Tuesday, September 29, 2009

Drug Law Top Ten

Drug Law Top Ten

Judge James Gray, in his recent Los Angeles Times Column proposed a list of what he believes most people would agree are the top ten goals of our drug laws. Bearing in mind his cautions that not everyone will agree to all of these and that they are in no particular order, here are his drug law top ten:

  • 1. Reduce the exposure of drugs to and usage of drugs by children;
  • 2. Stop or materially reduce the violence that accompanies the manufacture and distribution of drugs, especially to police officers and innocent by-standers;
  • 3. Stop or materially reduce the corruption of public officials, individual people and companies, and especially children that accompanies the manufacture and distribution of drugs;
  • 4. Stop or materially reduce crime both by people trying to get money to purchase drugs and by those under the influence of drugs;
  • 5. Stop or materially reduce the flow of drugs into our country;
  • 6. Reduce health risks to people who use drugs;
  • 7. Maintain and reaffirm our civil liberties;
  • 8. Reduce the number of people we must put into our jails and prisons;
  • 9. Stop or materially reduce the flow of guns out of our country and into countries south of our border;
  • 10. Increase respect for our laws and institutions.

While I was teaching Controlled Substances Law, I prepared a shorter list of reasons why we have drug prohibition. My question “Why do we have…?” is slightly different from his “What do we expect them to do?”, and mine is shorter and less nuanced since it was intended to spur a discussion among na├»ve students in the first class of the semester, but the lists overlap a lot. My list of reasons why we have drug laws:

  • 1. Eliminate, or greatly reduce, the presence of intoxicating drugs in our society;
  • 2. Prevent drug users from harming other people;
  • 3. Preserve the health and well-being of those who would use drugs;
  • 4. And establish and proclaim a moral standard which people should affirm even if their behavior does not conform to it.

The big differences (other than the amount of detail) between the lists are that Judge Gray focuses on the behavior of those affected by the law and I focused more on the motivations of the legislators. And he focuses on those affected by the law, while I believe that Congress focused on the drugs as if they were the actors and ignored those affected.

The judge is diffident about the accuracy of his list (unnecessarily so: his thirty years experience in the daily application of those laws probably makes him one of our leading experts on what they actually do), but it really doesn’t matter. His list is a wonderful tool.

In many ways, the reformer’s biggest task is to convince the people he comes in contact with daily. Somewhere on his list – which is marvelously non-confrontational – is something that you and your audience can agree on. I don’t matter if your audience is a friend sharing a beer or a Sunday School class or a Rotary Club. Once you have agreed that one or more of these goals is important, then a discussion about how to achieve it becomes easy. Most groups can come up with a list of solutions, many of which are more effective and less expensive than is drug prohibition. Your goal is accomplished indirectly (remember The Art of War?) and without confrontation.

My list highlights the usefulness of this approach by comparison. I was dealing with a small group of students in a classroom situation where I could compel them to participate, even if unwillingly; and I was working under the time pressure of a single class period. I could use confrontation, anger, and even embarrassment as tools (does this reveal something about your profs you didn’t know?). In voluntary situations like we have in reform attempts, those tools are not available. The judge’s list, by allowing us to play nice, is much better.

Once a goal is selected for discussion, what do you want to do with it? Ultimately, you want to answer three questions, even if the approach is indirect:

1. How well does the current drug law achieve that result?

2. What costs does the use of drug prohibition impose? Be creative here: My own personal pet peeve is the requirement that I show ID and sign a register every month when I am “allowed” to buy less than a month’s supply of decongestant – and that law really doesn’t affect the amount of methamphetamine on the street at all.

3. What are the alternatives and what would they cost?

This kind of structured argument can be very effective. First, it is positive and goal-directed. Second, it can be very specific and concrete, avoiding sloganeering by either side. Third, it provides people with a plan of action.

The judge has given us a great tool with his list. Let’s all learn it thoroughly and start using it to frame our own arguments.

[My list included the use of law to state desired moral principles. Discussing that was out of place in this piece, but soon I will compose an entire screed on the baleful and malicious effects of religion and religiosity on politics, government, and law. BCT]




Sunday, September 20, 2009

What if they had a war...?

What If They Had a War…?

About fifty years ago, our country got involved in a highly unpopular war that incited considerable protest and civil disobedience. One of the slogans of that period was: “What if they had a war and nobody came?”

