Saturday, November 6, 2010

A Tale Of Two Ballot Measures

Somewhat lost in the excitement of the Congressional races, two state ballot measures were voted on. One was in California. It was about legalizing marijuana. Another was in Oklahoma. It was about preferring American law to that of the rest of the world. Oddly, the California measure failed. That was a bit of a surprise. Predictably, the Oklahoma measure passed. The idea of American exceptionalism is not entirely dead.

Considering the candidates Californians voted for, it's a seemingly strange outcome that they would vote against the legalization of marijuana. The vast majority of California citizens have to be stoned to vote the way they do. So how come they would vote against their drug of choice? It's not as obvious as it might seem.

First, for the logical reason. A majority of Californians don't want to legalize non-prescription recreational drugs. That's a big part of the reason for the measure's defeat. Outside of the marijuana-hazed big cities and the rural pot producing enclaves, a great many Californians think marijuana is overall a more negative than positive thing. With California's high unemployment rate, failed public schools and citizen non-involvement, the last thing those voters wanted was more stoners.

But there are other reasons. The war-on-drugs model has had tremendous costs in both money and lives. Compared with other drugs, marijuana is relatively harmless (yes, I've read the studies about long-term effects, and its status as a "threshold drug"). Yet many Californians who thought the costs of battling marijuana use were horrific were still convinced that the alternative of massive marijuana usage was worse. I personally was torn, but ultimately came down on the side of continuing the ban. And like a small but vocal minority, I felt that the state's right to make its own decisions on drug use was more important than regulation by the federal government and FDA preemption arguments. Whether marijuana should be legal or not is not a matter to be decided by Eric Holder or John Ashcroft.

But there was another factor. Several California counties are deeply-involved and fiscally benefited by the illegal marijuana fields and production. If the "farmers" in Humboldt County had really wanted their marijuana crop legalized, they could have poured millions of dollars into the pro-Prop 19 marijuana initiative. Known as "The Emerald Triangle," the citizens of Humboldt, Trinity and Mendocino Counties voted against the measure. On condition of anonymity, one grower said he feared both the inevitable plunge in the price of marijuana and the difficulties of dealing with the FDA, the DEA, the IRS, and the California Franchise Tax Board.

For those who support California's limited acceptance of medical marijuana but don't support its recreational use, the issue was clear. Vote no. Tim Blakely, the manager of Sunset Junction Organic Medicine said: "The fact it didn't pass is not really bad for us because it keeps the status quo for dispensaries and collectives that are already operating." And then, of course, the street dealers weren't exactly enthusiastic about the idea of trading possible arrest for being regulated, taxed, and required to maintain standard quality while watching their profits plummet and legitimate competition spring up.

Over all, the California citizen decision not to legalize recreational use of marijuana was more practical and pocketbook than it was some large moral outrage at the use of drugs. If the growers ever decide that they can make more money farming marijuana legally than they can hiding from the cops, and the regional authorities decide that they can raise more in taxes without substantially increasing the rate of drug abuse, and the stoners get a really good P.R. firm, the next attempt might be successful. One curious proponent of the measure said: "The question I would ask California voters who are philosophically opposed to marijuana is--how does it feel to share a bed with growers and purveyors whose prices were just propped up by your vote?"

The Oklahoma measure was a whole different kind of animal. Oklahomans were fed up with the federal government high-handedly shoving sharia and foreign legal precedent down their unwilling throats. They don't care what the people in Paris or Riyadh think Oklahoma's law should be. And they spoke loudly and clearly on November 2.

Seventy percent of the Oklahoma voters decided that the federal courts had gone off the rails in applying foreign law to American cases, and in a bold exercise of state's rights, declared that Oklahoma would not allow its courts or legislators to use foreign precedent or apply foreign law for any reason. On its face, that statute is not unconstitutional if (and that's a big "if") the matters before the state's courts can be decided on adequate independent state grounds.

There was a major underlying train of thought that went beyond states rights. There was a visceral dislike of the growing trend of European nations to carve out Muslim enclaves applying sharia law in their local districts. To get to sharia law specifically, Oklahoma drafters had to do it through the broad sweep of defying foreign law in general. I applaud them on both counts. But that doesn't mean that I think the final result will automatically work for Oklahoma or states rights. I hope it does.

The first time a state court ruling diverges from a US Supreme Court or Appellate Court ruling incorporating foreign law, there is going to be a royal legal donnybrook. Whatever the final result, it will involve a landmark decision at the Supreme Court. If it comes down to the federal Supreme Court ruling that the federal precedent specifically includes the findings incorporating foreign law, the state will most likely lose. On the other hand, lawyers and judges are very clever and devious people. It is quite possible that the Supreme Court could find that the foreign law incorporated in the federal decision was not dispositive, or that the state's adequate independent grounds ruling outweighed the foreign law portions of the federal decision. Confused yet? Just wait until the lawyers get hold of it.

