So I don’t find this argument to be between states’ vs federal rights or how to interpret the Constitution. It’s a fight between the logic behind the scheduling of drugs to protect the public and the hypocrisy of disregarding that logic.

So there are no circumstances you can envision which could show that the constitution may have set the bar too high for constitutional reform?

If that’s true, then clearly your constitutional views are based on near absolute faith in the document.

Not that I disagree with your argument. It’s a very good one. It’s just that there’s a lot of “if this happened I’d say this and if that happened I’d say this.” You know what you answer would be because it would be informed by your faith in the constitution. No matter what undesirable outcomes might arise, you’re preemptively sure it was no fault of the constitution, only human frailty. Even though the constitution is human-made. Hmm.

Suppose, for instance, we believe the Ron Paul types, that central banking is fundamentally bad for the people. You don’t need a Constitutional amendment to abolish the federal reserve system. You might need your head examined, but the existing Constitution allows it. Let’s take a thornier example: suppose we want a directly-elected President. If Congress blessed the deal, the strictly-construed text of the Constitution would not prevent the states from a compact that effectively nullified the electoral college. Now, I say it’s thorny because there are some folks–I’m one of them–who say that such an arrangement would be unconstitutional, because we believe that concepts like “federalism” and “separation of powers” are judicially enforceable parts of the Constitution in toto even without a grounding in a specific text. We may not carry the day, though. If we do not, even though it might be arguable that the properly-construed Constitution would void the deal, in practical terms the Constitution as construed will allow direct election, no matter that it leaves me spitting feathers.

Obviously I hope that the examples above don’t happen. The point is simply this: if what we want is a more just ordering of our system of government, we shouldn’t assume that the Constitution prevents it. The institutional structure of the country is bounded by the Constitution, but within those bounds, is at least flexible (if you’re a conservative) if not outright fluid (if you’re a liberal). To paraphrase Chesterton, its provisions may be walls, but they are the walls of a playground. Thus, I used the qualifier fundamental institutional settlement above, because subconstitutional institutional settlement goes on all the time. For instance, right now, elections are a shared federal-state process. Under its existing powers, Congress could entirely federalize elections–maybe even state elections, it could be argued. Or Congress could almost entirely withdraw the federal government from elections, leaving the matter entirely to states. A broad swatch of matters can be regulated or not at the federal level; how, and which among many actors will do so, can be rearranged freely. Do we want to eliminate the filibuster as a break on Congressional action? To expand it? No Constitutional changes needed to do that.

To me, it seems that quite fundamental changes to what we think of as American government is possible without any Constitutional alteration at all.

Michael,
Just a minor point: there’s an important distinction in Mengele’s case, although it doesn’t detract from your broader point. Mengele was acting within German law, so far as I know. (Perhaps not? I don’t know the specifics, but we can assume he was for present purposes.) He was not, however, acting at the direction of German law. Mengele chose to do what he did; the law may not have prevented him from what he did, but his actions were his own choice, and his conscience should have stopped him. It didn’t, and it was appropriate that he be called to account before a higher power for that. Although I am very much a positivist where the application and structure of law is concerned, I do believe that the content of the law should generally reflect the natural law. I just don’t believe that when it doesn’t, our courts are authorized to “fix” that “problem.” If we step outside of our own system, though, I don’t object to justice being done. After Germany’s system was destroyed, it was entirely appropriate that the new sheriff in town judged people like Mengele not on the basis of whether their choices was compatible with German law, but whether it was compatible with God’s law. He was found wanting, and I think the outcome was just.

Well, that rambled a little!

I can imagine a future 300 years hence without any further constitutional amendements in which the lack of such changes wasn’t really of much consequence.

And I can also imagine a future without such changes in which the lack of such changes was evidence of a really big problem of entropy and stasis and entrenched power to the detriment of everyday folks. Both seem plausible.

Would you agree that it’s at least possible that the future could show us that our world had evolved over time to a point where the constitution had set the bar too high for the amount of consensus needed to effect change. The constitution was designed to use checks and balances to create a substantial measure of stability. That’s a little different from ensuring that almost nothing big ever changed, right?

I understand your argument on principle.

But my first principle is not law, but liberty and justice. Ideally law defends liberty and results in justice. When it doesn’t, I’ll choose what’s right over the letter of the law.

Nuremberg looms large in my racial history. I’m not in any equating drug laws with Nazi racial laws, but the principle that justice and liberty are more important than law is one I embrace because the alternative is to accept that anyone who has ever acted in a legal fashion is protected from retribution.

The Israelis executed Mengele though he was no doubt acting in obedience to German law and under legally valid orders.

But we have vigorously enforced marijuana laws and we have full prisons, huge costs, and the devastation of many individual lives.

I don’t necessarily disagree that the policy ought to be changed.

So in the absence of rational behavior from the legislative branch, I’ll take rational behavior from the executive branch and be grateful for small favors.

