A Great Issue for Federalism

--by Sebastian

I read Kevin Drum almost every day, and today he hit a bunch of issues that I think are worth thinking about.  One of them is this one.  It talks about Obama's vexing about face on medical marijuana.  In light of recent discussions, it strikes me that this is a perfect area for federalism.  The federal government could choose to take itself out of the field and let states deal with it.  It is a highly contested area, with lots of possible solutions.  Why not let different states try different things?  If you want to live in a marijuana-free state, fine.  If not, also fine.  Is marijuana really so important that we need a broad national strategy to deal with it? 

Instead, look what is happening:

As fear of federal prosecution lessened, more states began adopting or considering medical marijuana laws; where the practice was already legal (as it was in California), there was a boom in the marijuana trade. Operating in a grey market between the federal prohibition and untested state rules, dispensaries of all kinds operated without much supervision.

....Though law enforcement officials could not point to any commensurate increase in crime, all that activity made the federal government uneasy: It realized that tacitly allowing states to regulate medical marijuana had far-reaching consequences that it wasn’t entirely comfortable with

Now isn't that interesting.  The feds couldn't find any evidence of the alleged purpose for regulating marijuana (crime) but nevertheless they felt that letting it out of their control made them uneasy.  So....the Obama administration decided to reassert their authority and crack down.  That is a classic centralized government fear and a classic centralized government response.  It doesn't have to be that way.  We could have states that decide they don't want marijuana and other states that decide they don't care.  Like many things, marijuana just isn't important enough to require a national government response.  You could have your opinion on it, and I could have mine, and different states could have legislation that dealt with it differently. 

That is the vision our United States was founded on, and we could probably use a little more of it. 

Comments

[russell]

With one minor quibble, I'm in complete agreement. Not just regarding marijuana, but regarding drug laws generally.

The quibble:

That is the vision our United States was founded on

I'm not sure there was anything like unanimity among the founders on how weak or strong the federal government should be.

I'm not sure they have any particularly clear guidance to offer on the topic. As far as I can tell, they were as confused about it as we are.

[Laura Koerbeer]

Me too. I hate the war on drugs. Washington is a medical marijuana state. I'm not sure what the law says exactly but there are people who have licenses to grow it.

[Hartmut]

I think we can agree that banning marijuana was not part of the US founding vision. ;-)

Some of the founders seem to have grown their own supply of weed.

On the very narrow topic of marijuana I'd agree that most of it should be left to the states, although the feds could set some minimum standards. A possible line of division could for example be the THC content giving right of regulation to federal agencies, if a certain level is exceeded*. I leave the topic of interstate commerce out here since that is a question of its own.

*Over here there was for a long time a total ban on planting hemp. These days hemp may be planted provided the THC content does not exceed a very low level (roughly: if a joint has to weigh 100 pounds to get high, then the state assumes that you do not grow the stuff for hallucinogenics).

[Brett Bellmore]

"I'm not sure there was anything like unanimity among the founders on how weak or strong the federal government should be."

While that IS technically true, it's worth remembering that vast range of opinion covered the gamut from something which would be today attacked as tantamount to anarchy, to something an actual anarchist would be genuinely comfortable with. Even Hamilton, who was something of a monarchist, never ventured to suggest a federal government with as comprehensive power over the lives of individual citizens as we have today.

Transplant any of the founders to today's US, and they'd shortly be imprisoned for seditious conspiracy.

As for those who though Obama was seriously going to permit semi-re legalization of even pot, what's that Glen Reynolds is always saying? Oh, yeah:

"Another rube self-identifies."

[Julian]

Two reasons that I can think of for medical marijuana not being good issue for federalism:

1) drugs already cross borders very easily, so allowing the legalization of marijuana in only some states would still significantly affect the black market in other states; those other states would be unhappy.

2) we don't have state drug laws or agencies, we have the FDA; every state that chooses to legalize marijuana would have to fund a new agency to regulate it. State-by-state regulation of marijuana wouldn't benefit from the economy of scale that the FDA does.

[Julian]

I guess you could have the FDA step in and regulate on behalf of those states that do want to legalize medical marijuana, but then you have people upset that federal money is being spent on it.

[Sebastian]

The thing about it is, there is already a very significant marijuana trade in all 50 states (up to and including the very hard to get to states of Alaska and Hawaii). The nationalization of drug laws hasn't stopped that.

Further we have an excellent example of the whole thing in booze both in the negative example of the Prohibition, and the positive example of dry counties now.

I'm not sure why you think we would need to deal with the FDA, states are perfectly capable of doing safety regulations on their own. And the DEA leans heavily on local law enforcement already, so heavily in fact that if local law enforcement didn't help them they would be severely hampered.

[wj]

So Julian, how exactly does that differ from alcohol? A drug with a demonstrably greater impact on crime. A drug which is illegal in some counties, and restricted (to state-owned stores) in others. Yet can be (and is) easily transported across state and county lines.

The fact is, there are people who just want to run everybody else's lives. Enough of them to be electorally significant, apparently. And, while sex is apparently going to be prominent this electoral cycle (at least as long as Santorum is in the race), drugs are the biggest area.

Not only do we (or at least a sufficient minority to block change) insist on having the federal government involved at home. We have a national government which vigorously strong-arms other countries around the world to make their laws closely conform to how we think drug laws ought to be.

[Brett Bellmore]

It differs in that, in the case of the first Prohibition, our government came to it's senses, and backed down. While in the case of the second Prohibition, it got stubborn, and doubled down. So the harm from the second Prohibition has been considerably worse, and longer lasting.

[Julian]

"The thing about it is, there is already a very significant marijuana trade in all 50 states (up to and including the very hard to get to states of Alaska and Hawaii). The nationalization of drug laws hasn't stopped that."

We have N tons of marijuana sold in the US every year, maybe nationalization has "stopped" that level from rising to 1.5N. Plus, we're discussing legalization in some states while keeping it illegal in others. States where marijuana remained illegal would be unhappy if the flow of marijuana into their jurisdiction; that reaction might be irrational, but it would make the solution that Sebastian makes politically unusable.

"I'm not sure why you think we would need to deal with the FDA, states are perfectly capable of doing safety regulations on their own."

I think we'd need to deal with the FDA because marijuana is a drug and as far as I know most states don't have the infrastructure to monitor drug testing, because none of them do it at all, because the FDA currently handles it. California might be an exception.

"Perfectly capable" is doing a lot of work in that sentence. I may be "perfectly capable" of becoming a neurosurgeon but there is a transaction cost to do so.

"So Julian, how exactly does that differ from alcohol?"

Alcohol is legal in every state. There is no meaningful political support for banning it in any state that I know of. Marijuana is less politically viable for legalization.

Sebastian, Brett, and WJ are being too rational (not a pure compliment) about this, I think. You guys imagine, I think, that federalism would work out because everyone could preference-sort and end up in a state that had the drug laws they like.

But "voting with your feet" can be expensive or undesirable to move for other reasons, and people also remain unhappy even about policies that have no appreciable effect on them and may be happening on the opposite side of the country: see marriage, gay.

[Julian]

Also, different states having different purity and safety standards for marijuana, or any drug, would lead to states that have high standards facing an influx of lower-grade or possibly unsafe marijuana, and their regulations suddenly aren't doing much work.

[russell]

All arguable reasons for why devolving marijuana regulation to the states would be problematic.

Would it be more problematic than chartering corporations, or operating Medicaid programs, or defining minimum standards for participating in various public welfare programs, or defining school curricula, or defining standards for whether a vehicle is safe to operate or not, or licensing people to own and carry a weapon?

All things that we do state by state now.

I don't know. To be honest, it doesn't seem any more or less complicated than any of those things.

Marijuana is an interesting case because our current attempt to outlaw it is arguably one of the most harmful public policies we have. It's a ridiculously bad policy, both on principle and in its execution.

So, my vote is get rid of it. And no, I'm not a pot smoker, I have no dog in the fight other than observing what a freaking waste of time, effort, money, and human life our current policy is.

Some states or other jurisdictions may find that too liberal an approach. So, fine, let them regulate it as they will, if they will. Like they do with lots and lots of other things.

It might turn out to be not worth their while, in which case good riddance to it.

[Brett Bellmore]

I think it comes down to perhaps the most important difference in conservative and liberal reasoning: Conservatives, by and large, are trying to minimize the worst case, at the expense of making the best case unachievable. Liberals are trying to maximize the best case, at the expense of making the worst case achievable.

If you let states make their own policies, they might not all have the best policy, so liberals object to this foreclosing any real chance of everything turning out best possible.

But, if the federal government makes all policy uniform, it may very well be uniformly bad, the worst case conservatives try to avoid via federalism.

[wj]

@Brett 12:29 PM:
Amen, brother, amen!

[Julian]

"Would it be more problematic than chartering corporations, or operating Medicaid programs, or defining minimum standards for participating in various public welfare programs, or defining school curricula, or defining standards for whether a vehicle is safe to operate or not, or licensing people to own and carry a weapon?"