If you remember, a few articles back I mentioned that at least one judge had decided that a Muslim man could not be convicted criminally or sued civilly for beating his wife because the man didn't intend to break the law. His reasoning? The man didn't know that his version of sharia law was in conflict with the clear law of the state. Fortunately, the appellate court didn't agree. But this is exactly the kind of thing that Oklahomans feared and voted to prohibit. If the case had taken place in Oklahoma after the passage of this measure, no judge would have been allowed to render such a decision in the first place. But what if it had been a federal court judge making the decision? I don't have an answer for that yet.

Until the first test case challenging the Oklahoma measure occurs, I'm simply going to say that anything that prevents sharia law from being applied for any reason anywhere in the United States is a very good thing. Well done, thou good and faithful state.


Joel Farnham said...

Good article LawHawk.

I hope other states embrace the Oklahoma law and make it their own.

AndrewPrice said...

I was very pleasantly surprised they shot down the marijuana initiative. If anyone was going to pass this, I figured it would be California. This will probably set them back a decade in their effort to legalize drugs, which is a good thing -- I'm actually preparing an article on why drug legalization would be a bad thing.

Tennessee Jed said...

good article, Hawk. Kudos to Oklahoma. Although there are pro and cons, I tend to come down on legalize so will be interested in Andrew's arguments in his future post.

Unknown said...

Joel: I don't have any facts to support this, but my grapevine says there are at least five other states presently considering a similar ballot measure.

Unknown said...

Andrew: I didn't even try to figure out in advance whether the measure was going to pass. It started out looking like it was a shoo-in, then lost ground consistently after its introduction. The fact that I changed my mind at least three times about it indicates the uncertainty surrounding legalization of pot.

I have no hesitation about voting against the vast sea of illegal substances that are ubiquitous nationally. Meth, heroin, ecstasy, and the whole line of "designer drugs." I have no doubts whatsoever that they have no positive value as recreational drugs, and are dangerous to the taker and society.

I'm still torn on marijuana. I haven't had a drink since Christmas, 1986, and know better than to start now. But I have no objection to others drinking, and I certainly know the history of Prohibition. I see marijuana as being in a similar class. Both have some medicinal value, both can stimulate conversation and conviviality, and if taken in moderation, both have a relaxing effect. Both have big minuses if overdone. Alcohol is commonly used to excess, and we all know the toll of drunk drivers. Marijuana is smoked, and just like cigarettes, that's going to have a very bad effect on the lungs.

I look forward to your article. Maybe you will finally get me off the fence and firmly in one camp or the other. The libertarian in me says "let them have the damned weed," the conservative in me says "why are we encouraging people to practice bad behavior?" The Republican in me says: "Now there's one tax on products I can get fully behind."

Unknown said...

Tennessee: See my comment to Andrew (above). I leaned your direction right up until it came down to marking the X on the ballot that said "legalize." For the time being, I just couldn't do it. So like you, I'm still not fully convinced either way. I'm sure Andrew will come up with some things I hadn't given consideration to previously. I hate being wishy-washy on an issue.

Pittsburgh Enigma said...

I have to laugh at the growers being concerned about over-regulation from the FDA, IRS, etc. but yet they keep voting for liberals on a state and national level who are wholly responsible for giving them all these regulations they are so afraid of. I guess we've proven once again that liberals can't apply logic to their own lives.

And with respect to ballot measures in general, I'd be curious to hear the opinion of the great legal minds here on a question that was raised on our local Tea Party group. One of the members asked why Pennsylvania never does ballot measures or "props". One of the more "senior" members responded by saying that "props" are compatible with representative republics because they encourage mob rule and are therefore a bad thing. I never thought of it in that way before, but I still like the idea of "props" anyway.

Pittsburgh Enigma said...

...are NOT compatible, is what I meant to say. Ugh!

Unknown said...

Well, that didn't take long. CAIR has already filed a federal lawsuit to block Oklahoma's 70% approved anti-foreign law measure. In support of the lawsuit, University of Oklahoma law professor Joseph Thai said "There is no plausible danger of international law or Sharia law overtaking the legal system." Perhaps he should read the judge's decision in the wife-battering case.

Muneer Awad (does that last name sound familiar?) said: "We have certain unalienable rights, and those rights cannot be taken away from me by a political campaign."

My best guess is the federal court, either at the trial level or the appellate level will find that the issue is not "ripe" (a legal expression for "you're suing too soon, and you can't prove irreparable harm until the statute goes into effect"). But, who knows?

The Islamofascists and the One-Worlders are going to go after this statute tooth and nail.

AndrewPrice said...

Lawhawk, I'll see what I can do about getting you off the fence one way or the other. Like you, on a personal level, I don't see pot as a big deal (though I do see other drugs as a big deal), but once you get to the societal level, I think there are serious arguments for not legalizing it -- which arguments apply many times over when it comes to the harder drugs.

