speech, assembly, voting, and all others directly affecting the practice of democracy.

But for all the times when new laws would restrict mere economic rights, the Court held that representative democracy could presumably regulate itself: Democracy was the voice of the people, and thus it was unlikely to err. And if it did err, those errors could be corrected politically. Carolene Products offered a roadmap for social democracy, one that would be followed with only a few exceptions down to the present day.

But there’s a big problem with this roadmap: The advocates of social democracy badly want their favored system both to be a decisionmaking process — the democratic supervision of capitalism — and to deliver a set of results the public services, regulations, and welfare that we alluded to above. The preferred results set, though, is subject to change over time, and it’s not sufficient to assert an identity between those results and “true” or “real” democracy. Real democratic outcomes can sometimes appear downright stingy. Or worse.

This is your social democracy on drugs

The next step in my argument is that the criminalization of marijuana, and indeed all recreational drugs, is thoroughly grounded in the norms of social democracy.

As my colleague Trevor Burrus correctly asked: Why was an amendment needed to prohibit alcohol (in 1919), but not marijuana (in 1937)? The answer lies in the reinterpretation of the Constitution’s Commerce Clause that came in the intervening decades: The legislature would enjoy broad powers of regulation, the courts now held, because democracy knew what it was doing and would correct any errors.

Nowadays, with the added legal doctrine of delegation to the executive, the Food and Drug Administration and the Drug Enforcement Administration can add items to the list of prohibited substances literally whenever they please, without needing any congressional action at all. Democracy, we are told, will correct them if they ever get anything wrong.

America’s elected representatives have never reversed a prohibition made by either of these agencies.

We may be forced to assume, then, that the War on Drugs in all its particulars is a result of social democracy in practice. This isn’t some glib attempt to plant (the war on) drugs on the left. This is the actual legal history of how the War on Drugs became possible in the first place. Judges nowadays routinely declare that the protection of property rights, as in drug cases, is a job for the legislature, and not for them. Thus they give the War on Drugs a pass. Consider the case Gonzales v. Raich (2005), in which we read:

Respondents in this case do not dispute that passage of the [Controlled Substances Act]… was well within Congress’ commerce power….. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents’ challenge is actually quite limited; they argue that the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause.

And

We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.

The opinion in Raich relied directly on the 1942 case Wickard v. Filburn, in which the Court held that even activities with only an indirect effect on interstate commerce may nonetheless be regulable by the federal government. Once again, this was thanks to a social democratic reading of the Commerce Clause. And once again, we are asked to trust that democracy would never make any serious or longstanding mistakes, such that the courts might need to intervene.

Thus we reach the conclusion that the federal government may prohibit even the completely noncommercial production and possession of medical marijuana, because those activities indirectly affect the interstate commerce in marijuana, which the government has chosen to regulate (by prohibiting).

Progressives often tell me that in a democracy like ours, property rights should be limited by the principle of majority rule. It bothers me when they do not consider that the War on Drugs is one of the most obvious and straightforward implementations of their principle. The legal history is there for anyone to read, and it’s as clear as it could possibly be. It is not an aberrant result. The War on Drugs is social democracy working as intended. From the prohibitionists’ point of view, recreational drug dealing is exactly the sort of shady commercial enterprise that ought to be regulated out of existence, for the good of the people.

One response to these charges is to blame the electorate, and not social democracy: The War on Drugs, or some functional equivalent thereof, is just what we should expect when formal discrimination is outlawed, but when we give the vote to people with the opinions of Jeff Sessions. What we need are not better procedures, but better voters.

That may be so, but in the meantime we’re left with at least one case, and not a minor one, in which social democracy has delivered a bad outcome for millions upon millions of people, including a disproportionate share of the poor and minorities. It’s not just that social democratic theories about private property have some airy philosophical consistency problem. People are rotting away in prison right this minute, and their plight owes directly to the comforting idea that social democracy wouldn’t make a mistake like that.

