Tuesday, November 30, 2004
what dan does instead of leaving his desk at lunchtime
I was wondering how the arguments went yesterday. This article doesn’t inspire much confidence in me that wisdom will prevail.
They’re going to decide on the basis of Filburn? That’s just dumb. Filburn is about cattle feed - a commodity used to support a commodity. Were one to grow one’s own feed grain, this would clearly and directly impact ongoing national and international commerce in both feed and livestock. Anyway, that’s the argument, and it’s not specious on its face.
Then you try to fit medical pot into this theoretical framework, and it doesn’t match up. The pot at issue in this case is not, nor does it relate to, any commodity as to which the US government controls commerce. It’s an herb intended purely for personal medicinal use - a use that has no bearing on other ongoing commercial activities regulated by the commerce clause. The only regulation of pot itself has been to make it illegal - expressly removing it from the stream of commerce and by extension from the Filburn analysis. The analogue would be growing grain to feed your own cattle, even if trading cattle with others were illegal. That’s clearly not what Filburn was about, and therefore Filburn is inapposite precedent and should not be treated as dispositive in this case. It is the difference between selling the produce from your garden on the public streets (which congress may see fit to regulate), and eating it yourself at home to keep from starving to death (which seems outside the ambit of the commerce clause to me). One case is about behavior that relates to big business. One is about personal liberty. Am I the only one who thinks these things are different?
But wait, the government reminds us - we need a verdict that doesn’t jeopardize the war on drugs! The commerce clause is the basis for all federal drug legislation. But this is not the drug trade - it’s home horticulture. Nothing is being traded. No state line is being crossed. If there’s a “drug trafficking” problem as regards marijuana, this isn’t it. The real problem that the feds want to avoid is the inconvenience of making sure medical pot is segregated from recreational, unsanctioned pot. I can respect that concern, but it’s a technical, logistical one. Hospitals have all kinds of drugs that ordinary folk can’t get, and we figured out a way to make that work. Handguns have licenses. Taverns have to answer to Alcohol Control Boards. There are always ways around logistical problems, given enough will and time. If that’s the issue we need to address, so be it. But to say that this is a commerce clause issue is to drain any remaining rational content from that part of the constitution - it’s being rewritten as a blank check to congress.
Think I’m done ranting? NOT EVEN CLOSE! This morning I saw a big article in somebody’s newspaper that seemed to be about how more and more states are moving toward including creationism in their science textbooks. And I guess I can see their point: evolution is really just a theory. However, I think they’d be biting into a fat lawsuit if they taught creationism and left out any of the other major creation stories. If they want to say what their bible says happened as an alternate to evolution, I want them to lay out the vedas, the sutras, the pagan tradition and all the others that have been significantly recognized historically. None of them has any greater or lesser claim to truthfulness. I want kids confronted with the choice between evolution and the christian myth - and the buddhist, navajo, and mayan versions of that myth, too. “Mrs Klinger, if God can make fossils that carbondate to 6 million years ago, can he actually make the buddhists not exist? If the earth rides on the back of a giant tortoise and gets reborn at the start of each era, does it really matter how old anything appears to be? If feathers on dinosaur fossils are a trick of satan to get us to disbelieve the bible, what’s the Bahagavad-ghita?”
I think the resolution of many of our “morality” based concerns lies in stricter and more evenhanded enforcement. As soon as Jethro’s son Shadrach comes home from school talking about creation myths other than the “right” creation myth, we’ll have a wholesale reevaluation of what’s appropriate for dissemination in the schools. But to pick one myth and reject the rest based on local historical popularity - that’s a violation of the first amendment, and of an educator’s responsibility. So my solution is not to sue to keep creationism out, but to get it in - get it all in. Don’t say we have not yet made our bed so we need not yet lie in it - it’ll be a mess for years that way. Let’s accept it as made and let’s ALL take a goddamn nap in it - see how it suits us. If we wake up grumpy we may just be ready to do something about it.
