11/27/12 – Sheldon Richman – The Scott Horton Show

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Okay, so I have a great article here by our friend Sheldon Richman at the new and improved fff.org, the Future Freedom Foundation website.
It's called Nullify the Drug War.
Welcome back to the show, Sheldon.
How are you doing?
I'm doing fine, and I'm glad to be with you again, Scott.
Well, good.
I'm happy to have you here, and I'm happy to see you writing about the drug war.
Man, I hate the drug war.
In fact, when I go back thinking about it, I guess I'm a little bit thankful for it because it's part of what made me this way when I learned in the 1980s that Oliver North was a dope pusher.
In fact, that was the title of the pamphlet I read.
It was called Oliver North, Dope Pusher.
And I thought, man, the Republicans sell cocaine at the same time that they lock up all the black folks that they can find using cocaine anywhere in America?
Why, that doesn't quite seem fair.
And well, you know, I was pretty much born hate in this state, but that really helped solidify the levels of corruption that the American system can be involved in and get away with, and what lengths the media will go to ignore good journalism.
Look out for where the profits are going.
Yeah, exactly.
Follow the money.
Right, yeah, like Wesley Snipes in New Jack City where he's going, hey, there ain't no Uzis made in Harlem.
We don't have any coca crops.
We don't have any banks.
Where do you think we laundered this money?
At a white man's bank, buddy.
A Republican's bank.
Yeah, the drug war, it stinks.
There's not much more to be said about that.
It's just bad at so many different levels.
What it does to people, how it imprisons people that shouldn't be in prison, destroys inner cities, stimulates black market and empowers some pretty violent types.
I don't know, there's nothing you can say about it that isn't completely negative.
Of course, what I tried to draw attention to is the fact that we have now two states that have legalized marijuana, but not just medically.
Now, the two states have taken the steps, Washington and Colorado, of legalizing it for anybody.
Now, of course, they're going to treat it like alcohol, which from a libertarian point is not good enough yet.
They want to tax it, of course, and regulate it.
But alcohol is that way right now, so we have to see some progress in this.
And of course, that's going to put them into conflict with the federal government.
So the question is, what happens next?
We know what the Obama administration does with the California medical marijuana dispensaries.
It raids them, and it's been doing it at, I hear, double the rate of what the Bush administration was doing.
So that doesn't bode well for Washington and Colorado.
If they're going to go after medical marijuana, it seems to me they're really going to go after people who are providing it and growing it and selling it for anybody, any adult recreational use.
Well, they have been going after the medical marijuana in California and even in Colorado up until now, right?
But now, has the Justice Department, have they put out...
I saw where the Deputy Attorney General said that, well, don't expect anything to change, but then I guess they also said, well, wait, and we're going to have an official position coming out about what we're going to do about these new referendums.
Yeah, I haven't heard much from them.
Of course, when Obama first came in, I think it was Holder said they were going to loosen up on California and not raid the dispensaries.
Well, they had to distract from arming the Sinaloa cartel with all those machine guns, so they came up with something new to do.
No, but the fact is they didn't.
They didn't keep their word.
They made it sound like we'll leave you alone, California, and they didn't leave them alone.
They're raiding them at twice the rate as the Bush people did, and so that was just a lie or a quick change of policy, whichever you want to say, however you want to say it.
So that's a bad omen for Colorado and Washington because if they're not going to let sick people have it, why would they let well people have it?
Right.
So I'm hoping there'll be a constitutional crisis.
I'm hoping they'll invoke nullification, and my article linked to Tom Woods' book on nullification, which explained the history of it, which goes back to Jefferson and actually beyond, and the principle behind it, and this is a perfect occasion to invoke nullification, that the people of the state have decided that the federal law violates their liberty and are therefore going to ignore it.
That would be great.
All right.
Now, hang on a second, because I want to talk about nullification here in a sec, but let me focus on Colorado and Washington current day.
Now that they've passed these ordinances, I guess, or these state laws, what they say is they have legalized the carrying of thus and such amount right up to an ounce or whatever, but have they made it legal for one guy to sell a bag of weed to another guy, or is that still a crime?
Yeah, that's a good question.
I was under the impression that you could buy and sell small amounts.
I don't know otherwise.
I'm asking.
I just don't know.
If you're allowed to have it, I mean, you got to get it somehow, right?
Well, I don't know.
I mean, this is the trick that they always play.
This is the case that Timothy Leary won in the Supreme Court, was that first they passed the Tax Act because they had no constitutional authority whatsoever.
