My former colleague and neighbor Jesse Walker, in the course of an “appreciation” of exiting Sen. Russ Feingold — whom he calls “the Bob Barr of the left” — expresses the briefest note of sadness over the failure of California’s Proposition 19, the Regulate, Control and Tax Cannabis Act of 2010. I will demur.
Sadness? At a law that, had it passed, would have regulated and taxed the use of a common plant — a lovely weed and an amazing source of industrial fiber as well as widely used herbal remedy? No. All those regulations and taxes would only have skewed the cultivation and marketing of the plant from personal and small-business operations to Big Business. Right now Californians are increasingly cultivating and openly using marijuana. In defiance of the federal government, no less.
But with the initiative, the state would have started cracking down on little producers, and making it harder for small business to provide their customers with the drug. [Keep reading…]
According to breaking news, a federal district court has overturned Proposition 8, a ballot proposition that amended the California Constitution to prohibit same-sex marriage. Prop. 8 was meant to overturn the California Supreme Court’s ruling in In re Marriage Cases that same-sex couples have a constitutional right to marry. (Although none of the numerous reports I’ve seen note the name of the case, it is Perry v. Schwarzenegger; PDF.)
Gay rights advocates filed lawsuits to have the constitutional amendment declared unconstitutional. I predicted they would lose. First, they could not prevail on state constitutional grounds since Prop. 8 actually amended the California Constitution. You can’t argue a provision of the constitution is unconstitutional. So the question is whether this provision of the California Constitution violates the Fourteenth Amendment of the U.S. Constitution (see my The Libertarian Case Against the Fourteenth Amendment). In my view, it clearly does not; any argument that such a law violates equal protection is ludicrous–there is no way the equal protection clause at the time of the ratification of the Fourteenth Amendment (1868) was understood to be so broad as to prohibit state laws that treated same-sex unions differently than traditional, heterosexual ones. As for due process–this was a validly enacted constitutional amendment, following regular legal procedures. So it was not a violation of due process (as for the doctrine of “substantive due process“–well this is a ridiculous, obviously dishonest, invented concept; process is, um, procedural).
And yet the federal court has found a way to get its result, by twisting the law to fit its ruling–like the Supreme Court did in Bush v. Gore, with its absurd application of equal protection.
Enough signatures having been gathered for The Regulate, Control and Tax Cannabis Act of 2010, Californians will have the chance to vote on legalizing marijuana next November. The measure, known popularly as the “Tax Cannabis Act,” would decriminalize the plant and its psychoactive uses statewide, leaving it to the state’s counties and cities to tax and regulate . . . or continue to prohibit. (If passed it would also severely test the two weakest Amendments to the United States’ Constitution, the Ninth and Tenth.)
Though this could be a major step forward against the barbaric war on drug use, may I express some sadness at the measure’s title, and the way some folks argue for it? “Legalize it so we can tax it!” What a depressing mantra. This binding of freedom to eternal victimhood by the state irks me. It’s the giving of a base reason to do a noble thing.
Of course, nobility of thought is the last thing on most people’s minds. [Keep reading…]