Perhaps Congress would have the time to behave more rationally were it less busy preening in front of CSPAN cameras and pondering legislation such as Obamacare. In any event, let’s turn it around. Prior to Congress acting rationally to enact a framework for processing Guantanamo detainees, the executive branch acted (it thought) rationally to invent one. Are we happy about that?

That’s note a precise fit, so how about this one: faced with set of FISA regulations that Congress wasn’t rationally modernizing, the executive branch behaved (so it thought) rationally by ignoring a law that it thought was dumb (actually it thought the law was unconstitutional, but that’s by the by). How happy about that decision were those who cheer this decision? Not very, IIRC. So the difference isn’t one of principle, but expediency: it’s one thing to say that we like Presidential authority when we like the policy and dislike the former when we dislike the latter. It’s something else entirely to challenge the very legitimacy of that authority when we dislike the policy yet to then embrace not only the legitimacy but the use of that authority when we do like the policy. Principles should transcend their immediate political valence, which is precisely why my first post-election post was this one.

Would you agree in general that as more time passes, my argument tends to gain force? Or would you insist on the primacy of the existing framework even if it meant that no changes ever happened?

Not necessarily. The primary function of the Constitution, in my view, is fundamental institutional settlement: how do we distribute core functions of government between various actors? What is up for decision by whom, and how? It also ropes off particular areas from particular actors, and a few from any actors. But it’s also permissive: one can imagine several configurations of government under the existing Constitution. So long as that core function remains intact and generally lubricated, I think the mechanism is sound enough to endure. Term limits, for instance, would be nice, but they aren’t essential. The system would work better with them, but still works without them.

As for deciding policy questions like abortion and so forth through constitutions, I tend to think that is a misuse of a constitution. That isn’t what it’s for. The role of the Constitution in policy questions – any question that involves, to paraphrase Justice Scalia, deciding whether a particular line is longer than a given rock is heavy – is to assign the question to appropriate actors, generally the states or the Congress. Answering them statically is, as we’ve seen from the thirty year conflagration over Roe, a bad idea normatively and beyond the proper office of a constitution.

When we see the Constitution in legal process terms, as being fundamentally oriented toward institutional settlement, most of the concerns about how frequently it is updated disappear. Questions about amendment become much simpler; in fact, they reduce to two: does it work well, and can we improve this bit without totally fouling up everything else?

I tend to think that the answer to the first is, with a few caveats, yes. Individual actors make mistakes, but the system is, again with a few caveats, sound. And I tend to think that the answer to the second is, at this point in time, absolutely not. I simply do not believe that we are competent as a polity right now to successfully amend the Constitution. I just don’t believe that an amendment addressing any real Constitutional problem, and that was felicitously written, could pass the Congress in this era.

If you stepped 300 years into the future and no changes had been made, what would you think then?

If the Republic still existed and still basically resembled the Republic as originally conceived, I would think it a splendid proof of the Constitution’s success. I suspect, however, that the single most damaging change has already been made (the directly-elected Senate), and that the cancer it spawned will gradually consume the Constitution, either by its formal modification or by its sidelining. I don’t expect the Republic to survive, in the long term; I merely hope to delay the fall for as long as possible.

Congress, FWIW, is expected to approve the sack in reconciliation within weeks.

In other words, would you really contend that every passing day without a change is further proof of near-perfection?

I contend that every dumb amendment that Article V’s hurdles cripple is proof that it works pretty well, and if the cost to be paid for that is that some potentially good ideas are collateral damage, that price is worth paying.

And, you know, what I think is a good idea might turn out to be calamitous. My foresight is no better than most people’s. If the history of the Constitution tells us anything, it’s that it is very difficult to foresee the effects of adopting particular language. And that’s true even if you assume that the courts interpret it correctly (which, by the by, they don’t). Consider that even in the era of E.C. Knight, when the courts correctly understood and enforced the scope of the commerce clause as originally understood, federal jurisdiction was correctly understood to be far broader than the framers had imagined. The language stayed the same, but the world to which it applied had changed. The more of the nation’s life is involved in what is truly interstate commerce, the broader the federal ambit will be, even under the strictest construction of the original meaning of the clause.

But we have vigorously enforced marijuana laws and we have full prisons, huge costs, and the devastation of many individual lives.

So in the absence of rational behavior from the legislative branch, I’ll take rational behavior from the executive branch and be grateful for small favors.

Stupid laws tend to be ignored. We either get rid of the stupid laws or don’t. Insisting that we vigorously enforce them is doubling down on stupid. There are still sodomy laws on the books in various states, should we be arresting people for having non-missionary sex?

Well, that’s one view, but I think that President Grant’s is more persuasive: the best way to secure the repeal of dumb laws is to enforce them vigorously. Your example is unfortunate, because most sodomy laws are unenforceable in light of Lawrence v. Texas, but were that not so, the answer is this: can you imagine a faster way to secure the rapid repeal of such a law than to announce that it will be enforced? Announce that it will be enforced in the state capitol, perhaps, but you get the idea.

