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Saturday, July 12, 2003

Liberty v. Marijuana Prohibition: Michigan Supreme Court Justice T. G. Kavanagh's opinion should have controlled then...

Tony Adragna
Several days ago, I wrote about how Justice Kennedy's Liberty jurisprudence wouldn't mean the end of "regulation", but it would require the end of "prohibition." One example of reasonable regulation would be "don't toke & drive" laws.

So, today I'm visiting some of Jeff Cooper's links, and I come across an item at Unlearned Hand [who got it from Talk Left] concerning the dismissal of a conviction for marijuana possession. [update: not the first time a Superior Court judge in Alaska has done this on the same basis]

The conviction was dismissed by a state judge in Fairbanks, Alaska who relied on that state's Supreme Court precedent, which had already spoken on the constitutionality of state laws banning possession & use of marijuana in the home, finding those laws an unconstitutional infringement of the "right to privacy" under both the Alaska & Federal constitutions.[n.b. Unlike the U.S. Constitution, Alaska's does actually enumerate a "right to privacy" — it was added by amendment in 1972]

The Alaska Supreme Court case cited is Ravin v. State (537 P.2d 494), but nobody provides a link to the opinion![He screams in exasperation!!] So, I googled one up — Ravin v. State, in the Supreme Court of Alaska, May 27, 1975.

Now, several things to note here. First is the Court's reliance on a "right to privacy" protecting marijuana possession in the home. Not finding a "fundamental right to marijuana possession" — indeed, the court [noted that] " the fundamental right-compelling state interest test in resolving privacy issues under article I, section 22 of Alaska's constitution" [would have them find no such fundamental right] — the Court still finds that the state hasn't met its burden of " show[ing] that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest."

The Court does find that there may be some legitimate interest in prohbiting "activities which [do not] have a present and immediate impact on the public health or welfare"
It is conceivable, for example, that a drug could so seriously develop in its user a withdrawal or a motivational syndrome, that widespread use of the drug could significantly debilitate the fabric of our society. Faced with a substantial possibility of such a result, the state could take measures to combat the possibility. The state is under no obligation to allow otherwise "private" activity which will result in numbers of people becoming public charges or otherwise burdening the public welfare. But we do not find that such a situation exists today regarding marijuana. It appears that effects of marijuana on the individual are not serious enough to justify widespread concern, at least as compared with the far more dangerous effects of alcohol, barbiturates and amphetamines. Moreover, the current patterns of use in the United States are not such as would warrant concern that in the future consumption patterns are likely to change.
The Court goes on to address two areas where the state does have legitimate concerns — "avoiding the spread of marijuana use to adolescents who may not be equipped with the maturity to handle the experience prudently, as well as a legitimate concern with the problem of driving under the influence of marijuana. Yet these interests are insufficient to justify intrusions into the rights of adults in the privacy of their own homes"

That's the heart of the opinion. But what caught my eye as I read it was the Court's reference to a 1972 Michigan case
One of the justices in People v. Sinclair, Justice T. G. Kavanagh, rested his opinion squarely on the basic right of the individual to be free from government intrusions. He found the marijuana possession statute to be "an impermissible intrusion on the fundamental rights to liberty and the pursuit of happiness, and is an unwarranted interference with the right to possess and use private property." He noted the basic freedom of the individual to be free to do as he pleases so long as his actions do not interfere with the rights of his neighbor or of society. ". . . 'Big Brother's cannot, in the name of Public health, dictate to anyone what he can eat or drink or smoke in the privacy of his own home."
I couldn't find a link to Sinclair, but I did find a site that excerpts from the opinion. John Sinclcair's conviction was overturned on various grounds
The Supreme Court held that conviction would be reversed and defendant discharged; two judges being of opinion that statutory categorization of marijuana along with 'hard drug' narcotics for purposes of imposition of penalties denied equal protection, one judge being of opinion that statute denied right to liberty and pursuit of happiness, two judges being of opinion that marijuana cigarettes should have been excluded as evidence obtained as result of illegal entrapment, and two judges being of opinion that minimum sentence of 9 1/2 years constituted cruel and inhuman punishment.
I find the most persuasive rationale that of Justice Kavanagh — read the excerpts from his opinion
I find that our statute violates the Federal and State constitutions in that it is an impermissible intrusion on the fundamental rights to liberty and the pursuit of happiness, and is an unwarranted interference with the right to possess and use private property...

