Free Markets, Free People
Colorado and Washington had referrendums on their ballots this past election day in which growing pot for one’s own use was legalized. Much like home brewing laws, users were given the go ahead to grow enough marijuana for their own, private use.
So what does that mean in the big scheme of things? Certainly it will mean that at a state level, given the new law, state and local police aren’t going to be looking for small time users or growers. And the Fed certainly doesn’t have the manpower to go after them.
But it’s unrealistic and unwise to expect federal officials to pick up the slack left by state law- enforcement officers who used to enforce marijuana prohibitions against pot users and small-time growers. Unrealistic, because it would require lots more resources.
Resources they don’t, frankly, have.
So here we have two states acting as sort of “labs” for freedom. You know, trying something out as we were told states should do under a “federal” system.
Now, you may not agree about this particular application, but that’s how this system was supposed to work, wasn’t it?
The next obvious question then is will the Federal government allow that to happen or will it attempt to stop it. My guess is even the Federal government knows it can’t stop it physically, so it will likely resort to legal means (i.e. somehow have the laws declared invalid, thereby again making Federal law supreme and requiring LEOs to enforce them). But that could be a very long and protracted process.
For once (is there a blue moon out there?) in a very long time, the Washington Post and I agree for the most part:
[W]e favor decriminalizing possession of small amounts of pot, assessing civil fines instead of locking people up. Also, for that reason and others, the Justice Department should hold its fire on a lawsuit challenging Colorado and Washington’s decision to behave more leniently. And state officials involved in good-faith efforts to regulate marijuana production and distribution according to state laws should be explicitly excused from federal targeting.
It’s not yet clear how a quasi-legal pot industry might operate in Colorado and Washington or what its public-health effects will be. It could be that these states are harbingers of a slow, national reassessment of marijuana policy. Or their experiment could serve as warning for the other 48 states.
For now, the federal government does not need to stage an aggressive intervention, one way or the other. It can wait, watch and enforce the most worrisome violations as they occur.
Where we disagree is the next to last sentence. If you’re going to stay out of it now, stay out of it later. You can’t “leave it up to the states” until you decide not too. And, it would be a nice decentralization of power – you know, federalism – which allow the states what they were originally supposed to enjoy – a certain level of autonomy (remember, the federal government was originally supposed to be mostly focused externally while the states, within Constitutional limits, pretty much looked after themselves.).
It would be a nice change from the constant attempts by the Fed to accrue power.
But remember, they’re not biased.
What’s a good way to for the Federal government to begin the long road toward economic recovery? Do something that creates incentives for businesses to hire and expand.
Here’s one, but look how it is spun by the NY Times:
By proposing to end a century of federal control over oil and gas drilling and coal mining on government lands, Mitt Romney is making a bid for anti-Washington voters in key Western states while dangling the promise of a big reward to major campaign supporters from the energy industry.
He’s “making a bid for anti-Washington voters in key western states” while pandering to “Big Oil”. That’s it? That’s what this is all about?
State control isn’t really bidding for the anti-Washington vote as much as a return to “federal” government vs.a national or “unitary” government. Here’s the point:
The federal government owns vast portions of states like New Mexico, Nevada, Utah, Colorado and Alaska. Under President Obama, officials in Washington have played a bigger role in drilling and mining decisions on federal lands in the states, and such involvement rankles many residents and energy executives, who prefer the usually lighter touch of local officials.
It owns more than “vast portions”, the federal government owns most of the West. And when an administration like the Obama administration takes the angle on energy it has taken, it is free to block and slow walk oil and gas exploration while carpeting vast stretches of the West with marginally efficient solar and wind farms.
Most believe those sorts of decisions should not be left up to the neer-do-wells in Washington. Those sorts of decisions should be left to the states and those who have to live with the DC decisions. But they’re not. And consequently you see the difference as reflected in the progress in North Dakota (where the decisions are made by the state and local government in conjunction with private property owners) and Nevada (which is 80% owned by the Federal government and where most decisions are made in Washington). North Dakota is booming. Nevada is not.