They didn't even pretend that they had constitutional authority to outlaw pot.
So they passed a tax against it.
But then the whole thing was a double jeopardy, kind of a Catch-22 deal where, well, the double jeopardy was later.
It was a Catch-22 where you can't get the stamp unless you have the pot, but you can't have the pot without the stamp.
And so they'll bust you that way.
And then that was the case that Timothy Leary eventually won, was that that was unconstitutional.
But by then, of course, it was 1970 something.
And any pretense that the Constitution could bind the power of the federal government to pass a law against whatever they feel like was long dead.
And so it didn't matter that they struck down the Tax Act, but then they kept the other 700 laws against it anyway.
Well, yeah, with marijuana, you're right.
It began as a tax.
And then in 1969, it was found unconstitutional because of Fifth Amendment issues, because apparently you had to basically admit you're committing a crime in order to get the stamp, right?
Right.
But then a year, so a year later, Congress just...
Oh, is that what it was?
I thought it was double jeopardy.
But no, I guess you're right.
It was the self-incrimination thing.
It was Fifth Amendment.
I'm not sure what the self-incrimination was, though, since it wasn't illegal at that point.
It was just taxed.
But anyway, in 1970, they replaced the whole thing anyway with the Controlled Substance Act.
And I didn't hear anybody say, what's the constitutionality for that?
You know, where's the constitutionality?
But anyway...
Yeah, that's the age of Richard Nixon.
Well, that's right.
If the government does it, it's fine.
Look, here's the ballot language from Colorado.
It's an amendment to the Colorado Constitution, and it says, providing for the regulation of marijuana permitting a person 21 years or older to consume or possess limited amounts of marijuana, providing for the licensing of cultivation facilities, product manufacturing facilities, testing facilities, and retail stores.
So that answers your question on Colorado.
Man, so maybe I should move to Colorado.
That sounds good.
I don't know if Washington is similar, but we'll find out.
That's pretty broad.
Now, it's going to be regulated.
The only thing about Colorado, though, is there's no Mexicans around.
You know, it's just all white people.
It's really bland and boring.
Yeah.
And the only black people live, you know, in East Denver, but you never run into them anywhere else in the whole state.
So the whole place feels like a shopping mall or something.
It's terrible.
That might just be me.
I don't think you could get me high enough to like it anyway.
Well, I'm looking at trying to find Washington's here.
Washington's may be a bit more restrictive and talk about, you know, use and possession rather than manufacturing, but I'm not sure about that.
Yeah.
Well, that's good.
I mean, hey, that's really good news, actually.
I guess I thought it was going to be one of those things where, you know, they sort of kind of decriminalize it, like they say, you know, we'll let you off if you only have so much in your pocket, but we better not catch you ever getting it to put in your pocket kind of thing, which I guess I'm really surprised that the laws that they pass are better than that.
Now, did they have any kind of was it just the people in both of these states just insurging against their states?
Or did they have some cops agreeing with them?
Were there, you know, any like parts of, you know, rich official establishment power in either of these states that agreed and said, yes, we really ought to go ahead and do this now?
Or was this really just regular folks telling all of them to stick it that I'm not sure of whether any police organizations came out for it.
The governors, at least in one of the states, the governor was against it.
I think in Washington State, the government, the governor was against it.
But I had not heard that, you know, that a Purist Association or Fraternal Order of Police or anything like that.
Or even the Republican Wives Committee or whatever, you know, any part of civil society, as they call it, when they're trying to create one somewhere else.
Well, OK, this, according to Wikipedia, the Washington Initiative had the opposition of the Washington Association of Sheriffs and Chief of Police Chiefs and also the Washington Association for, well, of course, substance abuse and violence prevention.
So it doesn't sound like they had.
They had that the governor in Washington, Christine Gregory, opposed, opposed it.
I wonder if the iron bar and concrete manufacturers had lobbied it in the case.
Well, according to economics of the prison industry.
I wonder also whether Colorado and Washington are very big on the, quote, unquote, privatized prisons and whether, you know, it makes a difference whether they are or not.
Something like this.
I wonder if anybody's written about it.
Here's more information on what the Washington Initiative does.
This measure removes state law prohibitions against producing, processing and selling marijuana subject to licensing and regulation by the Liquor Control Board.
Allow, limit, allow limited possession of marijuana by persons age 21 and over.
Oppose a 25 percent excise tax on wholesale and retail sales.
So there you go.
It's not just, yeah, you can have it, but you can't, you're not allowed to get it.
But if you have it, we'll leave you alone.
There you go.
