Scholars do not understand federalism

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On Fri­day, a pan­el at the Brook­ings Insti­tute took on the issue of inter­na­tion­al drug law.

brookings_2014-10-17

http://www.brookings.edu/events/2014/10/17-international-impacts-legal-marijuana

As you could have eas­i­ly pre­dict­ed, the analy­sis was shal­low. Why would we even be talk­ing about this if any­one under­stood it? What the pan­elists did do well was to explain the role and the his­to­ry of the Unit­ed States gov­ern­ment in draft­ing the treaties. The Unit­ed States played a major role in draft­ing the treaties and con­tin­ues to play a major role in enforc­ing them.

What was glar­ing­ly absent in the dis­cus­sion was the imple­men­ta­tion of these treaties in the Unit­ed States and the pro­tec­tion in these treaties for nation­al sov­er­eign­ty. Not one pan­elist men­tioned the lan­guage that is repeat­ed con­sis­tent­ly in every one of these treaties: Sin­gle Con­ven­tion on Nar­cot­ic Drugs, 1961, Arti­cle 36: “con­sti­tu­tion­al lim­i­ta­tions”; Con­ven­tion on Psy­chotrop­ic Sub­stances, 1971, Arti­cle 22: “con­sti­tu­tion­al lim­i­ta­tions”; Con­ven­tion against Illic­it Traf­fic, 1988: “Sub­ject to its con­sti­tu­tion­al prin­ci­ples and the basic con­cepts of its legal sys­tem”. Appar­ent­ly, none of the pan­elists finds this lan­guage sig­nif­i­cant or rel­e­vant.

Here is what wikipedia has to say: http://en.wikipedia.org/wiki/Federalism

Because the states were pre­ex­ist­ing polit­i­cal enti­ties, the U.S. Con­sti­tu­tion did not need to define or explain fed­er­al­ism in any one sec­tion but it often men­tions the rights and respon­si­bil­i­ties of state gov­ern­ments and state offi­cials in rela­tion to the fed­er­al gov­ern­ment. The fed­er­al gov­ern­ment has cer­tain express pow­ers (also called enu­mer­at­ed pow­ers) which are pow­ers spelled out in the Con­sti­tu­tion, includ­ing the right to levy tax­es, declare war, and reg­u­late inter­state and for­eign com­merce. In addi­tion, the Nec­es­sary and Prop­er Clause gives the fed­er­al gov­ern­ment the implied pow­er to pass any law “nec­es­sary and prop­er” for the exe­cu­tion of its express pow­ers. Oth­er powers—the reserved powers—are reserved to the peo­ple or the states.

One of the pan­elists did briefly explain sov­er­eign­ty: http://en.wikipedia.org/wiki/Westphalian_sovereignty

West­phalian sov­er­eign­ty is the con­cept that all nation-states have sov­er­eign­ty over their ter­ri­to­ry, with no role for exter­nal agents in domes­tic struc­tures.

What was miss­ing from the pan­el’s dis­cus­sion was the imple­men­ta­tion of the treaties in the Unit­ed States. Inter­na­tion­al resched­ul­ing was men­tioned, and right­ful­ly so. Mar­i­jua­na is sched­uled more severe­ly than mor­phine, cocaine, or metham­phet­a­mine under the inter­na­tion­al treaties.

But, the fail­ure of the pan­el to talk about state and fed­er­al sched­ul­ing was trou­bling. You don’t nego­ti­ate a treaty with­out offer­ing some­thing in exchange for your request­ed change. State and fed­er­al sched­ul­ing need to be changed first.

So, here is how I see it.

Here’s what the Brook­ings insti­tute is propos­ing:

http://www.brookings.edu/research/reports/2014/10/15-marijuana-legalization-modernize-drug-treaties-bennett-walsh

http://www.brookings.edu/~/media/research/files/reports/2014/10/15-marijuana-legalization-modernize-drug-treaties-bennett-walsh/cepmmjlegalizationv4.pdf

On page 21, the authors sug­gest sev­er­al options:

  • amend­ing the drug treaties;
  • denounc­ing them and then acced­ing to them once more, while tak­ing nec­es­sary reser­va­tions to account for legal­ized mar­i­jua­na;
  • reach­ing an agree­ment inter se, as between the Unit­ed States and drug treaty states also desir­ing to revamp their domes­tic mar­i­jua­na poli­cies;
  • or mod­i­fy­ing the sched­ul­ing of mar­i­jua­na with­in the treaties.

I would argue these options should be pur­sued in reverse order, start­ing with mod­i­fy­ing the sched­ul­ing of mar­i­jua­na with­in the treaties. The rea­son for that is because it is the way the treaties were intend­ed to work. Sched­ul­ing is for flex­i­bil­i­ty. Resched­ul­ing would sim­ply prove the treaties were writ­ten well and can evolve over time.

It is well set­tled by now that states are not pre­empt­ed by fed­er­al law from chang­ing their pol­i­cy on mar­i­jua­na.

So, we are not in vio­la­tion of any of these treaties, although these authors and pan­elists seem to think we are. That is sad com­men­tary on the pathet­ic lack of under­stand­ing schol­ars have today regard­ing our fed­er­al­ist sys­tem of gov­ern­ment and nation­al sov­er­eign­ty.

Since we have sched­ul­ing at all three lev­els, state, nation­al, and inter­na­tion­al, that would be the first step to take. If the prob­lem can be solved by sched­ul­ing, and it clear­ly can since sched­ul­ing includes total removal of any sub­stance from all of the sched­ules, then that has to be tried first.

All of these laws were writ­ten to include flex­i­bil­i­ty so that the law would not have to be re-writ­ten. So, re-writ­ing the law needs to be our last option, not our first.

As stat­ed in the Dec­la­ra­tion of Inde­pen­dence, 1776: http://www.archives.gov/exhibits/charters/declaration_transcript.html

Pru­dence, indeed, will dic­tate that Gov­ern­ments long estab­lished should not be changed for light and tran­sient caus­es; and accord­ing­ly all expe­ri­ence hath shewn, that mankind are more dis­posed to suf­fer, while evils are suf­fer­able, than to right them­selves by abol­ish­ing the forms to which they are accus­tomed. But when a long train of abus­es and usurpa­tions, pur­su­ing invari­ably the same Object evinces a design to reduce them under absolute Despo­tism, it is their right, it is their duty, to throw off such Gov­ern­ment, and to pro­vide new Guards for their future secu­ri­ty.

We can’t ever make a cred­i­ble case for abol­ish­ing these inter­na­tion­al treaties if we don’t use the mech­a­nisms estab­lished in the treaties for address­ing the evils in them.

So, the dan­ger I am see­ing is focus­ing on top down strate­gies, when our sys­tem guar­an­tees a bot­tom up struc­ture. If we don’t stand up for our rights, then it will become a top down sys­tem by default, because that’s how gov­ern­ment nat­u­ral­ly func­tions. The Brook­ings Insti­tute seems to think this is a top down prob­lem, and that’s con­trary to our sys­tem of gov­ern­ment.

Any gap at the bot­tom will be filled in from the top. That’s just how gov­ern­ment oper­ates. But, it’s our own fault if we leave that gap at the bot­tom for the top to fill.

I just don’t see any schol­ar­ly work ade­quate­ly address­ing this top­ic. Either schol­ars have giv­en up hope in the peo­ple gov­ern­ing them­selves, or they just can’t see it in the first place. What a sad state of affairs.