Well, not that my intuition is worth much, but monitoring the safe production, storing, and distribution of a drug seems very different from those things you've listed. Drugs, especially those used as often as marijuana, get bought and used much more than guns. It might be the case that people would participate in marijuana purchases than partake of welfare. Improperly administered school curricula cannot poison or sicken thousands of people in several weeks.

I don't know how states that currently allow medicinal marijuana monitor their supplies, and I don't know how much it costs, but I imagine that having a regulatory regime spring up for marijuana de novo would be expensive, though maybe taxes on the drug could pay for it.

Regardless of whether marijuana is uniquely different from the programs you've listed, it is certainly additional. Could states afford to regulate marijuana right away, at least before they've begun to break even on the hypothetical taxes?

[Brett Bellmore]

Julian, we're not talking here about a synthetic drug where, if you screw up the synthesis, you might have a side reaction cause some toxin to be produced. This is a natural drug, like caffeine. The level of regulation required is no more than that required for tea or coffee.

Most of the current problems we've seen with pot have been consequences of the drug war, like toxic herbicides being sprayed on a crop, and it being quickly harvested in response. Legal pot would be far less problematic.

The need for comprehensive regulation is vastly exaggerated, IMO.

[Sebastian]

"Well, not that my intuition is worth much, but monitoring the safe production, storing, and distribution of a drug seems very different from those things you've listed."

If we were talking about a dangerous drug like cyanide you might have a point. But in reality we are talking about a remarkably safe substance, marijuana, which isn't nearly as dangerous as say Tylenol (super easy to cause permanent organ damage) or Aspirin (a noticeable blood thinner). We are talking about something that is safer than the notoriously unregulated caffeine. The toxic dose of marijuana is more than you can smoke without passing out.

I don't even smoke marijuana, but I can see almost nothing legitimate about trying to restrict it at all, much less engage in the ridiculously overblown, and super-damaging-to-civil-liberties drug war. The idea that cops can break down your door without a warrant because they think they might have smelled pot (or will claim to have smelled pot) is ridiculous.

[Sebastian]

"We have N tons of marijuana sold in the US every year, maybe nationalization has "stopped" that level from rising to 1.5N. "

First of all, so what?

Second of all, I seriously doubt it. Pot is notoriously easy to get in the city, the countryside and the suburbs, suggesting that the limit to the amount sold is much closer to the demand side than the supply side. I.e. people are getting pretty close to the amount of pot that they want already. But even if it when from N to 1.5N, if the illegality and therefore crime associated with it vanished because we made it legal, who cares that the amount used went up? The social damage went way way down.

[russell]

Improperly administered school curricula cannot poison or sicken thousands of people in several weeks.

?!?!??

I don't think very many folks have been sickened or poisoned by marijuana use. With the possible exception that Brett notes, that of folks consuming MJ that has been poisoned, deliberately, as part of some weird drug control effort, to either kill the plant or discourage its use.

Marijuana has been used, widely, for both medical and recreational purposes for thousands of years. It was commonly used in this country, safely, for both medical and recreational uses, with no particular regulation, until the 1930's.

It requires a program of careful state oversight about as much as chamomile, or Kava root. Actually, Kava root is probably more dangerous, if it's not properly prepared you can wreck your liver.

There are no doubt examples where a lot of the concerns you're raising are relevant, but MJ is not really one of them. Sebastian has chosen his test case for federalism well.

[liberal japonicus]

I think an answer can be discerned by making the following changes to the statement

I don't even smoke marijuana get to do it all that much, but I can see almost nothing legitimate about trying to restrict it at all, much less engage in the ridiculously overblown, and super-damaging-to-civil-liberties drug war on sex.

This is not to ridicule Sebastian's sentiment (nor to make a comment on anyone's sex life, especially my own), but attitudes towards drugs are a lot like attitudes towards sex. You want to have some restrictions, but a lot of them are more than a bit overzealous. Which kind of points to the problem with assigning this to federalism. If folks have such an irrational, visceral reaction to it, having folks doing it next door is not going to be something you really can simply ignore, unfortunately, no matter how logical it would be to do so.

[Hartmut]

One thing where THC is a bit more tricky than CH3CH2OH is that with alcohol there is a rather straight connection between consumed amount, blood level, effects on behaviour and degradation over time (pathological alcoholics are a bit more complicated). To my knowledge the same is not true for THC. No 'x hours after consuming amount y the effects will have disappeared'. And there seems to be no easy gadget like the breathalizer to check on the spot. So, for safety related activities (driving cars, handling machines etc.) this unpredictability could mean trouble. Otherwise I'd say similar rules for DUI should apply. I also would set the legal age for consumption rather high since THC seems to have negative effects on the developing brain but not the adult. Also a proven effect of THC is to hamper memorization for a significant time period after consumption, so students should beware and abstain at least a month before exams. All of this does not justify a ban any more than it did for alcohol (we know how that experiment worked).

[bobbyp]

So the harm from the second Prohibition has been considerably worse, and longer lasting.

A harm that, unsurprisingly, breaks down along racial lines. Funny how that works at any level of government. Automatically trotting out states' rights as some sort of universal panacea for all that ills us does not sway me in the slightest.

As with most things....it depends.

[sapient]

I'm hugely in favor of legalizing marijuana (for adults only) at the federal level. I wouldn't be averse to states going forward first to "experiment" with legalization, but don't really think that it's all that helpful in the long run to have multijurisdictional policy about such things. (The alcohol variations are annoying for a lot of reasons - it's not really true that beliefs about alcohol vary that much among jurisdictions - most of the laws vary because of quirky historical economic vestiges from the aftermath of prohibition.)

Marijuana has been used, widely, for both medical and recreational purposes for thousands of years. It was commonly used in this country, safely, for both medical and recreational uses, with no particular regulation, until the 1930's.

That's true, but the political act of "legalizing" it, or sanctioning something that hasn't been legal for quite awhile, brings to the table its safety with regard to driving. The world has changed substantially since the 1930's, and the anti-vice people use driving as an anchor for all of their objections. If, say, Obama were to decline to enforce laws criminalizing marijuana, anybody causing an accident when driving-while-high would immediately supplement his opponent's reelection effort. Whatever bad thing ever happens when someone is smoking weed is going to (for awhile at least) be a political liability to any politician who comes out in favor of legalizing it.

That's just a reality that people who have more urgent priorities don't really want to have to manage. The only thing that "federalism" helps with is to increase the chances of someone taking it on.

Sure, federalism has some (very narrow) purpose. But all in all, most people don't think of themselves as citizens of their particular state, so they don't really prepare themselves to contend with different laws when the drive an hour down the road. I am against anything that encourages people to identify themselves as a "citizen of Virginia" or a "citizen of Massachusetts" rather than a citizen of the United States. In my experience, the more provincialism, the more racism. Let's not go back that way.

[russell]

brings to the table its safety with regard to driving.

It's already against the law to drive while impaired due to use of substances, independent of the legality of the substance.

There are lots of things you can't, and shouldn't, do while you're high, for whatever reason.

Salvia divinorum is legal in most jurisdictions, but nobody is recommending that you drive a car while under its influence.

Whatever bad thing ever happens when someone is smoking weed is going to (for awhile at least) be a political liability to any politician

It's a damned shame that no politician has found it to be a political liability whenever some kid finds themselves assaulted or killed while doing time in prison for some dumb-@ss marijuana offense.

Or, just doing hard time at all, for that matter.

There's always some very good practical reason to not do something that needs doing. Good political leaders do the right thing anyway. That's what "leadership" is.

most people don't think of themselves as citizens of their particular state, so they don't really prepare themselves to contend with different laws when the drive an hour down the road.

Maybe my perspective on this is due to living in New England, where six states other than my own are within an hour or two of driving.

But IMO, or at least my experience, folks who are in a situation where they have to pay attention to different laws in different jurisdictions get used to it quite readily, and take it in stride.

[Sebastian]

"To my knowledge the same is not true for THC. No 'x hours after consuming amount y the effects will have disappeared'. And there seems to be no easy gadget like the breathalizer to check on the spot."

Back before we had breathalizers we used to have rules about measuring impairment. For various reasons which I don't have time to go into now I'm not largely convinced that getting away from that to the BAC tests was an actual improvement, though it did at least have the positive outcome of making it slightly harder for the police to lie about the whole thing when they stopped you.

But I wonder if the breathalizer thing for MJ is really just a function of the fact that at the moment we just need to test for its presence to smack you down with the full force of the law. Is it that the test is scientifically non-feasible, or just that it has been technologically unneeded for our current regime. Who would currently buy an impairment test for MJ when it would have no legal force?

bobbyp "A harm that, unsurprisingly, breaks down along racial lines. Funny how that works at any level of government. Automatically trotting out states' rights as some sort of universal panacea for all that ills us does not sway me in the slightest."

I try to take you seriously, but when you say things like this I wonder if you're just joking. First, I don't believe that anyone is suggesting states' rights as a universal panacea. In fact I'll go on record right now and say that states' rights [probably] won't cure cancer. But second, if you believe what you're writing there, so what? If it is the case that harm along racial lines appears at all levels of government, big or small, why mention it at all in this discussion? If true, your statement is neither an argument for or against it.