See?
All right, well.
And that includes sale and manufacturers.
So these manufacturers, so these are pretty broad.
You know, these are these are broad initiatives.
Now, they do allow for taxing and regulation, of course, similar to alcohol.
All right.
Now, here we get to the politics again is, you know, when it comes to nullification.
First of all, it's hard when the governor's not on your side in the first place, I guess.
But then it's nullification really is just a bluff, right?
Because it's not like, well, it's hard, pretty hard to imagine anyway, a situation where a state government is going to use the National Guard to try to repel federal force if they really want to force an issue.
They're going to back down, right?
You're saying if the feds send forces in, the state would back down?
Yeah, I mean, I'm saying it wouldn't even get to that, right?
If the feds were determined to tell the state of Colorado, no, really, you know, our DEA is still going to, you know, do their pot job in your state as much as they feel like the state government of Colorado isn't going to do a damn thing.
In fact, they'll probably just back down and go along with whatever the feds want, right?
Well, I doubt it.
But, you know, you're probably right about that.
But let's look at California.
We have, I haven't heard, and this goes to your point, I haven't heard that California is putting state troopers in front of dispensaries, right, to guard against the DEA agents coming in.
Yeah, hell no, not even in Bush years.
And they still operate.
So there's going to be this limbo probably, just like it is in California.
They're not all closed down in California, despite what the feds are doing.
And without outright protection by the state officials, they still operate.
So there's sort of a limbo.
I guess nobody wants to force a constitutional crisis, because we had the lawsuit, we had the suit that went to the Supreme Court, but that wasn't brought by the state.
That was brought by Raich and the other woman who was providing Raich with marijuana.
And they sued to try to stop the state and stop the feds from interfering.
And of course, the Supreme Court said, no, under the Commerce Clause, the feds do have the power to stop that.
Except for Clarence Thomas.
One of Clarence Thomas' heroic...
So as it stands, in other words, anybody in California growing or selling or trading in, buying, consuming weed under the medical marijuana regime, they're all still in violation of federal law.
And they're all still in limbo and could get nailed to the wall over it by feds if the feds felt like at this point.
Right.
They have a lot of...
I'm sure Obama thinks he's got enough on his plate right now.
He doesn't need it to offend all...
First of all, it was before the election.
Maybe they even eased up before the election, not that California was in doubt.
But I'm sure a lot of this is political and they'll do it if they find there's some political capital to be made by doing it.
But on the other hand, if they don't do anything, it emboldens other states.
So we could expect to see this on the ballot in coming years.
Well, and the DEA cops themselves are going to be pissed.
I mean, them and the FBI, they have a lot of job security at risk here.
And they have a lot of power, don't they?
Yeah.
Well, there's a lot of money in the war on drugs.
That's right.
All the law enforcement, all of the rehab centers and things that get government money because they get coerced patients or clients.
I mean, a lot of people go into rehab because a judge tells them, you're going to rehab or you're going to prison.
Which do you want?
And they say, I'll take rehab.
And you think...
And the people that run those rehab clinics, even if they're nominally private, love that system.
They get forced business.
I mean, they get customers, customers, quotes around that word, customers forced into their care who don't want to be there, but they just regard it as better than, I guess, rape in prison.
Yep.
So there's a lot of money riding on it.
Perfect.
There's a lot of money riding on it.
And also, the drug lords, I suppose, are funneling money into anti-legalization efforts because that's not good for them either.
Right.
Yeah.
That's what they said about prohibition, right?
It was the Baptists and the bootleggers, their coalition that kept it illegal.
Right.
Some enterprising reporter ought to check it out and see whether he could find out whether the Mexican cartels were putting money into the anti-initiative campaigns in the states.
That would be real interesting.
That might be hard to find.
I guess those guys are pretty good at money laundering.
Well, and I guess, to me, it's going to be interesting to see what effect this has on the pot markets in the neighboring states, especially, and really the rest of the country because, I mean, I don't know.
I don't know.
If they can crank out that much more volume without the worry of being busted for it, right, if the size of the fields can just get bigger, you know, as much property as you can afford to grow weed on, whatever, then we're going to see a real drop in prices and a lot of changes in the pot market across the country, it seems like to me.
And that's going to probably put a lot of, you know, different strange pressures on the different police agencies around the country and how they deal with it, too.
Well, yeah, that's right.
We're entering a new phase here.
This is going to get interesting.
You know, I don't think we're going to see nullification formally invoked, but there's such thing as sort of de facto nullification.