I was reminded of that slogan when the September 28 issue of Fortune ran a cover story, “How Pot Became Legal”, by Roger Parloff. It’s starting to look like the Government is having a War on Drugs, but no one is coming.

(But, first, a modest little claim of priority. Several months ago, I started spreading the idea that “The people have already legalized marijuana; when will the government catch up?”)

The idea was that, while politicians and generals may declare wars, they depend upon the peoples’ compliance in serving as cannon fodder to fight them. As far as the War on Drugs is concerned, it really looks like the people have become either draft resisters or conscientious objectors.

In the seventy years since the federal government outlawed marijuana, the government’s own estimate of the number of Americans who have used it has grown from 100,000 to over 100,000,000. That’s a lot of people sitting out the War – and they haven’t even had to go to Canada or Sweden.

Even the courts have dropped out. Government officials now proclaim that almost no one (but, unfortunately “almost no one” is not the same as “no one”) goes to jail for a first-time possession of a small amount of marijuana. But, one may ask, if they are not going to put anyone in jail, why were about 800,000 people arrested for marijuana possession last year? Just last year, Massachusetts joined the thirteen states (why does the phrase “thirteen states” resonant with me?) who had acted in the 1970s, and decriminalized the possession of a small amount of marijuana. Some of the police officials and prosecutors screamed that the end of civilization had arrived, but the people just yawned – and lit another joint.

Congress itself is starting to relent. Last week the House of Representatives, in reauthorizing Pell Grants in Aid for college students, voted out the provision barring grants to those convicted of any drug offenses, including marijuana possession. The injustice, which has lasted for ten years, is that students were not barred from receiving grants by other convictions, including those for violent crimes or financial crimes.

The Fortune article claims that California has decriminalized marijuana under the rather transparent fig leaf of authorizing the medical use of the herb. In California, a patient may use marijuana if a physician certifies that, in his medical opinion, use of the drug would be beneficial. Determination both of the existence of a medical condition and of the benefit of marijuana is left to the professional discretion of the doctor. Conditions diagnosed have included headaches, muscular or joint pain, loss of appetite, PMS, insomnia, and even general malaise or disphoria.

If any doctors could use some additional income, consider the numbers. The usual fee for a consultation and issuing of a certificate good for one year is $200. These consultations rarely last longer than ten minutes. A doctor spending an additional thirty minutes a day for 200 days a year would see 600 patients, increasing his income by $120,000 per year.

The federal government has said it will not interfere, and while a few local governments are resisting the opening of dispensaries in their communities, most seem satisfied with the situation. Fortune claims that there are about three times as many marijuana dispensaries in Los Angeles as there are McDonald’s – even more dispensaries than Starbuck’s.

Both Colorado and New Mexico are allowing dispensaries this year, and Rhode Island has passed a law authorizing them. The California model seems to be spreading.

Thirteen states now recognize the medical use of marijuana, and five or six more have bills under consideration. Fourteen states have decriminalized possession. Even allowing for a large overlap between these two groups of states, a substantial part of the American population now lives in a jurisdiction in which marijuana use is legally accepted. Two companies – Oaksterdam University and Cannabis Tech -- now run commercial operations teaching people how to grow and market marijuana.

When I talk to young people, high school and college age, they accept marijuana as a normal part of life even if they don’t use it themselves – and most do not. The law against it rarely enters their consciousness, but when it does, it appears as a minor inconvenience, not a deterrent. A common sentiment is that if a police officer finds them with marijuana, he will just take their stash and send them home. At worst, they think they face a few months easy probation.

I started this piece with a metaphor comparing the War on Drugs to the Vietnamese War, but now I wonder if that was the best choice. Our government finds itself on the losing side in both instances, looking for a way out, but we have been engaged in this war for our entire lives, and opting to sit on the sidelines seems a cowardly choice.

Perhaps a better comparison would be Shaw’s Chocolate Soldier. When forced to war, he threw away his cartridges and filled his ammunition box with chocolates. Maybe we should try to kill the drug warriors with sweetness.

But the best fit may be the major of nursery rhyme fame (Attention, Source Scouts: help me track down this image that remains just out of memory). He’s the one who marched all his men up the hill and then marched them down again.

At any rate, it’s time for the politicians to listen to the people. The war is over. Marijuana is legal. Deal with it.