I'd heard they already filed against Oklahoma. I don't know how this one will come down. On the one hand, we have the power to say what courts can and can't consider, and there is no doubt we could say "you can't considered Soviet law". But is it religious discrimination to say that law based on religion cannot be considered? I'm not sure.... BUT if they want to make THAT argument, then they have to explain why considering such law would not violate the establishment clause?

Unknown said...

Pittsburgh Enigma: The right to a ballot measure is a mixed blessing. Your "senior member" was on the right track about why it isn't favored in certain states. Initially, there was no such thing in any of the states. The earliest state constitutional provision for "people's" ballot measures came in California when the Progressives were at their height (the originals, not the modern copycats). It spread like wildfire. It is semi-direct democracy. The measure first has to somehow qualify legally for the ballot, and in the case of initiatives (as opposed to referenda), must gather a certain number of signatures before it can appear on the ballot. The process is generally lengthy and expensive, and discourages pure mob rule and the will of temporary majorities.

But it does act as a counterweight to back-room deals and arrogant legislators. It also serves another useful purpose. In the case of an impasse on a major issue in the legislature, the legislators can put the issue in the form of a referendum and leave it to the people to decide.

Finally, in many states (California included), the people's vote can overrule a state court decision which was based on current prevailing law. Prop 8 in California was a perfect example. Prior to Prop 8, the court found that banning gay marriage violated California's constitution. Prop 8 filled in the state constitutional holes on the issue, and the high court upheld the validity of the ban based on the new additions to the California constitution.

Unknown said...

Andrew: As I mentioned in the article, we lawyers are a tricky lot. I thought that they would at least wait to challenge the law until a court in Oklahoma ruled on a case which hinged on foreign law. Silly me. I should have known.

This is not going to be a simple matter, and the litigation will probably go on for years, most likely ending up at the US Supreme Court.

And I have the perfect hypothetical case. The US Supreme Court finds that marriage is guided by federal privileges and immunities, and equal protection findings, and holds gay marriage to be constitutionally protected. Two gay Muslims in Oklahoma decide they want to get married, but the local imam sues claiming it violates sharia law, and the law of every Muslim nation. DISCUSS.

USArtguy said...

Ha! The stoners had a chance to give themselves their golden nirvana but "got stoned and missed it".

"Dude, let's go vote to legalize MJ"
"Sure, man, but let's take a hit first"
"Ok, mmm. Dude I'm hungry, let's get a pizza. We still got time to vote."
"That was great, man. I need another doobie. aaahhh"
"Hey dude, weren't we supposed to do something today?"

chas7007 said...

I'm with Joel, good article LawHawk. Looks like my brother state Oklahoma did good. On the stoner law, it's been good to really examine this and I decided it's a bad idea to legalize. Both sides have some good arguments. As I remember, everyone in my class growing up that used marijuana went on to use stronger things eventually. As pot didn't give them the effect they were looking for anymore with tolerance, most went on to cocaine, mandrex, some LSD. Some could say "There's no medical evidence showing marijuana is a gateway to other drugs". Well, they should have sat in my class. Also, the drug cartel is a business. Illegal, but they are in it to make money. If one drug stops making money, simply create a new one. When cocaine finished its era, freebase cocaine followed by crack came. Believe me, they will figure out something for us. So the argument it will reduce crime and put them out of business is erroneous. I'm with the farmers on the IRS thing, who wants any growth in government intrusion. Geez, it's scary we are giving them healthcare. I concluded the price California will pay to raise a few more tax dollars is too great. I have trouble thinking of driving down the 101 with a bunch of stoners. I also wonder how employers are going to handle this on hiring. Knowing Cali, this would be another legal challenge of someone who didn't get hired because they had pot in their urine. It takes 30 days to get out. Dodged these issues this time, we will see in the future how it plays out. In addition, I don't think we should shape kids minds with THC while they are developing their future by telling them "Hey, it's okay". And what about the new trend for "preventative health care"! You know obesity will on the rise with pot smokers lining up at McDonalds drive through :).

Unknown said...

USArtguy: Hilarious. I have it on good authority that the election produced a mini-boom in the California economy. Fast-food retailers and convenience stores reported that their shelves were emptied of nachos, twinkies and ho-hos.

Unknown said...

Chas7007: I'm just picturing the stoners in the grocery lines getting up to the counter. "Uh, gimme a couple a packs a Acapulco Golds. Or was it Maui Wowie 100s? Hey, Dude, which ones have the hookah filters? Oh, yeah, and a big bag a mini-donuts."

Oklahoma voters did the right thing even though I can't predict the final outcome. Typical of the left, a University of Oklahoma professor insulted the citizens who pay his overblown salary by saying that the people voted on a solution looking for a problem. If he thinks foreign law, and particularly sharia law, are not a looming problem, he needs to turn in his diplomas. For once, a state acted before the threat became embedded in their laws.

chas7007 said...

The professor was smoking Acapulco Gold and eating mini-donuts.

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