You would have been better off suggesting that there is something about states rights which always makes it worse for black people than national level rules--and then cited Jim Crow laws. Of course, as you point out, the current national laws fall very heavily on black people--far worse than state rules did, so for purposes of drug laws you'll have to rely entirely on the Jim Crow history rather than looking at the national-level present. But at least that would make sense as a position.

[sapient]

I'm just wondering: Federal Government versus "federalism" (state government) versus counties, cities, families, people....

What is this about, actually? Finding the smallest common denominator?

I'm about cross-culturalism. I think it's absolutely great to go to another country and eat mostly the food from that place. Nice. But to meet people who flatly refuse to eat food from any other place? Interesting, but kind of creepy too.

I mean when you distill it into what really happens, it's all about blue-eyed people not really wanting to pollute themselves with brown eyes. Not to mention skin.

How much provincialism do you really want to have?

"Federalism" - local control. Cool. Sweet. Excellent. I might even try it myself. Maybe I'll even be a libertarian. Because I'm happy with creating my own laws. Cool. I'll just make my own universe. Just me and mine.

[Brett Bellmore]

To me it's a rule of law issue. Like it or not, we have a constitution, supposedly the highest law of the land, which sets up a federalist system.

We either have a federalist system, amend the Constitution to no longer set one up, or have a government which routinely flouts the highest law of the land.

I personally don't find that third alternative very palatable, though it's the situation which actually prevails.

[bobbyp]

I try to take you seriously, but when you say things like this I wonder if you're just joking. First, I don't believe that anyone is suggesting states' rights as a universal panacea. First, I don't believe that anyone is suggesting states' rights as a universal panacea.

Hey, hold on a darned minute. You're the one who brought up the vision thing....

I give you Ron Paul (a general case).
I give you Brett Bellmore (he always sneaks it in...a particular case).

In the instance of drug policy, perhaps OK. I'm very much ok with legalization. You still have issues of purity/health that should be handled at a federal level. Federal taxes still apply to tobacco and alcohol I believe. For an interesting and opposing view of drug policy from a liberal perspective...go visit Reality Based Community. Brett knows the place.

On race....not so much.

Like I said. It depends. Remember, slavery was part of the founding fathers' vision. Just sayin'.

[Brett Bellmore]

Who said anything about it being a universal panacea? Restoring the rule of law is the start of fixing things, not the end.

And, note, I offered two ways of restoring the rule of law in this country. I might prefer the constitution we have now being enforced, to it being amended to agree with practice, but either would restore teh rule of law.

[Sebastian]

"You still have issues of purity/health that should be handled at a federal level."

Why?

"For an interesting and opposing view of drug policy from a liberal perspective...go visit Reality Based Community. Brett knows the place."

I think you're talking about samefacts.com, which I read at least once a week, though to be honest they've gotten very preach-to-the-choir in the past two years.

But again, why is the federal level necessary? Would it be such a horrific thing for California to legalize marijuana while Delaware didn't?

[Sebastian]

Sapient "I mean when you distill it into what really happens, it's all about blue-eyed people not really wanting to pollute themselves with brown eyes. Not to mention skin."

Zoink, where did that come from? Don't you think it is very possible that one community might think that the Marijuana/Drug war calculus comes out to legalization while other communities might think otherwise? That might even be race independent, right?

"I'm about cross-culturalism. I think it's absolutely great to go to another country and eat mostly the food from that place. Nice. But to meet people who flatly refuse to eat food from any other place? Interesting, but kind of creepy too."

I don't understand what you're trying to get at with this. Are the federalists the people who have cool food because they allow for 'other places' or the people who flatly refuse to eat food from any other place?

[sapient]

My point is, Sebastian, that I don't see the modern United States as people whose culture is driven by their particular geography, other than as a legacy of the pre-Civil War days. There's nothing inherently, in modern terms, "Virginian" about me even though I've lived here most of my life. I don't get together with a bunch of other Virginians and decide to buy a gun every day, for example. Most Virginians who live in urban areas are Democrats, not Republicans. Most Virginians who live in suburbs are Republicans, not Democrats. I have more (politically) in common with people who live in cities anywhere else in the United States as i do with people who live five miles away from me.

There's no way to start from scratch on any issue in this country and debate it logically, including marijuana. Most of the kids I grew up with smoked dope. Many of those same people would support putting eighteen-year-olds in jail for doing the same thing they did. This has little to do with the issue itself - it's that they've taken one side or another in a culture war.

Stressing "states' rights" as a way to solve problems just feeds provincialism, and localized identity. Why do we want to do that?

[Hartmut]

One reason why the German constitution is significantly longer than the US one is that the competences and responsibilities of the federal and the state governments are spelled out in detail. Also, unlike in the US, there are two types of bills, where the first type only needs a vote in the Bundestag (House), while the second goes to the Bundesrat (Senate) afterwards. Into what category each bill belongs is also clearly defined in the constitution (and takes up a good deal of space too). To change the constitution also requires different procedures depending on which part it applies to. Some parts are off-limits 100% (Bill of Rights), others require a 2/3 majority.
Since the Bundesrat is not elected directly but consists of members of the state government, there is no need for an additional state-by-state approval.

[Rob in CT]

I'm sympathetic to this argument: but I'm sympathetic because I favor legalization. The states rights angle would just be tactical for me.

I'm gonna spend some time thinking about Brett's "liberals go all-in for the upside, exposing us to ultimate downside" vs "conservatives seek to limit downside, foreclosing upside" formulation. My gut reaction is there may be something to that.

[russell]

I don't see the modern United States as people whose culture is driven by their particular geography

Not necessarily geography, although it's more relevant than I think you credit. But certainly region, due to the combination of geography and history.

Population density is also a factor, as you note, and legitimately so, because the practicality and effectiveness of centrally provided services is quite different in areas with different population densities.

Localized identity is a reality. I identify as an American, but I also identify as a northeastern urban / suburban white collar householder. I identify as both, because I am both. Where policy on the recreational use of marijuana, or any of a very broad range of other questions, is decided has little to no effect on that, one way or another.

Stressing "states' rights" as a way to solve problems

IMO there is a lot of daylight between the "states' rights" issue per se, and the idea of devolving responsibility for policy making and implementation to the states where and when that makes sense.

There are certain things that unequivocally belong at the federal level. Deciding whether marijuana should be classified and managed as a potentially dangerous narcotic is not one of them.

If folks are dead set against it, they can simply outlaw it in their jurisdiction.

As a practical matter, a number of states in the US are more than prepared to either decriminalize or make legal the use of marijuana in any of a variety of contexts. The folks who live in those places are generally fine with it, they have the legal and institutional infrastructure to support it, and in many cases have been operating under their local law for years.

I don't see what value is created by the feds stepping in and saying they can't carry on as hey wish.

As far as the threat of a return to Jim Crow days, I personally do not find that likely. IMO the constituency for it is not what it was 50 or 60 years ago, and more to the point, I don't think black people in this country will ever put up with that crap again.

[McKinneyTexas]

It requires a program of careful state oversight about as much as chamomile, or Kava root.

I do a lot personal injury trial work, mostly on the defense. Eighteen wheeler and construction accidents seem to comprise maybe 40% of my docket. Add drunk drivers and you get up to 50%.

If marijuana were legalized, I wonder what added level of impairment related injuries I can expect to have to defend (which means settle, since an impaired crane or forklift operator or truck driver really doesn't have any defenses).

It's fine to think about mature adults finishing off the day with a joint and a bag of Cheetos, listening to some music and transitioning out of the stress of the day. I do that every day with a couple glasses of wine.

But not everyone drinks at home and not everyone behaves responsibly. My point is that there will be a cost to decriminalization and that cost will be, first and foremost, the innocents who are killed or maimed by stupid people doing stupid things, and secondarily, the cost imposed on employers of the impaired employee. The tertiary costs are the added load to the healthcare and welfare system when the injuries inflicted either don't immediately result in death or there is survival but long term disability.

Employers who cannot administer daily drug tests and who often are not in a position to observe their employees before the work day begins, are particularly exposed because one accident materially impacts insurability for liability matters, and most small businesses don't have the heft to self-insure.

If I were writing the rules, the pain associated with any impairment-related incident would be heavy and long term. At a minimum.

As far as the threat of a return to Jim Crow days, I personally do not find that likely. IMO the constituency for it is not what it was 50 or 60 years ago, and more to the point, I don't think black people in this country will ever put up with that crap again.

And to add to this, the body of federal constitutional law would still apply to every state. That's not going away.

[Rob in CT]

While I favor legalization, one problem we would have is enforcement of DUI. There is no equivalent of the breathalizer for pot, right? You can test for it, but all it will tell you is "this person used pot sometime in the past couple of weeks." So you're basically asking the police to utilize their discretion to determine impairment...

I still think the overall result will be positive. But that's a real problem.