Tom Woods' book talks about the Real ID case where a lot of states, a lot of people in the states resisted the government's attempt to standardize ID cards and driver's licenses, things like that.
And a bunch of states refused to go along with it.
And while it didn't come off the books, the feds just sort of let it go.
Now, there is talk about a new form of it, which I guess has been in Congress, but I don't know if it's very actively being pushed.
I forget what it's called, something else that's got ID in the title.
But there was a de facto nullification in a way.
It's not off the books, unfortunately, so it still poses a possible threat.
It just may be dormant.
We know, I guess.
So how exactly would this work, then, if a state was determined, say a governor was won over to the fact that, hey, he's sworn to uphold the law and faithfully execute it and all that kind of crap, then what does he do?
File an injunction in the federal court saying, court, order the president to stop trying to enforce this federal law in my state, something like that?
Or what?
Well, I guess he could go to a state court and say, look, this law has been passed in Colorado or Washington.
That would be interesting.
I mean, I don't know.
I mean, it's sort of uncharted territory, so there may be several different methods if the governors are going to have the will to do it.
And of course, that now depends on what the Obama administration does.
They'll probably cool it for a little while.
So there may not be any immediate event to prompt the state going into court.
I don't think the state can pretend that the initiative was never passed, because how can they do that?
Now, in one case, I think they've changed the Constitution.
I don't know if it's an amendment in the other state or not.
But the point is, these have the status of law, so it will be very interesting to see what it is they do.
Yeah.
Well, and I guess if they're really nullifying it, that sort of implies that they've given up on the courts, that they're just, you know, they're breaking away from that system entirely and retreating back to the, hey, I ratified your Constitution, allowed you to exist in the first place, and I'll take you right out of this world, too, kind of argument, right?
Yeah, well.
Which I'd like to see.
I mean, I'm not in favor of, really, the Articles of Confederation either, but I'd like it better than this.
Oh, sure.
Yeah, it's definitely better.
I would still say it's too much government for my case.
But, you know, I wish I met some of the people who were living back then, because I'd be saying to them, look, you had a quasi-government that had no power to tax and no power to regulate trade, and you stopped it.
You ended it.
You know, what were you people thinking?
Yeah.
You know, I was arguing a long time ago now, many years ago now, I was arguing with a left anarchist type about why the Constitution and a limited republic is the way to go and all of this, and he was going, oh, really?
Well, it looks to me like you took a pristine, empty, perfect continent and you built a slave state on top of it, and it was the Constitution, was the charter for the whole damn thing.
You just enslaved a whole perfect place, man.
And that's freedom?
That's, you know, the virtues of a limited constitutional republic?
Oh, and it's world empire that operates everywhere that it doesn't live, you know?
Well, you know.
Ain't very limited.
I had to concede my point or his point at that point.
In fact, he's the guy, his name is Copperhead at Free Radio Austin, and I said, you have to admit, socialism with a police force is communism.
And he goes, well, you have to admit that capitalism with a police force is fascism.
And I said, you're right.
All right.
And yeah, well, I'm against that, too.
No police.
That will be fine.
Then you can have a drug war, right?
If it just comes down to, like, a bunch of Republican wives nagging, I could deal with that, you know?
Well, if that's, yeah, if that's all it is, it'd be an improvement.
But I just, I've, I'm just going to be watching this real closely because I don't think either side wants a confrontation, but I don't see how they're just going to sit on the sidelines.
The feds are going to sit on the sidelines and let people grow and sell and use marijuana without even the cover of, you know, a doctor's prescription.
Yeah.
Well, and you know what?
I make fun of the Republican wives, but I don't even think they have a mother's against people getting high, right?
It's drunk driving.
But really, the only pressure for the drug war are these corrupt, illegitimate interests we were talking about, the cops themselves, their unions, Anheuser-Busch and the iron bar companies and whatever.
So if the feds, especially under Democratic control, go really, you know, pushing and continuing to enforce specifically the pot war against these two states, Washington and Colorado like this, I wonder what excuse they're even going to invoke because it's not the constituency, not the broad based, you know, voting constituency of the Democratic party that favors the war on drugs.
Well, I would hope not.
I don't know about that.
I haven't seen any polls lately on the, on public opinion.
I think on marijuana, it's becoming more and more.
I guess I just assume Democrats are better on it than Republicans, but I don't know.
Yeah, that's a, that's a risky assumption.
On strictly marijuana, I know that as far as I know, and I think I've read this recently, that, you know, the numbers are growing more and more favorable toward legalization.
And we'll have to fight the other fight later about the other substances.