As I understand our constitutional concept of government, an individual is free to do whatever he pleases, so long as he does not interfere with the rights of his neighbor or of society, and no government--State or Federal--has been ceded the authority to interfere with that freedom. As has been said:'. . . the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of these number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral is not a sufficient warrant.' J. S. Mill, On Liberty, Chapter 1...

Whatever the validity of the concept that Traffic in marijuana is freighted with a proper public interest, it is extending the concept entirely too far to sanction proscription of possession and private use of it. Although it is conceivable that some legitimate public interest might warrant state interference with what an individual consumes, 'Big Brother' cannot, in the name of Public health, dictate to anyone what he can eat or drink or smoke in the Privacy of his own home...

In my view when the legislature proscribed the possession and private use of marijuana as a Public health measure it did so unconstitutionally...
He mentions "Privacy" and "private use", but Liberty is doing all the work here. Why didn't the court in Alaska take that same tack?

Dunno. But, after Justice Kennedy's opinion in Lawrence I expect Liberty's going to get her shield arm a good workout. A good place to start would be a challenge to federal drug laws that are right now being used to supercede state laws. Even if a state were to decriminalize marijuana possession & use, people may still face federal prosecution — just look at what's happened with the states' "medicinial marijuana" exceptions.

The question would have to be different than that put in Oakland Cannabis Buyers' Cooperative[pdf] — "whether there is a medical necessity ex-ception to [The Controlled Substances Act] prohibitions." Instead, the challenge I'm suggesting would ask the Court to decide whether the prohibition of marijuana itself is constitutional.

Kavanagh's opinion should've controlled in Sinclair, its rationale should've been more persuasive in Ravin, and if Justice Kennedy's rationale in Lawrence goes to its logical limits, then the Court must find the marijuana prohibition unconstitutional.

Friday, July 11, 2003

"Kennedy’s Libertarian Revolution"

Tony Adragna
Over at NRO, Randy Barnett helps midwife Liberty out of Justice Kennedy's pregnant Lawrence opinion
The more one ponders the Supreme Court's decision in Lawrence v. Texas, the more revolutionary it seems. Not because it recognizes the rights of gays and lesbians to sexual activity free of the stigmatization of the criminal law — though this is of utmost importance. No, the case is revolutionary because Justice Kennedy (and at least four justices who signed on to his opinion without separate concurrences) have finally broken free of the post-New Deal constitutional tension between a "presumption of constitutionality" on the one hand and "fundamental rights" on the other. Contrary to what has been reported repeatedly in the press, the Court in Lawrence did not protect a "right of privacy." Rather, it protected "liberty" — and without showing that the particular liberty in question is somehow "fundamental." Appreciation of the significance of this major development in constitutional law requires some historical background.
What follows in his commentary is much more cogent than what I wrote — though we agree — and ought be the conventional understanding of Lawrence.[he does note that if Kennedy had "been far more transparent... this would have lost some votes by other justices" for being so "revolutionary", and that probably answers my question on why so many legal professionals are having problems parsing the decision. Thankfully, not having a formal legal education I'm unencumbered by that community's conventional wisdom]

At least some law students are impressed with Lawrence, and equally unimpressed with some of the commentary they've been reading. Chris at Law, Politics, & Press offers a devastating response to Jeffrey Rosen's rant
It soon [...] becomes clear that Rosen is the activist here, not Kennedy. It is “political backlash” Rosen fears, he reveals two-thirds of the way through his analysis, not the “ressurecti[on]” of “an unprincipled and unconvincing constitutional methodology” as he first claims.
Yes, I've read a lot of commentary, [especially] from some liberals, opining that this decision is the worst outcome for the "political backlash" that will ensue. I think that reasoning flawed on two counts: 1) no matter the outcome, there was going to be some backlash, so the complaint is silly; 2) don't we want judges deciding cases independently of — even despite on occasion — political considerations?