Federico Peña, secretary of energy in the Clinton administration and now a co-chairman of Mr. Obama’s re-election campaign, said Mr. Romney’s plan would cause more problems for the oil and gas industry. “I cannot imagine a world in where there are 50 different kinds of rules and regulations for industry,” Mr. Peña said. “To see Balkanization of rules and regulation I think would drive the industry crazy.”
Really? Seems the industry is handling it just fine in those states in which it is already happening. And, my guess is they’re willing to endure it in those states where the Federal government now restricts exploration and drilling.
“It is a preposterously bad idea — we are talking about federal trust lands that belong to the whole nation,” said Bobby McEnaney, a senior aide at the Natural Resources Defense Council, an environmental group.
Because it would be impossible to sort out those lands which should actually be in a “federal trust” and “belong to the whole nation” vs. those included just “because”, huh Mr. McEnaney?
Here there is an opportunity to a) actually return to a bit of federalism and get the federal government out of making decisions states could make and b) create incentives that would lead to expansion of an industry, jobs, revenue for the federal government and produce more domestic oil and gas (which would effect the global price of those fuels).
Win-win, yet those possible outcomes are never mentioned by the NY Times.
Instead we get the “anti- Washington” (how dare the proles question their elite masters!) and “Big Oil” spin.
Some things never change.
ObamaCare, as mentioned in a previous post, gets its Constitutional review by the Supreme Court today. CATO’s Ilya Shapiro lays out the agenda:
This morning, as expected, the Supreme Court agreed to take up Obamacare. What was unexpected — and unprecedented in modern times — is that it set aside five-and-a-half hours for the argument. Here are the issues the Court will decide:
- Whether Congress has the power to enact the individual mandate. – 2 hours
- Whether the challenge to the individual mandate is barred by the Anti-Injunction Act. – 1 hour
- Whether and to what extent the individual mandate, if unconstitutional, is severable from the rest of the Act. – 90 minutes
- Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. – 1 hour
Those are critical questions. They tend to define in four points, how threatened our rights are by this awful legislation. Forget what it is about, consider to what level it intrudes and what, if found Constitutional, it portends.
If found Constitutional, you can take the actual Constitution, the one that no fair reading gives an inkling of support to such nonsense as ObamaCare, and cut it up for toilet paper. It will be, officially, dead.
A decision that supports those 4 points (or even some of them) means the end of federalism and the final establishment of an all powerful national government which can (and will) run your life just about any way it wishes. If it has the power to enact a mandate such as that called for in ObamaCare, it can mandate just about anything it wishes. And, if the new conditions on all federal Medicaid funding stand, the states have no grounds to resist or refuse other federal intrusion.
In any event, the Supreme Court has now set the stage for the most significant case since Roe v. Wade. Indeed, this litigation implicates the future of the Republic as Roe never did. On both the individual-mandate and Medicaid-coercion issues, the Court will decide whether the Constitution’s structure — federalism and enumeration of powers — is judicially enforceable or whether Congress is the sole judge of its own authority. In other words, do we have a government of laws or men?
If you’re devoted to freedom and liberty and opposed to intrusive and coercive government, you know how you want this to come out.
And it isn’t to the advantage of ObamaCare.
Those of us on the libertarian-ish end if things support, at the very least, a return of government size and scope to its constitutionally defined bounds. As part of that, the last thing we generally want is more Federal laws about most things. We’re supposed to support a more federal system, and decry most Federal pre-emption of state laws. But I’ve been thinking lately there there are a few Federal laws I’d like to see that do pre-empt local and state laws.
In several states, photographers and videographers have been arrested and charged under various wiretapping statutes for filming police officers and other public officials in public. Just yesterday, I wrote about a young woman who was prosecuted for surreptitiously making an audio recording of police officers who were urging her to drop an official complaint against another officer. Whether you are an elected official or a DMV clerk, your duties should be completely open to public audit—except for some rather obvious and narrow military or national security exemptions—and you should have no expectation of privacy in the performance of your duties. Anybody should be able to film or record you at any time you are performing those duties.