But, you know, the other side still wants to argue that it's a gateway, it's a gateway to all the other stuff.
So we're now, you know, we should be talking about the other stuff, too, because they talk about marijuana being a gateway, which is sort of silly because anything and everything is a gateway.
I think that that's a great point.
And in fact, I think that's always the best argument to make, too, is not a pot argument, but a heroin argument.
Of course, we got to legalize heroin yesterday.
Yeah, well, I think one of the best things written in this whole subject is Jacob Solem's book, Saying Yes, which I would recommend to anybody because, you know, Solem wrote this book, and he explains in the beginning, because so many books about the drug war begin by saying, I think drugs are terrible.
It's the worst thing in the world, except there's one thing worse than drugs, the war on drugs.
And then they go on to make the good argument against the war on drugs.
Solem comes along and says, that's nonsense.
Every drug you can think of has been and is routinely used responsibly by somebody.
And he said he knew this from his own personal experience, and he interviewed a whole lot of people for the book.
So he says you just don't hear about those people.
Obviously, you don't hear about them.
They're using it responsibly.
So they don't do it on the street where you're going to see them.
They don't get arrested because they're sophisticated enough to not get caught because they just do it at home responsibly, the same way people use, you know, drink a martini on the weekend or after work.
And he and he has a chapter on, you know, each of the drugs.
And, you know, he's talking about heroin and cocaine and ecstasy.
And I forget what else.
It's been a while since I read the book.
But he talks to people who use these drugs responsibly, the same way people use hard alcohol.
Right.
So he's trying to not only that, I mean, even if you're talking about dying junkies in the alley, you know, using heroin until it kills them.
The reason it's going to kill them is because it's black market, impure stuff, and they don't know the right dose compared to the last hit they took.
And so that's what kills them about, you know, I mean, you could be a really strung out junkie and not die.
It's the impurity in the dose.
It's really murdered the drug war.
No, that's a very good point.
You don't have the same kind of quality control.
I mean, you do have some of that.
There are brand names do emerge, I'm sure, in the black market just because that's what people do.
But it's not quite the same.
And you don't have access to courts.
And, you know, if you get a bad batch of something and so there are all those problems and some of the most famous deaths, they're always called overdoses.
But it's true that so many of those cases, if not all of them, are not overdoses at all.
Right.
They're just they've been cut with battery acid or something like that.
I mean, Lenny Bruce died from impurities and heroin, not from too much heroin.
He was probably an experienced user.
He probably wasn't likely to take an overdose.
Right.
But he got some bad.
He got some bad stuff.
So I would recommend the Solemn book to anybody, because what Solemn's book does, which is so important, is he corrects people's impression.
Most people have this impression that, you know, addiction is like some sort of demon that hides in an alley, right?
And you walk past the alley and it jumps out of it, out of the alley and it occupies your body, right?
It takes you over.
It's not an act on your part or anything.
It's just something that happens to you.
And as long as people think of addiction that way, they're going to be drawn to the drug war.
They're going to say, yeah, my kids may be protected from that or other people.
You know, they don't usually think they need to be protected, but everyone else needs to be protected.
And once you demystify that, as Solemn does, I think that will help people along the way to think about this much more rationally, that it's just a substance.
There are a lot of dangerous, quote, dangerous substances that are not illegal.
Obviously, alcohol being the big one.
And there's no grounds for treating these other substances differently from the ones that are legal.
Thomas Sass's two books on the subject are also very good, Our Right to Drugs and Ceremonial Chemistry, two very good books about the culture of the drug war, the whole, well, the whole cultural aspect of it, how they were founded in racism.
You know, each drug was identified with a particular other group that we didn't like.
And so we had to demonize the substances they'd like to use recreationally, like the Chinese used opium.
And there was a lot of jealousy and envy toward the Chinese because they were very good workers on the railroads.
And so you had to demonize what it is they like to do in the off hours.
And, you know, marijuana with blacks and jazz musicians and Mexicans.
So it's a thoroughly rotten phenomenon or institution, the war on drugs.
And as Tom liked to say, the late, great Thomas Sass would like to say, it's not a war on drugs.
You can't make war an inanimate object.
It's a war on people.
It's a war on manufacturers, merchandisers and consumers of particular substances that are disapproved of by the ruling elite.
That's what it is.
I know war on drugs is sort of a convenient phrase, but we really need to remind people that it's not a war on drugs.
They don't put drugs in prison.
Well, drugs get into prison, but they're not sent to prison by judges and they're not caught by police.
People are.