Thursday, July 10, 2003

Rev. Pat Robertson's Liberia Investment...
He Better [Pray] the Losses can be Writen Off!

Tony Adragna
From Rev. Robertson's June 6, 2002 letter to Sec. Powell
I have recently received a report dated April 24, 2002 prepared by the International Crisis Group (ICG) dealing with the situation in Liberia...

This report contains an extraordinarily detailed account of the crisis in Liberia and verifies the shocking fact that the new Liberian rebel group "LURD" (Liberians United for Reconciliation and Democracy) is being openly and directly supported by the Government of Guinea.

The report continues that the United States and Britain "support their war-at least in principle" and that LURD has had contact with "mid-level US and British military officers in Freetown and Conkary and more senior US officials in the State Department and Pentagon who have sent encouraging signals."

The report also indicates that the United States "gives significant non-lethal military assistance" to Guinea and has scheduled a $3 million program to train and equip an 800-man rapid reaction force of the Guinean Army. This despite further word in the report that the leader of Guinea has a worse human rights record than Charles Taylor of Liberia...

May I respectfully inquire as a taxpayer of the United States and one with significant financial investment in Liberia why the State Department of the United States of America is determined to bring down the President of Liberia who was elected in 1997 as president in elections which the ICG reports that the United Nations, President Jimmy Carter, and all other neutral observers determined were substantially free and fair?
The International Crisis Group's April 24, 2002 report, "Liberia: The Key To Ending Regional Instability"[pdf], certainly says all of those things about Guinea, U.S.-Guinea relations, and U.S. "support... in principle" of LURD. But, Robertson, not able to take a clue from the report's title, manages not to find any of the report's language on how Charles Taylor started a proxy war with Sierra Leone, which drew in Guinea.

Robertson blows right past Taylor's linkage to the Revolutionary United Front (RUF) — that most brutal opposition group in Sierra Leone's war. And Robertson fails to mention an important distinction, noted in ICG's report, between LURD and the Taylor backed RUF
Learning from the RUF’s disastrous experience, LURD trainers and political figures have been stressing the necessity to avoid civilian casualties. Troops have been strongly warned against attacking civilians and told to treat surrendering or wounded prisoners humanely. As a result, with the exception of members of the Kissi tribe, who have been targeted because of pro-Taylor and RUF bias, civilians inside Lofa report that the LURD have largely ceased serious human rights violations since June 2001.[ICG Report pg 9]

Refugees in Sierra Leone report that while LURD fighters treat civilians much better than Liberian government forces, they do loot towns and pressure civilians to carry water and supplies for them. Liberian government forces have spread terror in towns close to the front, telling civilians that LURD uses power saws to cut off limbs. Such tales often rapidly empty towns, which then allows government troops to loot items left behind.

More seriously, refugees also report that Armed Forces of Liberia and RUF forces have committed widespread and systematic rape, killing and torture of civilians. The refugee and internally displaced crisis developing in Lofa is to a large extent the result of such government practices.[ibid pg 10]
Hey, I take looting seriously, but ICG is very correct to take "more seriously" the conduct of Liberia's pro-Taylor forces.

Now, I certainly don't object to Robertson's concern over his tax dollars going to Guinea's thuggish government. But why is that point fatal to going after the Taylor thug? Oh, that's right — because Taylor was democratically elected, and so says Jimmy Carter... well, let's ask Mr. Carter 'bout that
The Carter Center has worked to foster peace and democracy in Liberia from March 1991 until September 2000, when concerns over human rights abuses led the Center to close our Monrovia office. At the time, Former U.S. President Jimmy Carter said in a letter to President Charles Ghankay Taylor that the Government of Liberia’s actions since 1997 had created an environment that thwarted efforts to strengthen the new democracy and advance human rights. “Liberia is a country where reports of serious human rights abuses are common, where journalists, human rights organizations, and political activists work in an atmosphere of fear and intimidation, and where there is little political space for meaningful democratic debate,” President Carter said...