There should be some system whereby any private citizen who has performed federal military or law enforcement service can obtain a federal concealed weapons permit that is valid in every place in the United States, irrespective of any state or local laws to the contrary. Those eligible should have completed at least one term of service with an honorable discharge or its equivalent, have no criminal record, and no history of mental illness.
There have been a troubling number of incidents where police officials have served warrants in the wrong locations, often late at night, resulting in armed confrontations with homeowners. Sometimes, the homeowner is shot and killed. Sometimes, as in the Corey Maye case, a police officer is shot and killed, and the homeowner faces a terrible legal ordeal. That’s just wrong. If the police serve a warrant at the wrong location, for any reason, they forfeit the right to charge the homeowner for any unfortunate gunplay that results. As the police are solely responsible for creating the situation, they should be solely responsible for the outcome, as well as any damages that might accrue from their mistake. This should include prosecution for animal cruelty for a police officer who commits puppycide during these raids. I hate it when they do that, and they seem to do it a lot.
You might notice that all my laws place burdens on the government, not the citizens. Maybe you could suggest some other liberty-friendly laws.
Ezra Klein seems to be bragging somewhat about something that frankly makes him look foolish. Apparently he appeared on C-SPAN with Heritage’s Brian Darling. Darling made the point that the Senate, by design, was supposed to be a voice of the states. Klein disputes that, I assume, because he apparently doesn’t know his history.
Responding to a questioner, [Brian Darling] went so far as to say he’d consider repeal of the 17th amendment, which would mean that senators would again be elected by state legislatures rather than voters.
I’ve never understood this sort of thing, and said so in the panel. The Founders didn’t wisely orient the Senate around states. They pragmatically oriented the Senate around states. But now that we’ve been the United States of America for a while and none of the states seem likely to secede, the fact that California has 69 times more people than Wyoming but the same representation in the Senate is an offensive anachronism, at least to Californians.
Secession? Where did that come from?
It is certainly true, given that remark, that he doesn’t understand Darling’s argument. Here’s Klein’s argument at the link in the cite:
In Philadelphia in 1787, the smaller states favored the New Jersey Plan — one chamber with equal representation per state — while James Madison argued for two chambers, both apportioned by population, which would benefit his Virginia.
The delegates finally settled on the Connecticut Compromise, or the Great Compromise. Seats in the lower chamber would be apportioned by population (with some residents counting more than others, of course) while seats in the upper chamber would be awarded two per state.
The idea was to safeguard states’ rights at a time when the former colonies were still trying to get used to this new country of theirs. But the big/small divide was nothing like what we have today. Virginia, the biggest of the original 13 states, had 538,000 people in 1780, or 12 times as many people as the smallest state, Delaware.
That version, I assume, is one he’s cobbled together to support his view that it was all a pragmatic compromise. But, of course, it wasn’t. It was instead, a very carefully designed system of government. And he misrepresents Madison’s view on the subject completely.
How do I know? Because I’ve read Madison’s writing on the subject in the Federalist papers.
The debate at the time, the concern I should say, was transitioning from the Articles of Confederation to government under the Constitution. All knew it meant a more powerful government at a national level and all were quite wary of that. Remember, those writing the Constitution were state delegations. THAT was the great concern of theirs given the oppressive yoke of imperial England they had just removed from their necks. All, while they may have differed on the structure – and that’s where the arguments took place – wanted a a more FEDERAL government than a NATIONAL government.
After outlining what a republican form of government is, Madison notes the concerns of those who think the Constitution will make it a NATIONAL government vs a FEDERAL government by outlining the differences between the national and federal types. Here’s Madison in Federalist 39:
"But it was not sufficient," say the adversaries of the proposed Constitution, "for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States."
So there, in the hand of the man who drafted the Constitution, are the working definitions of the two terms as they understood them. Note how the FEDERAL form is defined. As you read through the rest of Federalist 39, you’ll find Madison discussing both the NATIONAL model and the FEDERAL model and pointing out some of both are necessary. They had a purely FEDERAL form under the Articles of Confederation. It didn’t work well. They knew that had to put some national powers into the hands of the new government, but they feared such a type of government, so they wanted to limit the scope of that power. He specifically addresses the Congress and how it was purposely designed to limit the power of a national government while importantly preserving some federalism:
The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL.