It's people's lives that are ruined.
Drugs aren't ruined.
Yeah.
Well, you know, here's something that I don't know if Solomon does this in his book or if anybody's ever really done this, maybe.
Well, you ought to write the article because I'm much of a writer no more.
But anyway, I'd like to see like the thought experiment about, well, what would America be like if we never did have FDR and we never did have Richard Nixon?
We never did have Ronald Reagan and the drug war as we know it anyway.
What if it was still, you know, the kind of minor project that that Nixon inherited from LBJ?
Something like that is still horrible enough.
But how much different would our society be?
I mean, it seems to me like it's changed so much and all for the worse because of it.
And of course, I'm thinking particularly about the form of the police agencies of America now, where they really are like the soldiers quartered among us in the Declaration of Independence.
Yeah.
Yeah, it would be a different world.
I mean, you know, Tom's book, both of the books talk about the pre-drug war era before the Harrison Act was passed in 1914.
And, you know, people weren't like dying in the streets.
Little old ladies would go down to the pharmacy and be able to buy, you know, opium to make tea out of or whatever, you know, different or various narcotics which were treated, people use routinely for headaches.
There weren't, there was not a nation of addicts.
You know, I believe the percentage of people who sort of, you know, wrecked their lives on drugs is more or less constant throughout history, no matter what the laws were.
But, you know, as Saas says, he sums it up in his book, Our Right to Drugs.
He says, in 1914, trading in and using drugs was a right.
In 1915, limited drug controls were a constitutionally questionable tax revenue measure.
By 1921, the federal government had gained not only complete control over so-called dangerous drugs, but also a quasi-papal immunity to legal challenge of its authority.
I mean, it's just, and all this just sort of happened.
It wasn't done by constitutional amendment.
You know, at least when the prohibitionists went after alcohol in the 20s, at least they thought they needed to get a constitutional amendment.
I'll give them that.
Now, maybe they would have preferred to do it without that, but someone thought you needed an amendment, right?
That they couldn't just do it.
And so they got the amendment.
With drugs, no one ever thought they needed to amend the constitution to prevent that.
It was always, you know, done under the guise of revenue and the police power.
Yeah, well, the constitution, it's quaint, you know.
Well, I guess, and when the court looked at the Harrison Act in the 20s, they said, the, yeah, this is interesting, because originally when the tax was upheld, the court expressed some qualms about whether it was constitutional, but they said, well, since it's raising revenue, okay, then they can do it.
I mean, you know, later courts have said the government's power to tax is all-embracing, it's comprehensive, they can basically do anything they want.
So they let them do this.
Later, when this bill of Harrison Act came back before them, the court, for some reason, a few years later, in the 20s, they said, no, no, it comes under the police power, and the right to exercise this power is so manifest in the interest of public health and welfare that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.
So they wouldn't have to talk about it.
Everybody already knows they have the power to do this.
We're not even going to discuss it.
That's the Supreme Court.
Amazing.
Yeah.
Well, you know, yeah, I guess that's just the same old thing as like when finally Ike Eisenhower came into power, and he didn't repeal a single thing, really, or very much at all that FDR and Truman had done.
He's basically ratifying it all as, you know.
Right.
Basically perfectly legit, the same way that Obama has basically ratified everything that Bush did.
So where it was this outrageous revolution within the form, and even he was elected with a mandate to undo those very things, since he didn't undo them, but only expanded on them.
He just, you know, helped solidify it all as just kind of the permanent way of things.
And so then after you've been through generations of this, where really the Supreme Court is nothing but a rubber stamp.
Their only job is to sit there and help the legislature and the president pretend that what they're doing is legit.
I mean, that's really their role in this society.
At that point, Scalia's or whoever else, Thomas is kind of right.
You know, nobody questions they can do whatever they want.
Of course they can.
Right.
The Commerce Clause has become, now they've pulled it back a little bit because of, you know, Thomas helped out in those cases.
But for a while...
It all depends which one.
I mean, he'll completely contradict himself on another states rights case or whatever.
Yeah.
And I don't want to push states' rights, because, you know, I don't like the sound of states' rights.
I don't think it's states that have rights.
It's people that have rights.
And here's the funny thing.
I mean, when you mentioned nullification, and Tom Woods discusses this in various ways, people identify nullification with the South, with secession, with slavery, with racism, and therefore it's bad.
But he points out that the nullification was attempted far more often in defense of individual liberty than in ways that violated individual liberty.
For example, well, this wasn't formal nullification.
It was related.