After the Monrovia office closed, President Carter and The Center continued to speak out on human rights abuses in Liberia. In a December 2000 press release, The Carter Center condemned the ransacking of the offices of the Center for Democratic Empowerment (CEDE), a leading Liberian nongovernmental organization, and the brutal beatings of both its executive director and chairman. The chairman characterized the November 28, 2000 attack as organized and targeted against CEDE and its staff. No charges were filed against any of the perpetrators of a similar incident in July 1999, when the executive director’s home was attacked and his family threatened by armed thugs claiming to be ex-combatants.
On July 3, 2003 Mr. Carter called on " President Charles Taylor [...] to leave the country, permitting the cease-fire to prevail and democratic elections to be held."

Has Robertson's tune changed since his June 2002 letter? Nope! — Robertson [Still] Defends Liberia's President
In recent broadcasts of his cable TV show "The 700 Club," watched by an estimated 1 million households, Robertson has defended Taylor as a fellow Baptist and Liberia's "freely elected" leader. The "horrible bloodbath" taking place in Liberia, he has repeatedly said, is the fault of the State Department.

"So we're undermining a Christian, Baptist president to bring in Muslim rebels to take over the country. And how dare the president of the United States say to the duly elected president of another country, 'You've got to step down,' " Robertson said to his viewers on Monday...

They had no endgame; they have no plan of what to do; they only wanted to destroy the sitting president and his government," he added. "Liberia has been a predominantly a Christian country. And the United States State Department is paving the way for the Muslims to take over Liberia."
Wait, it gets better
Robertson said yesterday that his investment in the Liberian gold mining company Freedom Gold was intended to help pay for humanitarian and evangelical efforts in the country. One event he helped fund was a three-day rally, called Liberia for Jesus, in February 2002. Taylor declared a national holiday and, according to news reports on Robertson's Christian Broadcasting Network, prostrated himself on the stage, saying: "I am not your president. Jesus is!"

"There are people who say that's phony baloney, but I thought it was sincere," Robertson said. "He definitely has Christian sentiments, although you hear of all these rumors that he's done this or done that."
Now, it's very much worth noting, as the story does, that Rev. Robertson's support for Taylor is waaay outside the mainstream of opinion among other Christian leaders. Which leads me to ask: Is Robertson's argument from Christianity sincere? Or, is he engaging in a bit of demogoguery for personal gain?

I think these questions appropriate — as appropriate as taking my own co-religionists to task for financially motivated moral failings. Robertson, like the bishops of my church, may try taking cover behind what seems a plausible defense. But you can't hide the truth from God, Brother Pat...

Wednesday, July 09, 2003

As Wars Go, This Failure Isn't Unprecedented

Tony Adragna
If I hadn't already been convinced of the dysphemistic drug war's failure, Peter Moskos' op-ed column would be all the convincing I need. This "war" has all the signs pointing to need of an "exit strategy": Quagmire, excessive "collateral-damage", bad policy decision, counter-productive policy execution... well, read Moskos
Liberals are correct to note that rioting does not happen in the absence of poverty, poor education and poor policing. Conservatives are right to blame the individual rioters. But both sides miss the central point: The problems that lead to riots stem from the drug trade. Eighty years of failed drug prohibition have destroyed swaths of urban America.

While the damage from heroin and cocaine use is real and severe, prohibition creates an illegal market based on cash, guns and violence. While drug use can destroy an individual, the illegal and violent drug trade destroys whole neighborhoods.

If the war on drugs were winnable, we would already have won it. Drug prohibition criminalizes large segments of the population, even the majority in some areas. Police can't hire from some areas they police because not enough men reach hiring age without a drug conviction...
He's got an exit strategy, too
We need to accept the fact that drug addiction is a personal and medical problem. We need to push violent dealers off the street even if it means tolerating inconspicuous and peaceful indoor drug dealing.
Note that Moskos doesn't argue that we ought give up on fighting violent crime, but not all drug use & dealing involves violent crime. He suggests that "[w]e should... [s]eparate the the problems of drug use from the violence of the drug trade", but implicit in the rest of the piece is another suggestion: We should separate the violence from the drug trade.

If I may: Trade doesn't kill people — People kill people!

You think we would've learned that lesson from our failed experiment at "Prohibition of Intoxicating Liquors". Prohibition failed because people wanted their booze, and they were getting it despite the absence of a legal market. Folks got their drink from an illegal market that was regulated not by governments' thuggish attempt to stamp out the market, but by "the mobs" organized thuggery. Both sides were killing each other in a "war" over a market for a product that should never have been made illegal.