[Nota bene: Some commentators have asked for my views on the effect of marketing if drugs are legalized and on the role of the U.S. in the international drug trade. It has taken some time to put my thoughts in order and to do a little (ugh!) research, but you can expect to see something on this topics and further parts of my Theory and Practice of Prohibition, interspersed with random brain droppings, in the near future. Let me know if you have other ideas for me to talk about. BCT]

Wednesday, September 16, 2009

Happy Birthday to Us (or U.S.)

Happy Birthday to Us (or U.S.)

Join me tomorrow (September 17) in celebrating our most important national holiday: Constitution Day. The anniversary of the signing of the Constitution is the least celebrated, and probably the least known, of our holidays, but that is where it all began.

Constitution Day has a better claim to being our birthday as a nation than does Independence Day. On the Fourth of July, we proclaimed that we were no longer British. Only after a bitter war and frustration under the Articles of Confederation, did we draft the Constitution that identified us as Americans. On that day, we became one people – one nation – where before we had been the mutually suspicious and quarrelsome citizens of thirteen separate sovereigns eyeing each other warily across borders.

And the Constitution has made us the model to the world. We were the first: now almost every government has a written constitution, must drawing inspiration, if not actual wording, from ours. We have truly shown the way.

But, as Ben Franklin said on that day, we created a Republic, but only we can keep it. Jefferson said that eternal vigilance is the price of liberty.

For several years I have followed the practice of rereading the Constitution as a whole each year at this time. Even after some forty years of practicing and teaching law, I find something new each year. I invite you to join me in this tradition; that’s why I have posted the entire document on this blog. If you have read the document as a whole at any time since high school civics class (if then), raise your hand. Look around – is any hand up? I thought so. Now is a good time to correct that oversight.

Those of us working for drug law reform know that the law must spring from, and be based on sound constitutional principles. Unless we know and love that document, we have no roadmap out of the wilderness.

Happy Constitution Day! Maybe next year we can have birthday cake and fireworks.

U.S. Constitution: Prohibition and Repeal

U. S. Constitution: Prohibition and Repeal

Prohibition of Alcohol


Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.

Section 1.

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

[Note: Proof that even We the People can make mistakes. A mere thirteen years later came Repeal. The total repeal process took less than eleven months. The Repeal Amendment is the only time Congress has specified the use of conventions rather than leaving the process up to the state legislatures. BCT]

Repeal of Prohibition


Passed by Congress February 20, 1933. Ratified December 5, 1933.

Section 1.

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.

The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Tuesday, September 15, 2009

U.S. Constitution: Rights Amendments

Constitution of the United States:
Amendments Affecting Citizenship, Personal Rights and Liberties

Bill of Rights

The Preamble to The Bill of Rights

Congress of the United States

begun and held at the City of New-York, on

Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights."

[Note: The absence of a Bill of Rights was a major source of contention during the Ratification debates on the Constitution and several of the states included a call for one in their ratifications. The First Congress proposed twelve articles as amendments and ten of them, now known as the “Bill of Rights” were ratified. An eleventh one was ratified in 1882 as the XXVIIth amendment. BCT]


Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.


Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.


Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Civil War Amendments

[Note: Slavery was the flaw that the Founders were unable to conceal. From the 1820s through the 1850s, it dominated Federal politics until Civil War broke out. These three Amendments were proposed by Congress at the end of that war, and acceptance of them was a requisite for readmission of the seceding states. BCT]


Passed by Congress January 31, 1865. Ratified December 6, 1865.

Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th amendment.

Section 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.

Congress shall have power to enforce this article by appropriate legislation.



Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.



Passed by Congress February 26, 1869. Ratified February 3, 1870.

Section 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude--

Section 2.

The Congress shall have the power to enforce this article by appropriate legislation.

Other Amendments Affecting Rights and Liberties of Individuals or Rights and Privileges of Citizenship


Passed by Congress June 4, 1919. Ratified August 18, 1920.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.


Passed by Congress June 16, 1960. Ratified March 29, 1961.

Section 1.

The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation


Passed by Congress August 27, 1962. Ratified January 23, 1964.

Section 1.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.


Passed by Congress March 23, 1971. Ratified July 1, 1971.

Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

Section 1.

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

Monday, September 14, 2009

Constitution: Articles IV - VII

The Constitution of the United States:
Articles IV – VII

Article. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Section. 3.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.


Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.


Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.