Several states passed personal liberty laws in the late 18th and through the 19th century as a way of countering the Fugitive Slave Act, which various versions were passed at various times, the latest, I guess, being 1850.
And that just meant, you know, you had to turn a runaway slave over to the person claiming to be the slave's owner.
But several states passed laws saying, no, wait a second, not so fast.
The slave has a right to a jury trial and an attorney and all this stuff, which offended, of course, the South very badly.
And the South complained about it.
Now, if they were for states' rights, how can they complain that northern states were passing personal liberty law?
They wanted the federal government to crack down on states that were passing personal liberty laws and getting around or nullifying the Fugitive Slave Act.
So they only invoked states' rights when it was convenient.
They weren't principled advocates of states' rights.
Yeah.
And you know what?
The fact that they tried to hide behind that and the reserved powers of the states and the limited powers of the government in order to just be bigots and keep little black kids from being able to go to school or whatever, that just goes to show what scum they were hiding behind, you know, the patriotism, the last refuge of scoundrels and all that kind of thing, hiding behind the limitation on the power of the national government to limit their power to, you know, abuse the citizens of their own state.
You know what I mean?
But that shouldn't have anything to do with the doctrine itself when the doctrine itself, like you're saying, is really the opposite of that.
It's every time the national government is trying to force states, many times anyway, when they're trying to force the states to do the wrong thing, it's the states that are standing up to the feds, like on nullification and the same thing with the war of 1812 and like we see right now, like you're saying, the Real ID and with these pot laws.
Right.
And one exception really is the governors of the Jim Crow South, right?
Yeah, that's how Woods explains it.
He points out that the first formal discussion of nullification in the national period, once the country was an independent country, was Jefferson and the Kentucky resolutions, which were objections to Adams' Alien and Sedition Acts.
The Sedition Act forbade criticism of government officials, even making fun of them, much less hard, you know, criticism.
And Jefferson and then Madison does it with similar Virginia resolutions, talks about how the states, you know, the number one, this is an outrageous law.
It's not in the spirit of the Constitution and the states, therefore, should need not regard it as law.
See, that was the point.
They didn't say that the states have a right to ignore federal law.
What they said was if the states or the people in the states regarded a law as unconstitutional, then it was not a law, period.
So they weren't really ignoring federal law.
They were saying, they were declaring that it was a law.
They were declaring that it was not a law because it flew in the face of the Constitution.
Because even the Supremacy Clause, which, you know, the Supremacy Clause, you would think would end the discussion, right?
It says the Constitution and laws passed pursuant to the Constitution are the law of the land.
But what if a law is passed not pursuant to the Constitution?
The nullification people said, then it's not a law.
And therefore, it's not binding on the people of the state that declares it's not a law.
That's the logic.
And I think that's pretty darn good.
I'm not a great fan of the Constitution.
You know, I'm a spooner.
I'm a spoonerian.
But as long as it's in effect, we might as well get as much as we can out of it, right?
Right.
Yeah.
Well, at least, you know, try to invoke the parts that are supposed to limit what they can do to us, you know?
I don't know.
I mean, this is the whole thing, right, is that the people who run the state are always the ones who invoke American exceptionalism, like it's a writ, they're licensed to kill, to do whatever, because they're so special that sins become holy when they commit them.
And this kind of crap, when really what's what's at least in theory exceptional about America is that the people come first and that they allow this government to exist just to protect their rights and that this may be insanely crazily unheard of in Germany or something.
But yeah, in America, we have this can tanker is sort of limited constitutional republic sort of a setup with lots of very serious checks and balances in it.
So that, you know, this is exactly the kind of thing you would only see here, because really we mean what we say when we say everybody's born free and they allow the government to be their security force just as long as it's fulfilling their needs, et cetera, like that.
And then it'd be just like in that old William Jennings Bryan speech.
We would get all our regime changes overseas by the benign example that we set of this is how you do it.
If you want to run a free society, this is what it's like to live in an exceptional American way and really be free, you know, but don't tell anybody with power that that's what American exceptionalism means, you know, because they can't hear it, man.
They don't know what the hell you're talking about.
Right.
And you like to cite the principle of ambition, you know, countering ambition, which was Madison's defense for the scheme of the, you know, they set up in the constitution.
Of course, we know it didn't quite work out that way.
I mean, once in a while, the branches clash with each other, but generally they don't.
They ratify, they ratify each other.
But the states have a role in that, too.
I don't know, you know, I'm not sure Madison was convinced of that.
Madison wanted a constitutional amendment or a provision in the constitution that would let the federal government nullify state laws, basically veto state laws.