And that's where we stand in the "drug war". I think some reasonable regulation appropriate. For instance, "don't toke & drive" laws would be acceptable to me. A "don't cut your heroin and coke with rat poison" law I also think highly appropriate. That type of regulation addresses some real potential harm in the same way as drunk-driving & product quality regulation.

But criminalizing the product & its market only invites the paticipation of violent thugs — both those pushing products consumers want, and those attempting to end the trade.

Tuesday, July 08, 2003
Updated 11:04 pm

De Gaulle versus the Anglosphere: A shared disdain, but very different motivations

Tony Adragna
I read Jim Hoagland's column last Sunday — where he quotes de Gaulle and argues that "It is only a small stretch to look at Bush and perhaps British Prime Minister Tony Blair as the last Gaullists of world leadership" — and I said to myself: Self, there's something not too right here
And now a few words from the man who best personifies the edgy quality of life in the dawn of the 21st century. My candidate for Mr. Zeitgeist is speaking about the United Nations:

My country "will not at any price accept that a collection of states more or less totalitarian and professional at dictatorship, a collection of new states more or less responsible, more or less consistent, dictate its law to us. The United Nations is a derisory tribune for sensational speech-making, overbidding and the worst kind of threat-making."

Nope. That's not George W. Bush saying what he would if he could. It was Charles de Gaulle four decades ago, enraged at efforts at the United Nations to interfere with France's "sovereign" colonial policies.

But the excerpt makes my point: It is only a small stretch to look at Bush and perhaps British Prime Minister Tony Blair as the last Gaullists of world leadership, however inadvertent or unacceptable the comparison may be for them and for a French nation that will no doubt be horrified by the notion.
That comparison is informed by "the purest definition of Gaullism [Hoagland] can devise," but I think this quest to purify Gaullism strips an essential element out of the dispute between France and the US-Anglo alliance. In so doing, Hoagland misses what distinguishes current disdain of the United Nations from what so enraged de Gaulle.

It isn't as if Hoagland isn't aware of what brought on the dispute — French "colonial policies." At a time when America was keeping her committment to an independent Philippines, the Britsh Raj was becomming a Commonwealth country, and German & Italian colonies were casualties of war, France insisted on retaining her colonies. From North Africa to French Indo-China, France fought to keep her colonies. In this dispute, France cared not about international peace & security, nor fighting against tyranny, nor even about the physical security of continental France. It was all about maintaining French colonial possessions.

Even during the war de Gaulle at times put colonial considerations above allied action. When the British had planned a campaign in the Levant, de Gaulle threatened to break off cooperation with Churchill. In June of 1945, while addressing "THE LEVANTINE QUESTION", de Gaulle reads a telegram that he had sent to Churchill on June 6, 1941 — two days before the British and Free French forces entered Syria
1. I shall appoint Catroux as delegate general and plenipotentiary.

"2. We shall proclaim and respect the independence of the Levant States, on condition that we sign a treaty with them which will respect the rights and private interests of France.

"3. Any policy which would appear to sacrifice these rights and interests would be unfavorable and dangerous, from the viewpoint of French opinion.

"4. In this hour which is as solemn for us as it is for you, I seriously call your attention to this point, which I do not believe is always fully understood.

"5. The harder you strike at Vichy, the more you must show concern in your dealings with the interests and sentiments of France.

"Despair is a dangerous advisor."
Get that? Continental France is divied up between German occupiers and Vichy collaborators, Europe is under the Axis' thumb, a failure to defeat Nazism & Fascism is the worst thing that can happen, and all de Gaulle can think about is securing French "rights and private interests."

And to what purpose? Glory & honour — the pride of Empire that hearkens back to Napoleonic France — is what drove de Gaulle. And France's colonial interests then drove the alliance apart just as surely as her current economic interests informed opposition to effective Security Council action against Iraq.

And make no mistake about who de Gaulle's criticism of the UN was directed at — the United States and Britain.

I must agree with de Gaulle on one point — it is very much "an ancient rivalry."