Article. VII.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

The Word, "the," being interlined between the seventh and eighth Lines of the first Page, the Word "Thirty" being partly written on an Erazure in the fifteenth Line of the first Page, The Words "is tried" being interlined between the thirty second and thirty third Lines of the first Page and the Word "the" being interlined between the forty third and forty fourth Lines of the second Page

[Note: the Signatures – they made it happen. BCT]

Attest William Jackson Secretary

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

G°. Washington

Presidt and deputy from Virginia


Geo: Read

Gunning Bedford jun

John Dickinson

Richard Bassett

Jaco: Broom


James McHenry

Dan of St Thos. Jenifer

Danl. Carroll


John Blair

James Madison Jr.

North Carolina

Wm. Blount

Richd. Dobbs Spaight

Hu Williamson

South Carolina

J. Rutledge

Charles Cotesworth Pinckney

Charles Pinckney

Pierce Butler


William Few

Abr Baldwin

New Hampshire

John Langdon

Nicholas Gilman


Nathaniel Gorham

Rufus King


Wm. Saml. Johnson

Roger Sherman

New York

Alexander Hamilton

New Jersey

Wil: Livingston

David Brearley

Wm. Paterson

Jona: Dayton


B Franklin

Thomas Mifflin

Robt. Morris

Geo. Clymer

Thos. FitzSimons

Jared Ingersoll

James Wilson

Gouv Morris


This was originally a response to a private email, but it looks good enough to share generally:

I'm not sure which of my many blatherings you're referring to, but you may be confusing two different things.

Yes, I'm in favor of self-medication. My cabinet includes, among other things, ibuprophen, aspirin, and two different anti-histamines. If I wanted to run the legal risks, I would have mj available for insomnia, but my position is rather exposed.

On the other hand, I am not competent by training for more sophisticated diagnosis and can't do the blood tests needed for more powerful medication. I'm happy to have both doctors and the FDA handy for my use. But they need not be exclusive.

I am opposed to two things.

The claim that all non-doctor-mediated drug use is self-medication is bogus. A lot of drug use -- alcohol, marijuana, ecstasy, cocaine, 'srooms -- is strictly recreational and social. Some -- mainly caffeine and other uppers -- is work-related like combat aircrews on amphetamines, "go-fast pills". Some is religious -- mj for Rastas and Coptic Zionists, wine for Christains and Jews, psychedelics for self-awareness. Some is simple curiousity.

These claims are just as valid as claims of medical use.

Second, a lot of self-medication is mis-directed and counterproductive. If taken for the wrong disease or disorder they, even mj, may increase the disorder rather than alleviate it. Even marijuana can make some conditions worse.

In short, I would say too things:

1. While everyone should have the right to self-medicate, over the last half-century both medical science and pharmacology have become so complex that only a fool would use self-medication for more than the most simple and routine disorders, and

2. Over-stating the claims that use of marijuana or other street drugs is always self-medication denigrates and denies the legitimacy of uses for recreation, productivity, spirituality, and even experimentation.

There's room for everybody.

Sunday, September 13, 2009

Constitution: Articles II & III

Constitution of the United States: Articles II and III

Article. II.

[Note: creates the President and Vice-President and established their responsibilities, powers, and limitations. BCT]

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

Amendments Primarily Affecting Article II

[Note: Judging strictly by the number of Amendments, this has been the most problematic part of the constitution. BCT]


Passed by Congress December 9, 1803. Ratified June 15, 1804.

Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. --]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.


Passed by Congress March 2, 1932. Ratified January 23, 1933.

Note: Article I, section 4, of the Constitution was modified by section 2 of this amendment. In addition, a portion of the 12th amendment was superseded by section 3.

[Note: Although the National Archives classifies this Amendment as modifying Article I and Amendment XII, I have chosen to place it with Article II, since most of us today organize the political year around the presidential term. BCT]

Section 1.

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5.

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.


Passed by Congress March 21, 1947. Ratified February 27, 1951.

Section 1.

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.


Passed by Congress July 6, 1965. Ratified February 10, 1967.

Note: Article II, section 1, of the Constitution was affected by the 25th amendment.

Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office

Article III.

[Note: Creates the Supreme Court and provides for the Federal judiciary. BCT]
Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted

Amendments Primarily Affecting Article III


Passed by Congress March 4, 1794. Ratified February 7, 1795.

Note: Article III, section 2, of the Constitution was modified by amendment 11.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Saturday, September 12, 2009

The Constitution: Article I

The Constitution of the United States

[Note: My notes will appear in square brackets […] in italics. BCT]

Article. I.

