Proposition 19

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In November Californians will be voting on Proposition 19, a law that will legalize the possession, transport, and cultivation of small amounts of marijuana. Polls indicate that over 50% of Californians support the measure. It raises some interesting political questions.

The law is not going to authorize a marijuana free-for-all. Consuming it in public will still be prohibited, as will driving under the influence and selling it to minors. In fact, private individuals will be prohibited from selling it at all. Only licensed outlets would be able to sell it, and then in amounts less than one ounce. Private individuals would be limited to growing it on 25 square foot plots.

So what happens if it passes?

Depending on how you count it, California has between the seventh and tenth largest economy in the world, if you treated it as an independent nation. It has a population of roughly 38 million out of a U.S. population of 305 million, a little over 12%. It also has a projected $20 billion budget deficit and a crippled tax system. From what I read, the projected market for legalized marijuana in California would be $14 billion a year, dwarfing its vegetable crops and providing over a billion dollars a year in revenues. Releasing the 74,000 people in California prisons for marijuana offenses would save the state another billion.

I can see California fighting for 10% of its deficit. Money not only talks, it gets belligerent. Obviously, the state law would be in conflict with a welter of federal drug laws and enforcement efforts. The question is whether Washington and the Obama administration have the will to face down that 12% of the country.

It makes me think of the Berlin Wall. I was in West Berlin in 1988 and the wall seemed as if it would be there for another century. In 1989 the Soviet Union was coming out of the disastrous Afghan war and floundering in red ink due to low oil revenues. Hungary opened itself up as a conduit from East Germany to Austria in August 1989 and a stream of packed automobiles started making the trip to the west. There was some turmoil between this and the final opening of the border in November, but what it came down to was a lack of will on the part of the Soviets and Soviet bloc governments to intervene.

The Obama administration has been more compromising than combative in the face of opposition. I can’t see the feds raiding 25 square foot plots all over California without the cooperation of local and state police. It will go to the courts, for sure, but much can happen in the meantime.

Here’s a narrative for you: Proposition 19 passes. Various members of Congress express deep concern, as does the Obama administration, which starts legal proceedings. Much legal maneuvering ensues, paralleled by political maneuvering. California goes ahead with its implementation while the case goes through levels of appeal. Marijuana becomes legal in California and the world doesn’t end. Hundreds of millions of dollars in tax revenue start rolling in. California police are freed up to pursue criminals of all other types. Other states start noticing the cash flow and look thoughtfully at their own budget problems. Hawaii, which has already essentially legalized small possession and cultivation, follows suit. Colorado joins the revenue rush, along with Oregon, and Massachusetts. More states follow, and any Supreme Court decision is rendered moot. The feds drop whatever appeal is pending.

The thing that interests me about this possibility is the change in the balance of power between states and the federal government. I hear a lot in the news media about reactionary political movements such as the Tea Party, which emphasize a distrust of the federal government and an emphasis on state and local authority.  To them Prop 19 must be a case of “be careful what you wish for.” There are also more progressive decentralists who would welcome legalization. The reactionaries see the feds as pushing an economic and social agenda anathema to their beliefs. The progressives see the feds as sellouts to corporate power. Either interpretation can be used to promote devolution of power to the states.

It’s partly a question of legitimacy. Does the government in question act in a way that serves the best interests of its citizens? In the case of the War on Drugs, I would join many people, including over half of Californians, in saying no. Without legitimacy, it is a question of force and the will to use force. Sure, there are constitutional issues and the path through the federal courts, but even if the Supreme Court decides against California, what are the consequences? Sanctions on 12% of our population and a huge section of our economy? California sends more money to the U.S. Treasury than it gets back and exports huge amounts of food to the rest of the country. Federal troops? Not even a remote chance of that. California’s conformity with federal law depends on California’s willingness to play the game.

Arizona’s recent foray into immigration law was mostly shot down. The judge ruled that the law transgressed on federal jurisdiction over borders and immigration. In contrast, Proposition 19 specifically prohibits the import or export of marijuana across California’s borders, which dodges a constitutional challenge via the interstate commerce clause.

What happens when a state looks the federal government in the eye and Washington blinks?