A principle of differentiation

If a system can fail simply because the wrong people inhabit it, are we really justified in exonerating the system? Or might we consider that the easiest path to justice is to modify the system?

It could be that property rights at least sometimes need more than the token supports that democracy provides. Even at its best, democratic oversight is neglectful in some predictable ways. And democratic oversight will always be the most neglectful for those who are already the least privileged in society. Even facially neutral laws will always weigh heaviest on the marginalized, and it doesn’t matter whether these laws concern “mere” property rights. They have the power to oppress all the same.

It is reasonable to object that the War on Drugs is cruel, unfair, and even to speak the language of recent constitutional law lacking in rational basis. But to do so is to leave the logic of social democracy behind, and to head off in search of some new set of principles, orthogonal to social democracy, which we must convince the electorate to adopt as well. This could be a worthwhile endeavor, even at the expense of theoretical elegance. But it does suggest that social democracy, as described in my opening section, is incomplete, perhaps radically so.

One productive question for the theoretically minded may be as follows: What is the principle of differentiation here? If I were a space alien viewing the legal logic of the War on Drugs, and comparing it to Carolene Products and the history of post-New Deal commerce regulations, I don’t think I would know how to tell them apart. The one seems exactly like the other. But now come today’s progressives, who correctly see that the War on Drugs is an atrocity.

How do they separate the two? That’s not a question for me to answer. I’m no progressive. I’m a libertarian, and I would be happier with a much stronger set of private property protections all around. The protections I favor would make the War on Drugs completely impossible. In my “best” world, the question of drug prohibition never arises. But it does arise in this world, and someone would do well to answer it.

A less propertarian approach than my own might still concede that democracy doesn’t always craft wise laws for commerce or private property. Perhaps some additional standard is in order beyond merely commanding a legislative majority. Perhaps that standard could be maintained by an independent branch of government, like the judiciary, that would watch over a relatively constrained set of property rights even when majorities wanted to curtail them.

Working out the details of that position would fly in the face of many decades of progressive jurisprudence. I have no stomach for attempting it myself, in light of my confessed propertarian leanings. Worst of all, it would probably require rethinking many things besides the War on Drugs. Perhaps a living constitutionalist could still coax his idea of the constitution to develop in that direction. I don’t know.

Of course the electorate could end the War on Drugs all by itself, but the fact remains that it hasn’t. Americans last year both legalized marijuana in some places and also elected a vigorous drug warrior to the nation’s highest office, one who promised to escalate the never really flagging battle against this form of property. For the good of society, my dear progressives. For your good, because while property rights are permissible in theory, some types of them should not be suffered to exist.

Yet even a democratic reversal of the War on Drugs would be inadequate in one key respect. The War on Drugs as we understand it today is just one instance of a larger type of failing to which social democracy seems prone. We have already mentioned another, the prohibition of alcohol, and even a repeal of the Controlled Substances Act might not prevent, say, a War on Tobacco, or a War on Sugar. Each could be of similar ferocity, given a new generation of activists. Under a social democracy as it is understood here, it remains unclear what might restrain these crusades, particularly if the electorate were convinced that tobacco, say, was an evil. Perhaps tobacco is an evil: But how much are we willing to knock down to get at it? Democracy seems to answer such questions badly, if at all.

As a final suggestion toward a workable compromise, we might establish more robust protections, but only for certain types of property, for example for property possessed by a private individual, and particularly if it is connected with a place of residence. A glance in the direction of Semayne’s case (1604) might be useful. As Edward Coke expressed its holding, “the house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.” And thus official violations of the home have been looked upon with great suspicion by the judiciary.

Until, that is, the War on Drugs, which did much to erode the protections against search and seizure that historically protected dwellings from the state. We need not endorse the so-called Castle Doctrine’s implications for the armed defense of the home to agree that perhaps other protections of the home, namely legal protections against the state, may be desperately needed.