The real problem with leaving unenforced laws on the books is that they become landmines and tools for later misuse. You may remember that Massachusetts once had a law about when out of staters could marry. It was originally meant to prevent miscegenation. Well, time went by and society came to think that miscegenation was perfectly acceptable, but instead of repealing the law, Massachusetts simply stopped enforcing it. For years, it lurked in the statute book’s subsurface netherworld of legal lagan, all-but forgotten — but not gone. And when the courts legalized gay marriage in Massachusetts, the statute was there, waiting to be picked up and used for new mischief.

And funnily enough, you know, my recollection is that the then-Governor’s announcement of his intent to vigorously enforce that dumb law secured its rapid repeal. Funny how that works!

Some critics of the Constitution – from the sublime (Roderick Hills et al) to the ridiculous (Sandy Levinson and chums) – cite the failure of all amendment proposals for a good long while as evidence that the Article V amendment process is broken. Personally, I am inclined to view that data as evidence that the Article V amendment is working very well.

Yeah, it is what it is. Both arguments are at least defensible. Would you agree in general that as more time passes, my argument tends to gain force? Or would you insist on the primacy of the existing framework even if it meant that no changes ever happened? If you stepped 300 years into the future and no changes had been made, what would you think then?

In other words, would you really contend that every passing day without a change is further proof of near-perfection? Because if that’s so, it suggests that your constitutional opinions may have become somewhat faith-based.

When will we see our next constitutional amendment? Will we see it ever?

Some critics of the Constitution – from the sublime (Roderick Hills et al) to the ridiculous (Sandy Levinson and chums) – cite the failure of all amendment proposals for a good long while as evidence that the Article V amendment process is broken. Personally, I am inclined to view that data as evidence that the Article V amendment is working very well. There are very few things in the Constitution as presently written that are broken, even fewer challenges to the Republic that need an amendment to fix, and I have almost no confidence at all in in our present ability as a polity to undertake an amendment. Everyone may have a wishlist of things they’d like written into the Constitution (a pro-life amendment, a pro-choice amendment, a pro-federalism amendment, a term limit amendment, etc.) or out of it (in my case, the 17th amendment, as I’ve explained passim), but not all prayers should be answered.

The present situation illustrates why pointing to the Constitution is often misplaced in policy discussions. Say we don’t want the feds going after cannabis users. The Congress could amend the CSA to remove pot from the schedule of controlled substances. The Court could overrule Raich (and perhaps Wickard and its progeny while we’re at it), shutting down enforcement of the CSA. The President could exercise good old prosecutorial discretion, putting enforcement of the CSA in the courts in abeyance, or (as he has done here) the less common and more brute force remedy of simply not enforcing the law. Say Congress is outraged by the President’s action: they could create a private right of action, bypassing executive branch enforcement altogether (such creative attempts to bypass executive checks have been tried before: Congress’ conscription of state officers to enforce the Brady Act were struck down in the Printz case). Say the public is outraged: they could vote him out of office and elect a better one. There are plenty of subconstitutional ways to address these kinds of policy concerns.

Law enforcement resources are always limited and must always be prioritized. We generally don’t bother enforcing the more clearly ridiculous laws. Glad to see that pot prohibition is increasingly migrating to that category.

There’s a core group that’s consistently in favor of the constitution’s original prescription…which says that any unenumerated powers remain within the spheres of the individual states. IMO, these folks are well-versed on the twists and turns, and pretty consistent in their views. I may not agree with them about everything, but the real core folks are not hypocrites.

And then there are the various special interests on both the left and the right who will blithely play the states rights card as a matter of convenience should the opportunity arise. These groups are not at all consistent, and not at all interested in the issue of federalism. They are interested only in employing whatever available arguments support their position on the issue in question. THESE folks are the hypocrites. And I’ve seen them embrace states rights in full force on both the left and thew right when this position served their purposes.

I’m glad that Obama has issued a directive prioritizing resources away from hassling pot smokers, especially sick ones. Because I think it’s a waste of time and resources, even if the law says that these folks should be hassled.

But I am not unsympathetic to Simon’s arguments about consistency and elegance and reason. In a perfect world, we’d change the rules without bending and breaking and ignoring other rules we made. Still, in the end, I am persuaded that in this modern era, our now baroque system of laws is seriously beset by entropy and inertia. When will we see our next constitutional amendment? Will we see it ever?

When I contemplate that, I am willing to reluctantly settle for end-arounds which make marginal improvements and don’t seem to me to threaten the republic. But it’s far from ideal, that’s for sure.

I believe the saying is, “A rolling tone gathers no bust.”

Michael,

It’s always Taco Bell. Always.

Or Doritos.

Or Hostess cupcakes.

Sugar donuts.

Or maybe blow off 7-11 and hit the old Taco Bell.