[avedis]

"My point is that there will be a cost to decriminalization and that cost will be, first and foremost, the innocents who are killed or maimed by stupid people doing stupid things...."

You might have a minor point, but only if legalization leads to more use than currently. i doubt it would. Anyone who wants to use cannibis today can find it and consume with little trouble or risk.

DUI? who cares? Why was the driver pulled over? Where they swerving around? Give them a reckless driving ticket. Again, legalizing it isn't going to cause a sudden increase in use or driving under the influence.

When I feel like smoking, I know where to go to get a bag. The process takes maybe an hour. Possibly up to a day during a dry spell. High school kids have even more efficient sources.

The war on drugs has failed. Anyone who thinks that the laws have made it difficult to obtain or too risky to use, is out of touch with reality.

[McKinneyTexas]

You might have a minor point, but only if legalization leads to more use than currently. i doubt it would. Anyone who wants to use cannibis today can find it and consume with little trouble or risk.

Well, sure, there's no reason to think that legalizing pot would lead to more use. Use would probably fall off, with allure of forbidden fruit stripped away. Or not.

As for risk, there is a risk of going to jail if found with pot in your car. Now the risk would be of going to jail if impaired.

Personal anecdotes don't prove a lot, but if you want a list of actual cases where impaired drivers have created monumental tragedies, I can give you quite a list from my personal experience.

The war on drugs has failed. Anyone who thinks that the laws have made it difficult to obtain or too risky to use, is out of touch with reality.

So, in addition to pot, what else would be decriminalized: crack, PCP, meth, heroin, coke?

Who pays to maintain the crack heads and other useless addicts who won't have the good taste to overdose and take themselves off the table?

If we are only decriminalizing pot, we aren't ending the war on drugs, we are just redefining the battlefield.

[Sebastian]

"If we are only decriminalizing pot, we aren't ending the war on drugs, we are just redefining the battlefield. "

True, but we're redefining the battlefield in such a way as to take away by far the largest component of the drug war.

[Ugh]

Who pays to maintain the crack heads and other useless addicts who won't have the good taste to overdose and take themselves off the table?

Well, massive federal production and distribution of crack would be a lot less expensive from a federal government perspective than the current drug war, thus potentially resulting in lower taxes and/or greater government services to the non-useless addicts, so really, it's a win-win.

Surplus population and all that.

[avedis]

Well, since you asked, McKT, I think most currently illicit substances should be legalized and the ludicrous - and failed - war on drugs ended.

Cannabis, LSD, Mescaline, Psilocybin, MDA, various analogues of those psychedelics, opium and diluted cocaine (in beverages) should all be available just as alcohol is today. There would probably be a substitution effect that would dramatically lower the use of the truly nasty substances like crack.

However, use of crack and heroine would continue, illegally, to some extent; especially by hard core users. This use pattern, IMO, has nothing to do with recreational getting high or exploration of consciousness - normal and healthy human behaviors. It is more akin to slow suicide and is caused by severely disfunctional social and economic conditions and profound personal psychological issues. Correct the environmental issues associated with crack culture and provide improved mental health services and you end the addiction problem. Still, I fail to see how crack or heroine addiction is functionally different or more problematic than severe alcoholism. Or, for that matter, prescription opiate abuse. If you can live with one risk, then you can live with the other. Then again, maybe there is a difference. Race.

As for impaired drivers causing tragedies, that is irrelavent to the discussion, unless you are suggesting that there would be more impaired drivers out there. You have already admitted that there wouldn't be.

[Rob in CT]

I'll second avedis.

People get high now, but with the added bonus of the absurd WoD. Lose-Lose!

There is no great choice here that leads to utopia. The best we can do is choose the LOTE (much as we do come election time).

[russell]

But not everyone drinks at home and not everyone behaves responsibly.

And, it makes sense to penalize people for behaving irresponsibly.

Were I to hazard a guess, my guess would be that legalizing or decriminalizing MJ would increase the total number of users by 10-15%, max, and the folks who would take it up would largely be on the responsible side of the ledger.

We currently deal with people driving not only while drunk, or high on marijuana, but also on meth, prescription meds, talking on the phone and/or texting, and just plain too tired to be driving.

If you are operating a vehicle while impaired *for whatever reason*, you should be held responsible for that.

In the case of marijuana, specifically, I don't see that decriminalization of legalization will significantly change the driving issue one way or another.

The war on drugs has failed.

More than failed, it creates harms that did not exist when the substances it seeks to control were widely and publicly available.

It's not just not productive, it's counter-productive.

[Ugh]

McTx: My point is that there will be a cost to decriminalization and that cost will be, first and foremost, the innocents who are killed or maimed by stupid people doing stupid things, and secondarily, the cost imposed on employers of the impaired employee. The tertiary costs are the added load to the healthcare and welfare system when the injuries inflicted either don't immediately result in death or there is survival but long term disability.

And no innocents are harmed by the current policies? Nor employers? Nor the healthcare/welfare systems? Hell, it seems fairly clear that several nations have been effectively destroyed with much innocent suffering by the first world's war on drugs.

[McKinneyTexas]

And no innocents are harmed by the current policies? Nor employers? Nor the healthcare/welfare systems? Hell, it seems fairly clear that several nations have been effectively destroyed with much innocent suffering by the first world's war on drugs.

All true. As Rob says, LOTE. If there was a firm consensus that (1) driving/working/injuring others under the influence and crimes committed under the influence would be punished harshly and (2) that anyone stupid enough to render themselves an addict is on their own with absolutely no safety net, including no right to emergency room treatment for drug-related health conditions, I could be persuaded.

I wouldn't hire an addict and I would protect every employer's right to refuse an addict employment. Addicts would be unemployable and I am not interested in underwriting that lifestyle.

[sapient]

A couple of things:

Just want to reiterate my general agreement with most others here that legalizing marijuana would be a good thing. The drug war in general has done more harm than good. That said, the policies post-legalization (or decriminalization) would, like other food and drug issues, be best regulated on a federal level. What bobbyp said.

There are certain things that unequivocally belong at the federal level. Deciding whether marijuana should be classified and managed as a potentially dangerous narcotic is not one of them.

What about other foods and drugs, and the FDA, etc? We have as prototypes pharmaceuticals, alcohol, tobacco, for three. (The sale of alcohol is regulated by states because of the legacy of prohibition, and is an annoying regime for both businesses and consumers of alcohol.) If people grow their own marijuana for personal consumption, I'm not sure why any government agency should be involved (except that maybe states could, on an individual basis, allow that to happen). But once people sell it, it needs to be checked for strength, purity, etc., just like any other consumable product. Doesn't it? I would suggest too that if medical claims are made for it, they need to be verified by the agency we rely on to do that (the FDA).

Bottom line: marijuana is a substance that I believe should fall under federal regulation when it's sold for profit. If states want to legalize it for personal consumption, that would be fine with me.

(As to addictive drugs, I think that's a whole different issue.)

[sapient]

As far as the threat of a return to Jim Crow days, I personally do not find that likely. IMO the constituency for it is not what it was 50 or 60 years ago, and more to the point, I don't think black people in this country will ever put up with that crap again.

I agree that Jim Crow laws won't likely come back, not against black people anyway. I think that undocumented workers are going through a very similar (not quite as bad) hate scene right now in jurisdictions where they are perceived to be a "problem" - mostly border states but not exclusively there. I used to read the comments following Washington Post articles, but quit doing so because the hate speech was so venomous, mostly by people hating on immigrants. (I rarely read the Post anymore, for that matter.) We've seen hate legislation in various states already. Alabama and Arizona immediately come to mind. It's already being done.

The question is, do we want to encourage provincialism? After WWII, provincialism diminished hugely with certain types of bigotry falling down with it. A lot of this was because soldiers, who previously had been sheltered by their various rural farming communities, were exposed to a very diverse group of people (Catholics, Jews, immigrants), and then came back from the war and settled in colleges and jobs all over the country. It's arguable that attitudes changed enough to pave the way for the civil rights movement. Basically, the WWII vets made a start at kissing provincialism goodbye. Why would we want to bring that back?

Yeah, we all "identify" with our geography, climate, friends, lifestyle choices. But ask a "real Virginian" whether I (who have lived in Virginia for over 45 years) am a "real Virginian." You'd get the answer "no." Why? Even though I have ancestors who came from England prior to the Revolution, I don't claim any ancestors from the Civil War. And even though some of my pre-Revolutionary ancestors settled in Virginia for awhile, they weren't around during the Civil War. So, sure, I like my town - the red clay, the azaleas, the dogwoods, the gentleman farmer vineyard owners. But my ancestors didn't pledge allegiance to Old Virginia.

[Phil]

I wouldn't hire an addict and I would protect every employer's right to refuse an addict employment. Addicts would be unemployable and I am not interested in underwriting that lifestyle.

I assume the above applies to alcohol as well. Does it apply to tobacco?

[McKinneyTexas]

I think that undocumented workers are going through a very similar (not quite as bad) hate scene right now in jurisdictions where they are perceived to be a "problem" - mostly border states but not exclusively there.