He didn't get it.
These guys were not, you know, advocates of the states.
They really wanted to water down the states and turn them into, I think you'd like to say counties, right, administrative districts.
Well, except for the, you know, the Jeffersonians didn't agree with that, but the so-called Federalist Party, which were the anti-federalists, really the true anti-federalists were those guys.
They wanted to limit the states.
And so...
In other words, Hamilton was such a radical loyalist that he made Madison look like Jefferson, but he was no Jefferson.
Yeah.
I mean, he moved toward Jefferson as he got older, but he was always, yeah, much, much, much weaker.
I mean, Jefferson did influence him as time went on.
But I would say that as long as this system is still in existence, the states are part of the checks and balances too, but the feds don't like to acknowledge the states as being part of the checks and balances because that would open up a real can of worms for them, but nullification is part of the checks and balances.
In this connection, I recommend everybody read a very good paper by Roderick Long called Anarchism as Constitutionalism.
It's quite an ingenious article where he argues that individuals' anarchism, conceived as he conceives it, is actually an extension of the principle of checks and balances and of constitutionalism.
It's not an abolition of checks and balances and constitutionalism.
It's an extension of it throughout society.
It's quite a good paper.
You can look for it online, but it's also in the book he co-edited with Tibor McCann called Anarchism, Minarchism.
It's a government part of a free society, but I highly recommend it.
It's a very interesting way to think about stateless society.
Yeah, that is interesting.
It's sort of republicanism down to the last man, right?
Just more and more and more checks and balances until everybody's free.
No, that's right.
You know, no one gets sort of sanctified as being the final word.
Any point out that even in the current system, no one really has the final word because even if the Supreme Court strikes down a law, there are things Congress could do to get around that.
They could either tweak the law and pass it again, or they could pass a constitutional amendment.
So even that's not the end.
Now, in most cases, it is in practical terms, but no system guarantees true finality, so that's not really an attack on statelessness either.
In practical terms, there would tend to be an end to a particular dispute because it's costly to go on forever.
If you're paying out of your own pocket, you're going to tend to want to bring closure to a particular case and not have it go on forever just simply because you've got other things to do in life.
But anyway, I just bring that up.
Needless to say, in a stateless society, there'd be no more drugs.
Well, and so, I mean, and this brings us back to the war on drugs and what you're saying about Madison there.
The national government doesn't have the power really to strike down a state law or not by legislating anyway.
I guess the Supreme Court can strike one down, but so this very well could come to some kind of constitutional crisis depending, I guess, on how bad the governments of Washington and Colorado are willing to fight about it.
But man, I'm really looking forward to some kind of conflict.
I mean, actually, no, I would prefer to just see the national government say, hey, all right, whatever, you legalize pot, we're not going to try to enforce it in your states.
But as long as I know for a fact they're not going to do that, then I'd like to see, as you recommend in your article here at FFF.org, Nullify the Drug War.
Let's have a constitutional crisis over this.
Let's have a fight over this and see who's on whose side and which side can win.
You know, it could be a lot of fun.
I welcome it.
I mean, I started off the article by saying, you know, Jefferson said there should be a revolution every 20 years.
I don't know if he meant a bloody revolution.
I would hate to see, I don't like violence, but if he meant an intellectual revolution, fine.
But I certainly would like a constitutional crisis now and then.
I think that would be good for everybody.
Because it would wake some people up and get them thinking, you know, in a way that they won't if things are just sort of going along, right, quietly.
Right.
Yeah, and especially something about this, where this is so far overdue, you know?
I mean, we ought to be talking about all 50 states are telling the national government to go to hell on this one this year, you know, or 10 years ago.
But, you know, on this side, it's certainly long overdue, and it'll be an interesting thing to see how it pans out, you know?
Absolutely.
I mean, my state had medical marijuana on the ballot, and it lost by a few points.
I thought it would have been a much greater margin than it lost by.
So I was a little surprised that it was such a narrow margin.
So we'll see what happens.
Maybe they'll actually put real legalization on there.
See, I'm not fond of medical marijuana because I think it just gives power to the doctors in the therapeutic state, right?
You have to have an official disease before you can have marijuana.
Now, I realize things are a little more open in California than that implies, than what I just said.
But it still is much too much control for my taste.
I think they should just legalize it.
Yep, me too.
All right.
Well, we're way over time.
Thanks very much for your time.
It's great talking to you as always.
I always enjoy it.
Bye.
Hey, y'all.
Scott Horton here.
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