[Note: Article I creates the Congress and defines its powers and limits. BCT]

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 2.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section. 4.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section. 5.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section. 6.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section. 10.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Amendments Affecting Primarily Article I

[Note: The Amendments are traditionally listed in order of ratification after the entire text of the Constitution. I have chosen to place them functionally for easier understanding.]


Passed by Congress July 2, 1909. Ratified February 3, 1913.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.


Passed by Congress May 13, 1912. Ratified April 8, 1913.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.


Originally proposed Sept. 25, 1789. Ratified May 7, 1992.

[Note: This amendment is one of twelve first proposed by Congress as the original ill of Rights. It was not ratified at that time BCT]

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

Friday, September 11, 2009

Prohibition, Theory and Practice, Part II: Ineffectiveness

Prohibition, Theory and Practice, Part II:

Prostitution has been prohibited in most of the United States (all except for a small part of Nevada) for over a century, but prostitutes can be found working in virtually every town and city in the country. In the cities they even work openly and advertise their services. The police have given up trying to suppress the activity and instead limit their efforts to preventing disruptions of neighborhoods, control of sex slavery and underage prostitutes, and providing a flurry of activity when a member of the city council goes on a morality kick.
The Soviet Union tried to keep its citizens from being exposed to Western “propaganda”. It not only prohibited import or possession of European, American, and Japanese video tapes, it also developed a different format for video tapes and mandated that all video recorders and playback devices use only the Soviet format, meaning that they could not show foreign tapes. The result was the creation of not one, but two black markets: one dealing in smuggled foreign VCRs and the second creating and selling pirated copies of Western tapes copied into the Soviet format. The demand for Western information was so great that entire books were circulated through single copies laboriously retyped with multiple carbons.
One of the most perverse results came from the prohibitory import tax the British imposed on French watch works early in the nineteenth century. The goal was to raise the price of French watches so high as to exclude them from the English market, giving English watchmakers a protected market in which to develop their craft and become competitive. The results were disastrous. Far from driving French watches out of the market, the extremely high price made them a desired prestige item when placed in fine jewelry mounts. The English watchmakers did not use their protection to improve their products, but merely raised prices on the same shoddy goods. The French and Swiss were able to achieve economies of scale and improve production methods so that, even with the excessive tax, they could undercut the low-quality English goods. Today Swiss watches are a world standard and English watches are unknown.
Going down the entire list of prohibitions in Part I would only produce a dreary list of similar failures. One example will begin to make the reasons for these failures clear.
By 1820, both Great Britain and the U.S. had embargoed the international slave trade, and all ships carrying slaves between Africa and the Americas (primarily Brazil and Cuba) were subject to capture and forfeiture. Their officers and crew faced criminal sanctions. Even as late as the 1850s, over 25,000 Africans were transported for sale in Cuba each year. A ship solid and fast enough for the trade could be purchased for under $15,000 or leased for even less. Such a ship could buy slaves for $40 – 50 in trade goods and load about 900 of them. Around 750 would survive the trip and be sold for $1,000 – 1,500 each in Havana, totaling over $750,000[1]. Four or five voyages would allow a captain to retire, fixed for life; and backers or ship owners could easily write off the cost of ships captured by the governments. These numbers are similar to, but less extreme than, those of the drug trade today.[2]
Why do all these attempts at prohibition have such untoward outcomes? They are actually a predictable result of the relationship between supply and demand.
Most prohibitions worked as intended by greatly increasing the price of the commodity affected. But they ignore the radically different effect that the change has on sellers and buyers.
These laws impose penalties, often criminal, on sellers and impose greater costs, including making goods harder to find, transport harder, and risk of injury or death greater due to the increased violence of the business. But they also increase the returns to not only compensate for these increased cost, but also to provide profits much greater than would be possible in a legal market. The imposed sanctions also serve as entry barriers to would-be sellers unwilling to bear the risks of sanctions or injuries. Limiting entry is a form of cartelization that segregates rentes to those sellers who decide to participate. As a result, probably fewer outlets sell illegal drugs, for instance, than sell legal ones, but the illegal sellers are protected at profit levels that would entice many new competitors in a licit trade.
While prohibition can provide strong incentives to certain sellers, its effect on the demand side of the market is much less dramatic. Although prohibition can greatly increase the cash price of the good, the cash price is often only a small consideration to the purchaser. Both the value and the cost of a good must be determined subjectively: from the buyer’s viewpoint.
The example of the high price English taxes imposed on French watchworks is instructive. The expense created an incentive to purchasers who could combine the expensive watch with an even more expensive jewelry case as an item of conspicuous consumption, gratifying the bearer. Looking at the extensive history of sumptuary laws – and their failures – shows how strong the impulse for ostentatious display can be. A modern American driving a Ferrari while wearing Armani clothes, a Piaget watch, and thousand-dollar sunglasses with large designer logos is a good example.
The way to determine the value of a good – and therefore the price a purchaser is willing to pay –- is to look at what that purchaser will forego in order to obtain it. The most striking example is the hard-core heroin addict who is willing to eat out of dumpsters and sleep under bridges – giving up food and shelter -- in order to get his daily fix. No price would be too high for him to pay. In terms of the current market for illegal drugs, hard-core and addicted users probably consume around eighty per cent of those drugs and the large majority of users consume the rest. In terms of policy, that vast majority of users has little effect on the market.
The substitution analysis for those casual users is very different from that for the addict. A social marijuana user will probably make purchases of around a quarter of an ounce, which even at today’s astronomical prices, will cost fifty dollars or less. This expense is no more than the cost of two or three alcoholic drinks with a companion or taking a date to a movie with snacks. Shared joints at home with a DVD movie and popcorn is very competitive with that movie date. If the choice is between marijuana and saving for retirement or next summer’s vacation, the value of those savings when reduced to present value is less than that of the marijuana. As far as medical marijuana is concerned, marijuana is both cheaper and more effective than the six hundred dollars a month that legal Marinol (synthetic THC, marijuana’s primary active component) costs.
Prohibition does not stop the market from continuing. It does criminalize the sellers, making them more violent and unscrupulous and increases the money cost to the purchaser, but the sales still continue.
The next installment will start looking at the unintended consequences of prohibition, and after that, we will look at the effects on law enforcement and the justice system.