That one paragraph, in its simplicity, points out for those who will take the time to read and understand it – something Klein may wish to do – that the Constitution wasn’t some “pragmatic” compromise. Klein seems unable to understand that the purpose of the Senate is to provide coequal political representation to the states. That representation was to act as a brake on both the national government and the people (another “national” entity) who were represented in the House. The equal representation of the states in the Senate was also meant to prevent the larger states from running roughshod over the smaller states, something which happens quite frequently in the House. What Klein seems to want is another House in the Senate. He seems totally unfamiliar with why the Senate was designed as it was. Just read his thoughts on how he’d structure it and you’ll see what I mean.
Madison considered the final product to be a necessary mix, not a pragmatic compromise, of federal and national power conferred on the government in order to make it work properly but keep the national power in check. The mix of both was designed to give the government the necessary powers it lacked under the Articles of Confederation while also, and this is critical to the success of that design, preserving the rights and power of the states.
The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
The 17th Amendment destroyed that design and balance. Look at the mess that has wrought. Repealing the 17th Amendment would begin to walk the national government back to this mix of government designed by the founders. Since the amendment’s passage, the government has shifted to a wholly national government and states have essentially lost their sovereignty and their rights. We have paid the price and suffer the consequences.
There are certainly other contributors to that situation, but the 17th Amendment is one of the biggest contributors. Klein needs to acquaint himself with the actual design of the Constitutional government built by the founders like James Madison. There’s an entire book that will do that for him – “The Federalist Papers”. If he’d read them, he might not look quite so foolish the next time he attempts to pontificate on what the founders thought.
UPDATE: Great minds think alike, I suppose – Brian Darling’s rebuttal (replete with Federalist 39 reference).
UPDATE II: James Joyner and Steven Taylor join the fray. I’d only say to Dr. Taylor’s assertion that Madison’s writings in Fed.39 were a "post-hoc rationalization", that they could just as easily represent a "post-hoc realization" that they had in fact designed a very good model for government and thus the "eloquent" argument. Personally I’ve never been able to argue eloquently for anything in which I didn’t believe in passionately.
This is “change” (with the appropriate hat tip to the Obama administration) I can support:
U.S. Attorney General Eric Holder is sending strong signals that President Obama – who as a candidate said states should be allowed to make their own rules on medical marijuana – will end raids on pot dispensaries in California.
Radley Balko says:
It’ll be interesting to see if this tiny bit of federalism will hold should some states or cities decriminalize or even legalize marijuana entirely.
That’s the true test. While what Holder is saying is encouraging, the proof will be how the feds react to the types of moves Balko notes above. If the states are going to truly be left to make their own rules, that will be the test.
After the federal Drug Enforcement Agency raided a marijuana dispensary at South Lake Tahoe on Jan. 22, two days after Obama’s inauguration, and four others in the Los Angeles area on Feb. 2, White House spokesman Nick Schapiro responded to advocacy groups’ protests by noting that Obama had not yet appointed his drug policy team.
“The president believes that federal resources should not be used to circumvent state laws” and expects his appointees to follow that policy, Schapiro said.
We’ll see if this precedent (and policy) is confined to things like MJ laws or will be extended to such things as school vouchers and the like.
In my last post, I argued that the Seventeenth Amendment should be repealed. Once upon a time, Americans from across the political spectrum could agree on at least one principle of good governance: federalism, or more generally, localized decision-making.
To put a fine point on it:
- Your state knows its own values and interests better than the national government does.
- Your county knows its own values and interests better than the state government does.
- Your city knows its own values and interests better than the county government does.
- Your neighborhood knows its own values and interests better than the city government does.
- Your household knows its own values and interests better than the neighborhood does.
- And you arguably know your own particular values and interests better than other members of your household do.