Reviving protections against domestic search and seizure seems potentially more amenable to social democratic thinking than a broader doctrine of commercial non-interference. Libertarians will find this compromise unpalatable; I certainly do. But “social democracy plus a heightened protection for domiciles” could be an improvement over unfettered social democracy, and it would forestall many as yet unknown abuses that are similar in kind to the War on Drugs.

My social democratic friends, you’re allowed to be deeply skeptical. I am proposing an addendum to your picture of the way that government ought to work. Worse, it’s clunky. But for all its theoretical inelegance, it might help solve a problem that you and I agree is pressing.

There will be difficult line drawing ahead. Exactly what should count as corporate, and what as domestic? Judges will have to render some hard judgments. But they do this already, in deciding questions like what counts as income, or whether a given organization is a religion, or whether criminal intent was present when a deed was done. Afflicting our comfortable judges with a bit more work seems a small price to pay when it means comforting our afflicted citizens.

Might you charge that this idea of mine is a camel’s nose in the tent, and that further restrictions on the social democratic regulatory process are sure to follow? You might, but whether these things come to pass is not for you or for me to decide. The future will figure out what to make of them; as your distant progenitor famously said, the Owl of Minerva flies only at dusk.

Will I fight to expand protections on commerce and property? You already know that I will. But I would have done so in any case. More urgent is the following question: Will others, armed with social-democratic methods and the opinions of Jeff Sessions, still oppress the weak by regulating their property? Once again, we already know that they will. Perhaps you, with an insider’s understanding of the social-democratic ideal, will do a better job of fighting them that I could. I don’t know.

What I do know is that I was born into a world where smoking a joint is a serious offense, and where addicts are treated like criminals. With only a few exceptions, that’s where things still stand today. And it’s all done in the name of social democracy’s power to regulate capitalism. So I appeal to you for help, in the name of all that you hold dear. I charge you to fix the system that you’ve built.

 

Featured image is No More Drug Warby Neon Tommy


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute, the editor of Cato Unbound, and the author of Technology and the End of Authority.

Comment

  1. Maribou August 28, 2017 at 10:07 am -

    My personal way of squaring the circle (which I recognize is a circle, and thank you for this much stronger reframing of your argument) has generally been “social democracy with extreme bodily autonomy, leading to restrictions on what can be done about private action” – a higher bar (perhaps a hard NO) for claiming that anything a person does *to themselves alone* can be criminalized by the state, and that merely providing the means for someone to do something to themselves alone, or doing something to them that they themselves freely consent to, cannot be criminalized by the state. Worked against by the state using other means, mayyyyyyyyybe – that gets into tricky territory of who gets declared insane, or ill, against their will, for example – but I’m not willing to outlaw for eg state-sponsored needle programs.

    I’m initially dubious of the whole “man’s house is his castle” paradigm for the very specific reason that it has, historically, been even more toxic than the drug war (yes I realize this is a very very large claim). For hundreds (thousands? not familiar with pre-1200) of years, in Western civilization, that argument has used to justify domestic violence (all the way up to murder). On some level, the social norm (regardless of law) that whatever happens in a person’s house is none of the state’s business is *still* used to excuse child abuse. Of course, when it’s not, there are a jillion abuses of domestic violence laws by the state, too.

    Historically, even Carry Nation was claiming to be trying to stop domestic violence- it seems likely to me that Prohibition was in part fueled by that desire, the desire to do *something* about the way in which people (particularly people with fewer legal protections, which at that point was the case for *both* women and children) were at the whim of the most powerful member of the household.

    I have yet to see a strong defense of private property that acknowledges how the concept of private property has been used to reify this specific kind of violence as outside legal bounds, both explicitly before the current 100 years, and as an excuse to look the other way even when laws have changed, in the past 100 – and makes a convincing-to-me argument that it’s still worthwhile as a founding principle.