Archive for the 'Public Opinion' Category

Reasons to Get High… No Really

Posted by on Nov 21 2012 | Drug Policy, Economics, Polls, Popular Constitutionalism, Popular Culture, PPC, Public Opinion, Regulation, Tenth Amendment, U.S. Constitution

There are some good reasons to get high on pot.

The Independence Institute held no position on Amendment 64, legalizing recreational marijuana. And I know not everyone is thrilled about Colorado becoming the Amsterdam of America. But like it or not, it is in our state constitution.

So let me throw out this idea – even if you hate pot being legal, there are some great victories for limited government hidden inside this issue.

First, we finally have a state-rights issue that the Left can, must and will understand and fight to preserve.

Marijuana is still very illegal by federal law, but now it’s protected by our state constitution. I am no legal expert on the U.S. Constitution, but I don’t see anything in it that gives the Feds power over Colorado on this one. But what the hell do I know? I didn’t see anything in it that could let the Feds tax us for not buying health insurance.

Pardon me for stealing this phrase, but, this is a great teachable moment. This is a massive opportunity for those of us who fear the growing central authority in D.C. Some portion of the Left will now agree with us. We need to embrace this challenge and take a lead in educating Coloradans about the Tenth Amendment before the Left tries to pervert it somehow.

In order for those who support pot to keep in legal in Colorado, they MUST embrace the Founders’ ideal of Federalism. And I believe we need to help them understand the power of this simple ideal, and why it applies to a whole lot more than weed.

But if you hate Amendment 64 and wish it smothered out of existence, the only way that can happen now is if you embrace what the Left embraces: federal power trumping the expressed wishes of a sovereign state. Perhaps, like health insurance, the Feds can tax us for not purchasing dope, but they’ll have to pervert the Constitution (again) to override the vote in Colorado.

Here’s the second little prize in Amendment 64. Legalized pot MIGHT force some on the Left to face their hypocrisies, like their confusion on property rights and freedom of association.

In Colorado, it is illegal for an owner of a private establishment to allow tobacco smoking in their bar or restaurant. No one here is free to enjoy a cigar and a steak, or a cigarette and a cup of coffee, in the same place and time. Smokers cannot freely associate with other smokers, enjoying their legal product, in private establishments. Smokers are treated like lepers. My elitist hometown of Boulder is about ready to make smoking outdoors on the Pearl Street Mall illegal. Now that about 65% of Boulder voted for pot, will pot smokers and their business owners be treated like their tobacco-smoking brethren?

Tobacco is taxed at an exorbitant rate, regulated to the point of making it a controlled substance. State cigarette tax windfalls are spent on childhood reading programs and building sidewalks. Will the state heap wild sin taxes on pot and spend that money in ways that have nothing to do it?

I am looking forward to owners and customers of pot businesses opening their eyes (if they can pry their baked eyes open) to how abusive regulation destroys what they are trying to build.

We have a problem getting our message of limited government outside of our own echo chamber. If you doubt that, I’ll remind you of the last election. Well, here’s an uncomfortable opportunity to try something different.

Let’s channel our best Voltaire: I disagree with your decision to legalize pot, but I’ll defend to the death your state’s right to do it.

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President Obama versus the Constitution

Posted by on Apr 02 2012 | congress, Constitutional History, Constitutional Law, Constitutional Theory, Counter-Terrorism Policy, Executive Branch, federalism, Growth of Government, Habeas, Health Care, History, Individual Mandate, Jefferson, Judicial Power, obama, Presidency, Public Opinion, supreme court, Uncategorized, War on Terror

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

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