You won't see much, if any, of that in Texas. Recall that Perry was pilloried by his fellow Repubs for signing a law that allows the children of illegal immigrants to attend state colleges and universities at in-state tuition rates.

Texas, despite the rhetoric and if left to its own devices, would probably be open to granting amnesty and guest worker status to most illegal immigrants and citizenship to those with longstanding ties to the community.

I assume the above applies to alcohol as well.

It does. I had an associate attorney with a drinking problem. That person refused to get help, insisting that I was wrong and there was absolutely nothing wrong with him/her. I had to let that person go. OTOH, I would hire a recovering addict with a demonstrated history of staying clean and being in some kind of program.

Does it apply to tobacco?

No. Tobacco is a health risk, not a cognitive or judgmental or motor skills impairment issue.

[russell]

We have as prototypes pharmaceuticals, alcohol, tobacco, for three.

It makes sense to me to have national standards for pharmaceuticals, as we have for food etc. It makes sense to have international standards for pharmaceuticals, for that matter, because they are bought and sold across international borders.

To the degree that marijuana is bought and sold on a national or international market, it seems wise to have national or international standards for quality, purity, etc.

My impression was that the question on the table was less about how MJ might be regulated as a consumer product, and more whether the decision of whether it should be legal to buy, sell, possess or use MJ could be delegated to the states. IMO it can and likely should.

Regarding alcohol and tobacco, policies about both vary fairly widely from place to place, and IMVHO it's just not a problem. You describe it as an "annoying" regime, but to be perfectly honest, I don't think it's really that big of a deal. Much less so than trying to figure out a single national policy that will accomodate, frex, both Las Vegas and pre-2009 Salt Lake City.

I quite agree with your concern about the level of anger directed at illegal immigrants. IMO immigration policy is quite specifically a federal responsibility, per Article I Section 8. AZ and AL are unique places, for many reasons, their approach to handling immigration is simply one among many.

I'm not sure what you're getting at when you talk about "provincialism". People in different parts of the country are different. They want different things, they think different things are important. There are many reasons for that, and greater or lesser centralization of certain government functions isn't really going to make a dent in that.

I'm not a states' rights advocate, and I'm fine with a robust national government. But there's a pretty broad range of things which I think the states could handle perfectly well, and likely in ways that would be more effective and appropriate their populations than doing so at the federal level.

[avedis]

"...that anyone stupid enough to render themselves an addict is on their own with absolutely no safety net, including no right to emergency room treatment for drug-related health conditions, I could be persuaded...."

Does that statement apply to the obese, who are addicted to food? You know that obesity is the number one driver of healthcare insurance costs. Obesity also effects cognitive and motor skills as much as it probably often reflects psychological imbalances.

Any how, the thread is, indeed, about state versus federal control of (currently) illicit drug use and trade. I am with Russell on that issue, "It makes sense to me to have national standards for pharmaceuticals, as we have for food etc. It makes sense to have international standards for pharmaceuticals, for that matter, because they are bought and sold across international borders.

To the degree that marijuana is bought and sold on a national or international market, it seems wise to have national or international standards for quality, purity, etc."

States could, however, reserve the right to develop and implement their own growers' licensing policies, taxation policies and such, above and beyond what the fed.s put in place.

[McKinneyTexas]

Does that statement apply to the obese, who are addicted to food?

Last time I looked, obesity does not produce judgmental, motor skill or cognitive impairment. That said, I am open to ramping up health insurance premiums for lifestyle decisions that drive up health costs. And reducing premiums for people who maintain their weight and their health, who get screened and follow medical advice.

[avedis]

I think obesity does impair the ability the work effectively and to think straight. Increasing insurance premiums on these people sounds good from a free market perspective, but they would be priced out of the market; just as bad drivers are priced out of the auto insurance market. Then we would have a lot of beached whales flapping around dying on street corners. We digress.........

I think the reason we have the federalism issue around drugs is that the feds refuse to act reasonably. To the contrary, with all of the federal crime fighting agencies addicted to all of the tax money and becoming, figuratively, obese from overconsumption, the fed.s cannot think objectively or reasonably about drugs. They just absolutely refuse to. Therefore, some states inhabited by free thinking Americans have started what amounts to a minor rebellion against federal tyranny. It is all quite interesting.

[russell]

anyone stupid enough to render themselves an addict is on their own with absolutely no safety net, including no right to emergency room treatment for drug-related health conditions, I could be persuaded.

As an aside: I sort of see your point here, however there are some people who are not well set up to deal with chemicals.

As George Carlin said about his father, he was a great guy, but he could not metabolize ethanol.

It can be tempting to look at addiction as a massive failure of self-control and/or -discipline, but sometimes it's as much biology as anything else.

Net/net, IMVVVHO, the most productive approach is to deal with it as a primarily medical problem.

When you get the chemicals out of the bloodstream, then maybe you can circle back and deal with psychological / personality defects.

Some people are gonna flame out and die, no matter what you try to do for them. Some don't, and go on to do some beautiful things. I'm sure we all know some of each.

[russell]

As another aside:

In late middle age, my old man apparently became a big fan of marijuana. My step-brothers were big partiers, he gave them a lot of sh*t about it, they said "don't knock it till you try it", so he tried it.

And he liked it. Quite a lot. For various reasons, my father had a lot of heavy stresses in his life, and MJ was one of the few things that would really let him chill.

Spark a bone, put some Chet Baker on, and float away for a while.

This was in the 70's and early 80's, when he was in his 50's and early 60's. During this time, he was the director of quality assurance for the avionics division of a large and very significant military contractor.

Apparently, it never interfered with his work, or his personal life for that matter, in any significant way.

At some point he figured it was kind of a high-risk proposition for a guy in his position to be getting stoned, and he put it down. It was a purely pragmatic decision.

MJ, and many other commonly occurring plants etc., have been commonly used for both recreational and medicinal purposes as a normal part of human culture for thousands and thousands of years.

Longer than writing, longer than urban settlement, longer than many aspects of our current daily life.

Animals with complex nervous systems like to get high. You can look it up. We can try to make laws about it, but biology will out.

[Chris Johnson]

George Carlin is right. Medically speaking, alcoholism at least is clearly a mixture of innate (genetic) and environmental components. I'm pretty sure (without a literature search) that is also the case for cocaine and benzodiazepines (Valium and others). I'm not sure about methamphetamines and narcotics, but I'd be surprised if the same is not the case for them.

[avedis]

Has anyone explained *why* cannabis and some other drugs are illegal? Are the feds being arbitrary in making them illegal?

"Some people are gonna flame out and die, no matter what you try to do for them."

Exactly.

And that is not just regarding drugs. It is a reality covered by a huge range of legal activities that carry some degree of danger. This would include "junk food" which, if eaten in sufficient quantities, as it often is, will lead to a host of costly and fatal diseases.

Why cannot the illegality of drugs be constitutionally challenged on the grounds of being arbitrary and needlessly restrictive (or whatever lawyers can come up with). In a "free" society, I should be able to get high. In doing so, how am I impacting the safety and welfare of my fellow citizens? I think you would need to prove that I am before you restrict me. i also think you would need to show that I am endangering others beyond the levels associated with other common, but legal, activities (like alcohol use, fast food, sky diving, stock car racing, legally prescribed medicines, bow hunting grizzly bears.....).

How can the feds just make something illegal on a whim? Especially something that a sizeable proportion of us want?

[Brett Bellmore]

My personal take on drugs is that we can either set up the system to minimize harm to people who act sensibly, or set it up to minimize harm to self-destructive people. The problem with doing the latter is that it's not, generally speaking, reducing the total harm. It's just redistributing it away from the people whose actions caused it.

So, instead of self-destructive idiots self-destructing, we, all of us, self-destructive and sensible, get to live in a police state. With high rates of non-victimless crime, with world terrorism financed, with civil liberties eroding.

And with the self-destructive still using drugs!

I'd rather see a system that tried to minimize the harm the self-destructive did to others, and otherwise left them to their own devices.

It's unfortunate when people destroy themselves. It's a crying injustice when people who do everything right get destroyed as a result of trying to save the self-destructive from themselves.

[avedis]

well said, brett, but why are the drug laws consitutional?

[Phil]

"No. Tobacco is a health risk, not a cognitive or judgmental or motor skills impairment issue"

Yeah, but you're the guy paying the insurance bill.

[chmood]

It should be acknowledged that much of what's on Schedule 1 is there for entirely political reasons, and that medical opinion has been largely ignored into the bargain.

There was no 'marijuana problem' until a way of othering Latinos was wanted. Likewise cocaine & heroin in the 40s, only the target here were blacks, and the entheogens in the sixties, when politically active youth and intellectuals were targeted. Since there *was* no spotty state response to these non-problems, there could be no justification for a federal solution to incompatible legislation, for example. So to say that the matter should be turned over by the federal govt. to the states is ludicrous. It was only ever a national gin-up.