Is this the beginning of a new sense of initiative at the state level? With a Democratic governor Vermont could implement the single payer system that Congress never considered. Same-sex marriage laws are cropping up, despite the federal Defense of Marriage Act. Will there be more state-chartered banks, like North Dakota’s, to challenge the Wall Street behemoths? Is this the beginning of the devolution of an empire? The federal government is hobbled by corruption, both in terms of legislative paralysis and credibility. The wealthy and the corporate beasts enjoy privilege and protection while the working stiffs struggle and seethe. The government is deep in debt, not yet fatal, but seemingly without a plan to dig itself out. It is in the slow process of extracting itself from two long, debilitating wars, without any signal success in either. What couldn’t be achieved directly by rebellion in the 1860s may be accomplished de facto by an enfeebled grip. Proposition 19 looks like the beginning of a trend to me.

Judicial Theory, Judicial Practice

I have been reading about the recent Supreme Court decision, McDonald vs. City of Chicago, striking down Chicago’s ban on the private possession of handguns. What interests me about this decision is not so much the subject itself as the way it illuminates the lack of a consistent judicial theory among the court majority.

Theoretically, this is a state's rights court. The majority claim to want the minimum of federal interference in the rights of states to chart their own legislative and judicial courses. Agree with it or disagree with it, McDonald is yet another extension of federal jurisdiction. Of course, the court pitched out states rights in favor of political interest with the Bush vs. Gore decision, but this is not an aberration – it’s a trend.

There is another odd contradiction here. The majority opinion in this supposed state’s rights court discussed with approval the so-called “privileges or immunities” clause of the 14^th Amendment.  That clause reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;” The clause was written specifically to protect newly freed slaves from racist laws in southern states. Back in 1873 the Supreme Court invalidated this clause in what are known as the Slaughter-House cases, and did so on a strong state’s rights basis. While the present court didn’t actually overturn the 1873 decision, it showed a decided interest in the revival of the privileges or immunities clause.

David Gans, in an article on the Scotusblog, notes that Justice Alito promotes a “robust” interpretation of the due process clause of the 14^th Amendment as an alternative to a revival of the privileges or immunities clause. (“;nor shall any State deprive any person of life, liberty, or property without due process of law;”) Wait a sec. The use of the due process clause has caused much clamor in conservative circles, as progressive judges have used it as just such an end run around Slaughter-House to advance civil liberties cases. Conservatives tend to view this practice as legal gymnastics in the service of judicial activism. Apparently it isn’t judicial activism if the NRA approves of it.

Also, theoretically, this is an originalist court. They claim to be, as Chief Justice Roberts expressed it, umpires calling balls and strikes, looking back to the original intent of the framers of the constitution. Originalists try to decipher the meaning of words to the framers in their time and attempt to determine the mindset of those men at that time. I (and many constitutional scholars) think this position is a crock for a variety of reasons, but it is the majority opinion in this court.

Even so, they are inserting an imaginary "A musket over the fireplace being necessary for farmhouse defense" clause in place of the actual "A well regulated militia being necessary for the security of a free state" clause. The majority opinion in McDonald, as in the Heller decision overturning Washington D.C.’s handgun ban, also cited the popularity of handguns as the self defense weapon of choice for modern Americans. With the handgun popularity issue, these so-called originalists are arguing from a position of modern day utility.

An originalist would recognize the militia clause as explaining the framers' intent. The framers of the constitution still held the romantic notion that yeoman farmers were capable of picking up muskets and defeating a professional army. George Washington knew better and relied on the Continental line troops, but the Jeffersonians had a utopian agrarian vision. (Which cost them the burning of D.C. in the War of 1812) The framers offered citizens a collective right to "bear arms" (a military term at that time) in order to defend the state, not themselves. We do, in fact have a well regulated militia, the National Guard, but this pseudo-originalist court wouldn't recognize that. Contrast this with many state constitutions (such as ours in Vermont) that actually specify personal self defense (Article 16) as a reason for possessing arms.

Whether you agree with the decision or not, it presents a court majority that has functional, though unacknowledged, political theories, but only pays lip service to a consistent judicial theory. It touts states rights when that suits its purposes, and resorts to federal authority when that suits. Originalism works for them when striking down progressive legislation, but takes a back seat when modern conservative opinion disagrees.