Depending on who’s won lately, the people in power at higher levels of organization may approximately reflect your values and interests, but the further away they get, the less likely this is to be the case. Simply put, the more people you have to represent, and the further they are away from you, the harder it is to faithfully represent them all.
Even if your Congressman is a tremendously intelligent and virtuous man, what he doesn’t know about his constituents’ beliefs and circumstances could fill libraries.
So as a general rule, it makes sense that we should want matters to be decided at the most local level possible. If you have a personal problem, you have the greatest incentive to fix the problem, your values will determine what trade-offs you’re comfortable with, and the matter probably shouldn’t leave your household — or at worst, your peer groups. If it doesn’t naturally spill over into other people’s lives, they don’t want you to make it their problem.
Largely because so much power has accrued at higher levels of government, people increasingly turn to the impersonal and ignorant forces of those higher levels to handle their problems. Today, the federal government has so much power, reaching down to the most local possible decisions, that people focus an inordinate amount of their attention and aspirations on who controls it and what they do with it. Everyone’s fate is determined by whose collective hand controls the Biggest Lever.
I cannot stress enough how dangerous a development this is. Let’s leave aside, for the moment, how centralized control and planning tend to double down on mistakes rather than correct them. They have much more insidious effects.
Making everything a national issue has poisoned the national debate. It is a significant cause of the Culture War (see Roe v Wade, or Defense of Marriage Act). It has contributed to making politics personal, and it’s why so many people have become emotionally invested in the person of the President. Think about how much more common it has become for both parties to use the language and imagery of dictators to describe the president — usually when we disagree with him.
Bottom line: it is difficult to tolerate your neighbor’s difference of opinion if his opinion controls your life. It has become too difficult to mind one’s own business.
Let that marinate for a minute, and I’ll move on to my suggestion for one solution. Continue reading
George Will argues we should repeal the Seventeenth Amendment. I doubt it will happen–too many people are convinced of the Populist notion that the more direct the democracy, the better. But I’ve been arguing for years that this measure would restore a great measure of federalism to the US, and that we would generally benefit from such a change.
Doug Mataconis of Below the Beltway isn’t so sure. He writes,
As I’ve noted before, it’s a provocative argument, but I think there’s something missing:
My take on the subject is this — from a procedural point of view the 17th Amendment is certainly one of the factors that has made the expansion of Federal power, and the erosion of Federalism, more easy to accomplish. Returning to direct election of Senators *might* have a positive impact, but that will only happen if the Senators elected have a proper understanding of their role under the Constitution.
And if the state legislators appointing them have that same understanding.
Given the political climate in America today, having Senators who are beholden to the whims and wishes of state legislators is unlikely to produce a better breed in the Upper House than having Senators who are beholden to the whims and wishes of voters.
In some sense, repealing the 17th Amendment involves turning back the clock in more ways than one. We can return to the procedural methods that the Framers first put in place, but that doesn’t mean that the philosophy that will guide the Senate will change in any significant respect.
I can’t comment on whether we’d get a “better breed”, but the procedural change would change the practice, if not the philosophy, of senators. As I argue in the comments, the purpose of many of the checks and balances in the Constitution of the early republic was to have people in power answer to those who were jealous of their own power. Repealing the Seventeenth wouldn’t cure all ills, but it would help.
For example, the federal government has extended its power over state and local matters by using its superior funding power to provide goodies, and attaching strings to that money.
If we posit that state legislators want to arrogate more power to themselves, then–given the power–they will resist those strings. US Senators, realizing that their appointment to the Senate (and all the attendant benefits) requires pleasing the state legislators, will avoid attaching those strings. They don’t need to understand anything except who’s buttering their bread.
Let’s say that state legislators still like the idea of getting federal money without having to levy their own taxes. Well, if the Senate tries to appropriate no-strings-attached money for the states, naturally the House and President will resist. They don’t want to levy taxes and receive no controlling benefit in return.
A smaller number might be ideologically committed to using the superior federal power of taxation to fund these goodies, but not having strings attached to federal money would dull the incentive.