Since there is no significant body of law interdicting these substances among the states predating the federal action, there's nothing to 'return' to the states. Better to remove them from Scheduling entirely, and nullify existing state laws - almost all of which derive from the law-and-order hysteria of the Nixon & Reagan years - as a reflection of the de-scheduling.

It the several States individually care to have the debate internally, bully for them.

[Hartmut]

In Europe the crusade against cannabis had nothing to do with race. To my knowledge the main pushers for a ban (and organizers of public disinformation campaigns) were certain chemical companies that wanted to eliminate the cheap home-grown competition to their synthetic products (including, sad irony, heroin(e)). Hard drugs are a diferent matter. Bans started early with opium (a number of laws and instututions still have opium in their title) and expanded later to cover stuff like cocaine. That was clearly about public health. Britain in ultimate hypocrisy had already banned opium at home when it forced China to let the stuff in through the Opium Wars (the emperor personally complained and pointed this out to Queen Victoria but never got an answer).

[Brett Bellmore]

"well said, brett, but why are the drug laws consitutional?"

At the federal level? I don't believe they are. It's just that the federal courts were effectively suborned between Prohibition Mk I and Prohibition Mk II, and are now out of the business of limiting the federal government to it's enumerated powers.

Indeed, if you look at the earliest statutes in the war on drugs, such as the Harrison Narcotics act, they were written as (Outrageously high) taxes, because the people writing them were fully aware that the federal government lacked any authority to ban a substance.

Indeed, from Rock Island Armory, (A related case in the area of firearms, where the same dodge was used to impose a ban on newly manufactured machine guns.) the then Attorney General,

""explained in detail how the [Act] would be based on the tax power. Cummings denied that machineguns could be banned, because 'we have no inherent police power to go into certain localities and deal with local crime. It is only when we can reach those things under ... the power of taxation that we can act.' "

That was the legal understanding concerning federal bans as recently as 1991: They were unconstitutional, and the federal government had to be satisfied with Rube Goldberg work-arounds based on the power to tax. (Which the Court held ceased to be constitutional if the feds refused to accept the tax and allow the conduct once it was paid.)

It's only in the last few years that Congress has finally gotten around to claiming an actual power to ban anything, as a result of their increasing contempt for the notion that the Constitution imposes actual limits on their power.

[Brett Bellmore]

From Nigro v. United States, (A case concerning the Harrison Narcotics act.) the Court ruled,

""In interpreting the act, we must assume that it is a taxing measure, for otherwise it would be no law at all. If it is a mere act for the purpose of regulating and restraining the purchase of the opiate and other drugs, it is beyond the power of Congress and must be regarded as invalid....

...

Congress by merely calling an act a taxing act cannot make it a legitimate exercise of taxing power under § 8 of article 1 of the Federal Constitution, if in fact the words of the act show clearly its real purpose is otherwise."

The latter statement might actually be regarded as having some relevance to another question of federal power before the courts right now...

[sapient]

Some people are gonna flame out and die, no matter what you try to do for them. Some don't, and go on to do some beautiful things. I'm sure we all know some of each.

The most recent person I knew who flamed out and died was a beloved friend who might not have died had he been comfortable continuing to self-medicate with marijuana. He was a good man, but beset by various demons that marijuana helped keep at bay. Psychiatrists, etc., might have helped, but he just wasn't the kind of person to put his faith in that kind of medicine. (He did try though.)

I'm in favor of legalizing marijuana. I'd rather not have it be a "federalist" cause - I'd rather it be a national cause, but it could just as easily be a municipal cause or whatever. I don't think that there's anything magic about "states" that makes them the better governmental organization to do things. And "states' rights" creep me out because of the history of "states' rights."

[avedis]

Thanks Brett. That was very helpful and makes sense. I figured as much.

Why cannot someone get this before the Supreme Court?

At any rate, kind of puts the whole federalism v states rights in a new perspective.

[Brett Bellmore]

I would agree, there's nothing "magic" about doing things at the state level, although the priciple of subsidarity has something to it.

Similarly, there's nothing "magic" about the double nickel. But if traffic cops are routinely ticketing some people for speeding for going 45 in a 55 zone, while favored people get to go 70 in the same areas unmolested, your problem isn't that 55 is being violated, it's that you don't have the rule of law.

We happen to have a constitution, supposedly the highest law of the land, which establishes a federalist system. We either run such a system in practice, amend the Constitution to no longer provide for one, or have lawless government. There is no fourth alternative.

IMO, our entire legal system has been warped at the federal level, by the systematic legal double-think necessary to run a national system under a federalist constitution. We should bring practice and black letter law into agreement. I have my preference as to which should change, but one of them must.

[McKinneyTexas]

Russell, you raise a good point. Here's the difference I see between alcohol and, e.g., crack. A person finds out he/she is an alcoholic when they start drinking. There's a genetic component and an environmental component. I don't think anyone fully understands the mechanism or the degree one feeds off the other. But, the alcoholic doesn't drink his/her first drink thinking, "hey, I am at risk of becoming an addict here and ruining my life and others' as well." It's typically a gradual slide into the abyss.

Crack, meth, etc are known, highly addictive drugs. Use them X number of times and you're there. Well, I say, if you choose this path, you are on your own. Death by exposure, starvation, overdose, whatever, is your endgame. Have a nice life. If drugs are going to be legal, once there is an established record of addicts being left to themselves, hopefully others will learn from those examples and stay away from the hard stuff.

Another thing about alcohol: I have a number of friends--close and very close friends and an immediate family member--who are recovering alcoholics. For all but one of them, AA is what got them clean and helps them stay that way. The other fixed his problem with religion--total immersion and it worked. I can't explain the mechanism.

I don't know if there is a crack analogue to AA because, quite frankly, the only crack/meth addict I know is hopelessly addicted and is a constant drain on his/her parents' resources and emotions. They've spent more money than you can imagine trying to help their child. There is no help for it other than letting their child either go the way of all flesh or find it within him/herself to want to change badly enough to do it on his/her own.

The pain that addicts put their families through is immense and unrelenting. The pain they inflict on strangers through accidents and criminal acts, the same.

Yeah, but you're the guy paying the insurance bill.

Yes, I am. As it happens, I have two smokers on my payroll. One is insured on her husband's insurance and the other is on my nickel. For whatever reason, I drew the short straw on health risks. With 11 employees, I have three who either directly or through an insured dependent, hit our insurance very, very hard. Smoking is the least of the insurance load I carry. But, OTOH, I have the money and I don't mind paying the freight. Every single one of those folks works hard and well for me, so it's more than a fair trade.

All of that said, in a perfect world, individuals would be rated and charged premiums for controllable, unhealthy lifestyle choices, including obesity and smoking. In that perfect world, I would require any employee with such a rating to pay the difference out of their pocket.

[russell]

We happen to have a constitution, supposedly the highest law of the land, which establishes a federalist system.

I would say (a) that this statement needs some fleshing out, and (b) that your sense of what the Constitution does and does not say has been a matter of debate since about 1789.

Curiously, "federalism" in the US originally referred to a political movement, and then a political party, that argued quite strongly for a stronger, rather than a weaker, federal government.

Similarly, there's nothing "magic" about the double nickel.

One of the strongest examples in favor of federalism, in the sense of devolving policy-making responsibility to the states, is the inappropriateness of a national speed limit.

Which, if I'm not mistaken, we no longer have.

[Rob in CT]

The other fixed his problem with religion--total immersion and it worked. I can't explain the mechanism.

IMO, he exchanged one addiction for another. The new one is healthier.

...

As the WoD is currently a federal thing, step 1 in reversing it has to be at the federal level too, no?

After that, the question is what role shall the feds have going forward? I think involving the FDA makes all sorts of sense. To the extent we wish to preserve the ban on some substances that are imported, keeping some federal interdiction capability also makes sense (realistically, we might get MJ legalized, but I find it hard to see a majority going for legalization of, say, coke or heroin - at least until the MJ legalization worked out reasonably well).

I think the alcohol model is one way to go. Each state (and often each municipality) does its own thing to a large extent. I'm ok with that, though no doubt it can be frustrating if you live in a "dry" country or find the old Blue Laws annoying (I long since adapted to CT's rules and don't even really notice them).

[avedis]

McKT, I don't buy your distinction between alcohol and amphetamine regarding foreknowledge of addiction potential.

First, everyone knows that alcoholism is a real risk. God knows there have been enough celeb.s that have made this fact salient to even the least educated among us. So I disagree with your description of a relatively innocent slide into alcoholism.

Second, there are people who use meth in a reasonably responsible fashion - weird as that sounds. I have never even tried it myself, but I have known a number of people that have used it. You probably won't accept this as a fact, but I'm putting it out there anyhow. The military has dispensed meth to troops and pilots for the obvious purpose of keeping them awake and sharp when pushed beyond normal limits. I have known people that have occasionally used meth for similar, non-mil, purposes. I don't personally approve of this, but all of those I know that did it came out of it just fine. No addiction. No long term damage.

There are also people that even use heroine responsibly. They hold good jobs and enjoy heroine on weekends or whenever it's use won't interfere with life's duties and obligations.

