Published in the Maryland Daily Record January 14, 2013
Periodically, the moment known as spring cleaning arrives. We scour out closets and garages and attics, and rid ourselves of accumulated bric-a-brac, of objects that (rightly or wrongly) seemed like good ideas when we acquired them, but no longer do. Garage sales, passing things along to Goodwill, and just putting junk out on the curb for the sanitation workers – all these tactics are vital to our domestic success. If we didn’t cull and toss the accumulated flotsam now and then, it would eventually render our homes impassable and uninhabitable.
The national household is no different. And what with a presidential inauguration and a new Congress right around the corner, it seems like spring cleaning time right now, even in the dead of winter. Time to rid ourselves of some laws that block up the hallways of our national home and impede the country’s progress. I have three that I would suggest hauling away.
The Obsolete Second
The first is the Second Amendment. The post-Newtown discussion seems to be shaking down, all too quickly, to talk of an assault weapons ban and checking up on gun purchasers for mental health problems and criminal history. These are certainly worthy goals, but one root of the problem is the Second Amendment itself. It may have been a good idea at one time, but only because at that time, 1789 to be precise, in the very words of the Amendment, a “well-regulated Militia” was “necessary to the security of a free State.” The United States faced real threats to its security, in the forms of England, France, and the Native Americans, all of whom it would have to fight in the following three decades. And it had but a negligible standing army.
In these modern times, however, we have this thing called the Pentagon. Also a standing armed force of about 1.5 million, augmented by reserves and a National Guard about doubling that strength. This force has an annual budget of about $700 billion, as big as those of the next twenty military spenders combined. To suggest that a citizen militia dependent upon weapons owned by individuals is “necessary” to our “security” in view of this massive military ownership of weapons is simply absurd.
Even more absurd is the fantasy that local militias (if they truly existed outside the National Guard) could “take back” America from its rulers if the need arose. If this notion of the purpose of militias ever had any validity, it has none now. The U.S. military would crush any armed rebellion. In fact law enforcement could do the job without military help.
The fantasy is so hare-brained one might almost think it harmless. But the parents of Newtown probably do not think it so. We need to get rid of the notion of an individual constitutional entitlement to bear arms. What privileges to bear arms might follow repeal could be tailored to a more realistic public policy.
The Busted Filibuster
Secondly, we need to get rid of the Senate filibuster. Technically, there is no “filibuster rule,” only the absence of any rule limiting Senate debate, save for Rule XXII, the “cloture” rule, which requires a super-majority to close a debate. Effectively, the filibuster gives a Senate minority enormous power to prevent action by the majority. At one time, this restraint might have been thought a desirable feature of the Senate’s constitutionally-anticipated role of ensuring deliberation and caution in the legislative process, as a counterweight to the overeager populism of the House of Representatives. But if one can speak of restraint gone wild, that is what has happened with the filibuster. It used to be rare, and now is commonplace. (There were, for instance, over 100 cloture votes in 2009.) And to gauge the obstructive power of the rule, consider just this: there are 33 federal judicial nominees awaiting Senate confirmation, and many have been held up over a year, mostly because the minority will not allow them to be voted on.
We are at a very definite “spring cleaning” moment with respect to the filibuster. A rule change that would dis-enable filibusters would ordinarily be sought to be filibustered itself, but at the start of a new Congress, the rules of a previous Congress arguably do not exist and a simple majority of the Senate can at least theoretically vote, filibuster-free, to amend the rules. (Alternatively, the constitutional power of the Senate to determine its own rules may be held not to be subject to those rules; this is the so-called “constitutional option.”) I put the matter in somewhat iffy terms because no one is exactly sure what can be accomplished. But this does seem to be the moment, with an American public clearly disgusted by Congressional inertia, for which filibusters and the threat thereof clearly bear their share of the blame.
So let’s do it. Let’s have the Senate pass a rule that brings every motion to the floor in a reasonable time.
Marijuana Prohibition: Solution to a Non-Problem
Third, let’s repeal 21 U.S.C. § 812(c)(10), the provision that makes a “Schedule 1 controlled substance” out of marijuana. To be on that list in the first place, marijuana had to appear to have a “high potential for abuse” and to have no accepted medical application. Perhaps at one time there was a consensus on those two points. But a majority of Americans would now differ with both propositions. What does “abuse” even mean for a recreational drug? If one smokes marijuana to get high and succeeds, is that not “use” rather than “abuse” by definition? As to accepted medical application, at least two states would, left to their own devices, permit medical marijuana.
Marijuana may not be good for you. It seems not to be terribly bad for you, however. It will intoxicate you and might habituate you and might be mildly associated with other diseases, but with alcohol, we have already accepted a very addictive and rather toxic intoxicant in our midst. This horse-is-out-of-the-barn-already argument, standing alone, might not be a good enough reason to legalize pot, but the human cost of all the incarceration for marijuana cultivation and possession certainly is. We are currently imprisoning about 45,000 Americans for possession of this not-terribly-bad-at-worst substance – and the vast majority of the marijuana prisoners are users, not dealers. Nor should we forget the financial cost; in 2000, it was estimated that the total cost of marijuana prosecutions and incarcerations was $14 billion. To me, spending that kind of money to seriously disrupt the lives of so many people for something that poses so little real threat to public health and happiness – and whose legalization public opinion favors – is one terrible idea.
The federal statute is the key. If we get rid of it, the states will be free to respond to public pressure. Polls suggest that we have passed the tipping point, with more Americans favoring repeal than not, and more Americans opposed to federal enforcement than not. We survived the end of Prohibition, and we would survive the end of marijuana prohibition as well.
So there you have it: three commonsense suggestions for laws the nation could leave at the curb at this moment of national renewal. Letting things go is as vital a skill for a nation as for a householder. So let’s haul trash! Last one out is a rotten hoarder
. It is apparent that the framers of the law were thinking in terms of medicinal drugs when they inserted this language. It is meaningfully “abuse” to divert medicine to use as an intoxicant, because there is a proper, i.e. medicinal, “use.” See Hoffmann-La Roche, Inc. v. Kleindienst, 478 F.2d 1, 6 (3d Cir. 1973). But if one denies the propriety of using as an intoxicant a plant grown purely for its properties as an intoxicant, then effectively one denies that there is any lawful “use” for it. “Abuse,” however, linguistically depends for meaning upon its opposite, namely “use.” The absence of any accepted “use” thus seems to negate the meaningfulness of “abuse” in turn. Arguably, therefore, the assignment of marijuana to Schedule 1 is erroneous because, linguistically speaking, there is no “potential for abuse,” never mind the “high potential” the statute requires.
Copyright (c) Jack L. B. Gohn