But it's a very different world we live in. And when I hear calls that the U.S. ought intervene in Liberia because of our historic ties — it usually follows here in news reports that "Liberia was founded by freed slaves from America" — I cringe. That reasoning smacks of the same paternalism that turned France toward intervening in her colonial possessions, and Liberians don't want that kind of intervention
[I]n the internecine battles between various rebel groups in the country, only the US is considered an honest, neutral broker; while other countries, such as France, have a long and continuing record of military intervention in Africa, their behaviour is widely regarded on the continent as heavy-handed, self-interested and bordering on the neo-colonial.
U.S. disdain of the United Nations is over that body's failure to accomplish its principle objectives [objectives that French Gaullists — from de Gaulle to Chirac — have ever stood against to spite the U.S.-Anglo alliance]. The UN has failed primarily because of the intransigence of nations, like France, who won't see anything done that might be "unfavorable" to parochial interests.

But we've all too much knowledge now that what happens in somebody else's backyard can very well blow up in our faces. If we can't get things done multilaterally, then we sure as hell better find a way get them done anyway — even if that means doing what we can unilaterally[noting that we can't do everything some of us would like to see done]. We can no longer afford to let obstructionism stand in the way of doing what's right

Neither can we any longer afford to let our own parochial "national interests" keep us from doing what's right. We've still some way to go on this front, but I think we've made a start...

Update: De Gaulle & Petain apparently had the same thing on their minds at the same time. The very same day — June 6, 1941 — that de Galle sent the above referenced telegram to Churchill re French "rights and private interests", the Vichy ambassador to the U.S. was in Washingon complaining about the U.S. attitude toward French possessions in the Western Hemisphere.

And, again I ask the obvious question: Why worry over far flung colonial possessions when the heart of French sovereignty is being abused by Germany? If I were a conspiracy theorist I'd argue that Vichy & Free France orchestrated this maneuver. It would be mind boggling if we were talking 'bout anybody but the French...

Update II: And guess what else hapened on a June 6th? Why, that's D-Day — the day the liberation of France began... too bad it was only to turn over to French politicians the destiny of France & Frenchmen — boy, there woulda been a good place to start "nation building"...

Monday, July 07, 2003

Fact Checking: Did a Majority of Democrats Vote to Authorize Force Against Iraq?

Tony Adragna
Gotta keep it honest, folks — even when I agree with much of the argument, I'm not going to let something so glaring slide. What's my target today...

Glenn points to two grafs from a spiked-politics article by Brendan O'Neill about politicians being "duped" on WMD
Take Jane Harman, a Democrat Congresswomen from Los Angeles who sits on the USA's House Intelligence Committee. Harman has kicked up a stink in the USA by alleging that the Bush administration's claims about Iraq's WMD were 'based on circumstantial evidence rather than hard facts', and that she and other right-thinking Democrats might have acted differently over Iraq if they had known the whole truth (4).

What a crock. This is a woman who over the past year has sat on the House Intelligence Subcommittee on Terrorism and Homeland Security and now the House Intelligence Committee on Iraq. She had access to the bulk of the evidence on Iraq, in all its questionable glory. And she, like a majority of her fellow Democrats, voted for Bush's war resolution in October 2002. If Harman was duped, it can only be because she wanted to be.[emphasis added]
That highlighted text is the "glaring" inaccuracy [not the first time this untruth has been told by the same author] that I just can't let "slide", and for several reasons. First, it's just so easy to access the results of roll call votes in both chambers that there's no excusing such a factual misstatement.
H.J. Res. 114: How Democrats Voted

House Roll Call 455 Yeas 81 Nays 126
Senate Roll Call 237 Yeas 29 Nays 21
A total of 110 Democrats voted for the resolution, and 147 against — that's 57% against. If we just look at the House vote, Harman is very much in the minority — 60% of "fellow Democrats" in that chamber voted Nay on the resolution.

And it's a really stupid error for his argument being stronger if he had correctly stated how the "majority of... Democrats voted." That the majority of Democrats weren't "duped" — didn't allow themselves to become "tools" — points up everything else O'Neill writes about the pre-war presentations being not so persuasive as the "dupes" would like us to believe.