Addiction is the result of extreme irresponsible abuse. You have to work at getting addicted to become an addict (though I think crack might be an exception).

The reefer madness (or substitute most other drugs for reefer) myth is just that. A media concoction to scare (mostly) white middle and upper class conformists.

[Brett Bellmore]

"and (b) that your sense of what the Constitution does and does not say has been a matter of debate since about 1789."

What bothers me is that parts of the Constitution had their meanings suddenly become "a matter of debate" in the 1930's, which had been understood to be crystal clear for 140 years prior. It's amazing what can become "a matter of debate" if people stop regarding sophistry as shameful.

As the quotes from court cases I gave above indicate, as recently as the 1990's it was understood that the federal government didn't actually have any authority to ban something. You wonder how a consensus as to the meaning of something can last that long if the language were genuinely ambiguous...

[chmood]

Brett, it's great to be having an actual conversation with you here, but your comments are a bit too arch/vague for me to follow sometimes.

Any chance that you could, occasionally, refer overtly to what you're talking about? It would make things EVER so much more clear

[russell]

You wonder how a consensus as to the meaning of something can last that long

I guess my point is that there was no such consensus.

[hairshirthedonist]

Here's a potentially stupid/inapt/redundant thought, just jumping in without having read through the 70+ comments:

Would you say there was a consensus that we didn't need a National Electrical Code before we started using electricity on a large scale? My point here isn't that the NEC is law or anything like that. It's just that something new came along that needed to be addressed.

Perhaps that's why the Constitution became interpreted in new ways after many years without quite so much need for interpretation. Society and technology changed. Things got a bit more complicated.

That's not to suggest that there hasn't ever been tortured legal reasoning along the way, rather that sophistry isn't the only reason new issues and arguments came about. In many cases, it's not that they were settled long ago. They just hadn't been necessary before.

[Ugh]

Brett: As the quotes from court cases I gave above indicate, as recently as the 1990's it was understood that the federal government didn't actually have any authority to ban something.

Rock Island Armory, if my googling is correct, was a district court case and your quote above is something the Attorney General said in 1934 (which was cited in the district court case). As a district court case it has it has no precedential value essentially anywhere, IIRC, and it doesn't appear to have been appealed (I would guess because there were other counts in the indictment that stood and the U.S. proceeded on those counts).

It's only in the last few years that Congress has finally gotten around to claiming an actual power to ban anything, as a result of their increasing contempt for the notion that the Constitution imposes actual limits on their power.

The last few years? Define few. I mean, hasn't it been against federal law to possess drugs (and other things) for decades?

[Ugh]

I mean, the federal gov't can't ban the possession of tactical (or even strategic!) nuclear weapons by private citizens?

More generally Brett, you seem to have this idea that the legal conclusions as to what the Constitution does and doesn't mean on federalism/commerce issues were set down correctly long ago (let's just say pre-1930) and that somehow any change since then is illegitimate/illegal/an affront to the rule of law.

Why can't it be the reverse, for example? Or why can't the facts have changed and thus the legal conclusions? E.g., how long did it take to get from one side of this country in 1930? How long in 1830? It takes ~6 hours now via commercial jet. Don't you think that might have some impact on the ability of Congress to regulate commerce or things that affect commerce?

[hairshirthedonist]

I don't get the worry over driving or workplace safety. Is doing stuff while stoned any safer for the fact that pot's illegal? And alcohol's legal, but drunk driving isn't. At the same time, various employers require drug and alcohol (a legal substance) testing for their employees (and contractors), particularly in certain areas of work where impairment would be particularly unsafe. Why would any of that change? From an employment and driving perspective, why would now-illegal pot be treated any differently than potentially legal pot?

[Brett Bellmore]

"More generally Brett, you seem to have this idea that the legal conclusions as to what the Constitution does and doesn't mean on federalism/commerce issues were set down correctly long ago (let's just say pre-1930) and that somehow any change since then is illegitimate/illegal/an affront to the rule of law."

Yeah, basically that's originalism: Laws get their meanings at time of enactment, if you subsequently want to change their meanings, you go through the formal process of amending them, rather than just convincing a judge to conveniently discover that they really mean something remarkably different from anything anybody previously thought.

Look, it's not like the pages of the Constitution were stuck together, and nobody noticed until the New Deal Court pried them apart and found a clause giving the federal govenrment all these powers nobody previously thought it had.

No, the justices were just intimidated into saying the Constitution meant something nobody had thought it meant, and then were gradually replaced with other men who'd spout the same BS voluntarily. All because actually writing amendments, and submitting them to the states to possibly be rejected, was just to tedious to bother with.

[Rob in CT]

Imagine the nightmare a Constitutional Convention would've been in 1932. Or 2012, for that matter.

Nightmare, I tell ya.

I do generally agree that some updating should be done, rather than arguing about (for example) what the line about a "well-regulated militia" means here in 2012. We'd have to define "arms" a little more carefully (tactical nukes probably won't make the cut), for instance. The amendment would probably end up being 800 pages long.

In theory, that's precisely what we ought to do: draft it up, debate it in Congress and then send it to the states.

In reality? I cannot imagine it actually working out well, given the political climate. Which brings us back to Russell's statement a few days ago about the country reaching the point of ungovernability...

[Ugh]

So Brett there's no force to be given to factual changes then? I mean, it would be one thing to say Congress can't regulate corn grown in your own field for your personal consumption in 1800 when 99% of people are doing the same thing, but in 1930 when 80% of corn is grown for distribution to others (I'm making up the %s but I think you get the idea)?

Laws get their meanings at time of enactment, if you subsequently want to change their meanings, you go through the formal process of amending them, rather than just convincing a judge to conveniently discover that they really mean something remarkably different from anything anybody previously thought.

Well, I think Scalia's critique of the legislative history to statute applies here, in that whose meaning controls? There are currently 535 House and Senate members.

I mean, if we could somehow survey the people who signed the Constitution and asked each of them to explain in three paragraphs or less what "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes" meant, we'd get as many different answers as people. And let's not forget it seems that many of the people who wrote the Constitution and Bill of Rights seemed intent on violating its provisions right from the get go.

So, we're left with the text. And it's a sparse text (for better or worse).

Further, we're now 223 years from the adoption of the Constitution, how are we to divine what the "original" meaning of this or that phrase at this late a date? You seem to imply that SCOTUS precedent was just fine up until FDR, does that apply across the board?

[Ugh]

I meant to add after "There are currently 535 House and Senate members.":

All of whom likely have differing interpretations of any particular statute.

[hairshirthedonist]

Maybe the original intent in many cases was to leave a fairly wide space in which to move about, in anticipation of life not being exactly the same however many years into the future. I mean, should freedom of speech only apply to what you can say without amplification or broadcast technology? Should the right to bear arms apply only to muskets and flintlocks (or whatever - I don't know from guns.)

[McKinneyTexas]

Yeah, basically that's originalism: Laws get their meanings at time of enactment, if you subsequently want to change their meanings, you go through the formal process of amending them, rather than just convincing a judge to conveniently discover that they really mean something remarkably different from anything anybody previously thought.

Brett, have you read Plessy v Ferguson? I am morally certain that, if we suddenly went back 80 or 100 years in how we interpret the Constitution, you would not be very happy about that.

It is not unheard of for judges to get something wrong the first time they address an issue. Or, when the facts change, to have to look at what was previously decided in a different way.

Another question: how far back would you go? Pre- or post- Marbury vs. Madison?

Finally, could you give two good examples of what you mean by the Supreme Court "conveniently discover[ing] that they really mean something remarkably different from anything anybody previously thought"?

[Brett Bellmore]

"In theory, that's precisely what we ought to do: draft it up, debate it in Congress and then send it to the states.

In reality? I cannot imagine it actually working out well, given the political climate."

That's your excuse? It was ok to rob the bank, because you can't imagine they'd have given you the money voluntarily?

Essentially what you're saying is that pretending to have a constitution which actually has the status of law is all well and good, but it's too much bother to actually go through the tedious motions, like writing up amendments when you want to change it, and taking the risk that they might not get ratified.

We can't have a real constitution, because you might not win all the arguments, some of the changes you want might not be popular enough to get ratified, some changes you don't want might actually be popular.

[McKinneyTexas]

Should the right to bear arms apply only to muskets and flintlocks (or whatever - I don't know from guns.)

You're close. In the context of what the framers had in mind, a solid argument can be made that the 2nd amendment reaches only weapons that can be carried by one person and that fire only once when the trigger is pulled. Militias aren't so limited, but the individual is. Arguably.

[Rob in CT]

That's a really silly analogy, Brett.

However, it is indeed an excuse for failing to update the Constitution more than we actually have.

We can't have a real constitution, because you might not win all the arguments

I don't win all the arguments now, Brett, so that's not the issue. No, I envision a clusterf*ck that would make our current politics look sane and calm. Perhaps I'm wrong, but that's what I see.

I also think your "everybody was on the same page until the 1930s" argument is a really big stretch, but I didn't care to take it on.

[Brett Bellmore]

You'd be on stronger grounds arguing that it's a right of the invidual to carry to whatever they decide to have the average infantry soldier carry, since the idea was that private citizens would own, and be familiar with, arms suitable for military use, so that they could rapidly be constituted into a military force in an emergency. Tenche Coxe's, "Their swords, and every other terrible implement of the soldier..."

Anyway, to sum up my point: There's no "in theory" when it comes to the rule of law. The rule of law means just precisely that you DO IN PRACTICE EXACTLY WHAT YOU'RE SUPPOSED TO DO IN THEORY., no more, no less. You follow the blasted rules.

Even if they are inconvenient, or might not result in you winning every battle...

[McKinneyTexas]

You'd be on stronger grounds arguing that it's a right of the invidual to carry to whatever they decide to have the average infantry soldier carry, since the idea was that private citizens would own, and be familiar with, arms suitable for military use, so that they could rapidly be constituted into a military force in an emergency.

Not really. The drafters were fairly bright. Weapons back then were swords, knives, hand axes, pistols, long guns and cannons. "The right to keep and bear . . .", i.e. the right to be armed at the house and to carry one's weapons was the basis for a militia that could be called up. Times changed and so did technology. Do you really think the framers intended that any adult could own and possess a wire guided anti tank missile, or a hand held SAM? The 2nd amendment was passed in the aftermath of a successful rebellion and during ongoing wars/battles/skirmishes with Native Americans and at a time when the national and state gov'ts lacked the funds to maintain a standing army and, more importantly, to arm a ready reserve.

I'm glad we have the 2nd amendment and I believe it is a personal right, not a collective right. But it doesn't extend to anything a modern soldier can carry into battle. Hand grenades? Mortars?

Wouldn't gang warfare and the Mexican and Columbian cartels be something to behold then? And the framers, if they could foresee, would sign on to this? I think your construction is taking what was plainly intended and giving it a modern meaning remarkably different than anything a sane group of men, way back when, would ever countenance.

[avedis]

It does seem like the framers left the door wide open for tyranny with ".....for the common Defence and general Welfare of the United States....." because we now have government "experts" telling us what is a threat to us and what needs to be done about it to protect the general welfare - which is peg they hang the war on drugs hat on (as well as the war on terrorism and all that it legally entails) - and then moving forward with all kinds of laws that go against the spirit and intent of the original document.

And we have no say in any of it.

I think that it is time to call a CC and have the parameters of "general welfare" be more clearly defined.

It's the one area where I am sympathetic to the libertarian position. I'd rather have less (or none) fed govt "help" than more; and certainly less than we have today if they are going to drive mack trucks through the open door.

[avedis]

"I'm glad we have the 2nd amendment and I believe it is a personal right, not a collective right. But it doesn't extend to anything a modern soldier can carry into battle. Hand grenades? Mortars?"

as things sit today, a civilian cannot own/carry *anything* a soldier carries into battle except the same side arm.

True, a fully automatic submachine gun or rifle can be owned by a civilian if, after much onerous, expensive and invasive processes, he still is deemed acceptable to do so by the feds. But this barely counts, at best.

[avedis]

spirit and intent...meant spirit and letter

[Hartmut]

As I have stated repeatedly, I think the US constitution is only around still because it has been conveniently ignored when it became inconvenient. And that did not start with FDR but at the latest with the Sedition Act of 1798. The US has made a system out of Inter Arma Silent Leges, i.e. each and every war has been used as an excuse to trample on some part of the legal code, including the constitution. The 'serious people' have rarely protested in earnest, either because they were not the victims (but instead profitted) or they feared that real protesting could make them the targets.
I would agree that a lot FDR* did was legally questionable (btw, the same holds true for Lincoln) but I think that the alternatives would have been extremly ugly and democracy would not have survived except maybe as an empty shell. Well (or actually not), we may repeat the experiment soon.

*in peace and war

[Brett Bellmore]

Democracy would not have survived drafting formal amendments, and submitting them to the states for ratification? Why, would FDR have abolished democracy if it had refused to give him his amendments, the way he threatened the Court if it wouldn't stop enforcing the Constitution against him? I guess that is somewhat plausible.

It's actually a funny comment, as the same reasoning which justifies 'amendment' by judicial subornation would also justify setting aside elections. It's hard, after all, to imagine them turning out well in the present political situation...

Anyway, I suppose we'll find out soon, as pressure is building for a constitutional convention, soon we'll either bring practice and constitution into agreement, or the political class will stop bothering to pretend they're bound by a constitution.

[bobbyp]

"More generally Brett..."

See. I warned you guys. ;)

Anyhoo, as I understand it from my old hippie days high and laughing at reefer madness, the feds initially (in 1937, another Roosevelt fiasco) said you had to have a tax stamp to possess MJ, but Catch-22, nobody could obtain such a stamp. I'm not sure what current federal law is regarding MJ....perhaps some here could fill us in.

Brett may also be interested to refresh his knowledge of the long history of drug http://www.naabt.org/laws.cfm> BANNING at the federal level even, miribile dictu, at the height of the Lockner Era, a period of run amok judicial activism that B.B. tends of elide just about always, and assert, despite copious evidence to the contrary, that there was some kind of widespread, nay universal, agreement as to the meaning of the Constitution during that time.

As to legalization...our drug war is a social travesty with huge costs. There is always going to be about 10-15% of the population with tendencies toward addiction. We should treat this as a public health issue, not a criminal one.

Re, for some strange reason, J. Crow: A devolution to federalism would not bring it back in its most egregiously oppressive form....but, well, I was going to say something insightful here....damn.

All I mean to say is that appeals to federalism as an overarching principle make me very nervous. Local control of what? Why? Those are the issues? Let's discuss the issue at hand...drug legalization at any/all levels. Sneaking federalism into it is, to me, is a sure way to make me suspicious that some larger agenda is in play.

[Sebastian H]

"All I mean to say is that appeals to federalism as an overarching principle make me very nervous. Local control of what? Why? Those are the issues? Let's discuss the issue at hand...drug legalization at any/all levels. Sneaking federalism into it is, to me, is a sure way to make me suspicious that some larger agenda is in play"

There is no any/all levels without federalism. There is the federal level or nothing. And I can tell you right now that legalization in California/New York is WAY more likely than legalization nationwide.

The thing about letting states do their own things is that it can work to progressive advantage as well as disadvantage. If some states are willing to go further than others, they CAN under federalism. They can't nowadays.

(Of course part of this is an offshoot of doing so much through the judiciary instead of trying to win through legislatures. If you don't believe you can win anywhere, you have to get everything done through the federal judiciary).

[bobbyp]

they CAN under federalism.

Thank you for making my point. CAN what? Go further how? You tout federalism as an end, not a means? The other way 'round? Or is it the case that you believe 'your side' will be more politically successful under a system of greater state sovereignty? cf the Virginia rape with medical instruments law (pending). Nay, I shall not automatically genuflect to this sort of 'going further' under the premise that federalism rules.

Then the backhanded slap about going "through the judiciary"....the standard issue conservative agenda is there. It is as plain as it is unwise IMO, but these are in essence political differences, and I guess you fight them, in the words of that highly touted SecDef (hahahahahahahah)Donny Rumsfeld with the tools at hand instead of the tools you wish you had.

Some who tout this principle so highly might want to give more study to the history, brief as it was, of the C.S.A. It was in many respects a governing disaster, and took "a house divided against itself" to some truly ludicrous places even among the true believers.

[Hartmut]

Democracy would not have survived drafting formal amendments, and submitting them to the states for ratification? Why, would FDR have abolished democracy if it had refused to give him his amendments, the way he threatened the Court if it wouldn't stop enforcing the Constitution against him? I guess that is somewhat plausible.

No, I think without FDR opening the emergency valve, the status quo would have blown up ending either in a fascist or bolshevik system (the latter less likely). The amendment route would imo not have worked at all or would have been too slow to prevent that. Btw, I do not believe that the usual suspects would even have accepted amendments, had they miraculously passed (cf. income tax, alleged invalidity of). FDR was a reluctant reformer and Obama is not even an FDR (and no true one is in sight). If the things go like they do now, the next GOPster POTUS will either let the system go over the cliff or even push the accelerator personally. Without the valium of modern entertainment this could already have happened. There is bread and circuses but the bread is going to be removed from the list. We'll see how long the games can cover for that. And as revolutions tend to go, the results will in the short to medium term be ugly and not a (re)turn to a more fair/equal/democratic/etc. system. And the loudest 'defenders of our threatened sacred liberties' will be the cheerleaders on the march. And it won't be happy days for the true libertarians. Another prediction: the military will stay strictly neutral and make favorable arrangements with whoever wins.

[Brett Bellmore]

Ah, "We had to destroy the Constitution in order to save it."

FDR was a President for Life who had no patience at all with not getting his way on everything. The Constitution got in his way, the Constitution had to give way. Amendments weren't pursued because he wasn't of a mind to give anybody a choice about the changes.

Yeah, I think we're headed for a revolution, and thinking like your's, that the rules are just too much trouble to follow, are a large part of why.