[1] Data is taken, passim, from Soodhalter, Ron, Hanging Captain Gordon, NY, 2006. Soodhalter estimates $100 in 1850 to be the equivalent of $4,000 today.

[2] I intend to return to this situation in a later installment on unintended consequences of prohibition.

Where it all begins

We the People of the United States,
in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

These few words may be the most important sentence ever written. It was signed and presented to the public on September 17, 1787.

As a result, September 17 is now what I consider to be our most important, if also the least known, of all our holidays. In many ways, September 17, not July 4, is really America's birthday.

I have developed the habit of reading the document anew each September. Even after practicing and teaching law for 40 years, I find something new each time. I strongly recommend the practice.

to help you adopt the same habit, I will post the entire Constitution for your consideration over the next few days.

Keep it strong and it will keep us well.

Monday, September 7, 2009

The Prehistory of Marijuana, Part II: 1800=1900

The Prehistory of Marijuana, Part II:
1800 – 1900

In 1800 Europe and the United States were still living in a world of hemp. In addition to ropes and sails, the American Declaration of Independence and Constitution were both printed on hemp paper, as was all paper money until the 1930s. However, hemp was about to lose its dominance over the world of cannabis.

Napoleon over-extended himself by trying to expand his French empire into Egypt. The British destroyed his fleet at Alexandra and he was unable to fight his way home through the Levant. He sneaked home, leaving the army behind in Egypt. When they straggled home, they brought hashish – the psychoactive resin of the cannabis plant – with them. And with it, they brought the legend of the Assassins.

According to the legend, The Old Man of the Mountain was the ruler of a small citadel high in the mountains of Asia Minor who used hashish to control a band of thugs and murders by dosing them with hashish – hence the name “Hashishins” – to go out and raid and kill on his orders. The story is implausible to anyone familiar with hashish, although it does resonant with the stories a century later of drug fiends high on marijuana. A fuller version of the story discovered later is that the Old Man would dope boys with hashish until they fell asleep. He would then move them to his secret, lush garden, where they would awaken to beauty, bird songs, wine, and beautiful maidens. With the promise of greater rewards in heaven and similar hash-fuelled revels after missions, they would do his bidding. Here, the resonance is with current day jihadists and suicide bombers who carry out their missions with promises of virgins in the afterlife.

At any rate, by 1820, hashish had become the center of several of the most stylish Parisian literary and social salons, and most of the lions of French arts and literature participated. The hashish was usually consumed as an ingredient in confections. This fad did not last long, most Parisians preferring wine or absinthe, with its hallucinatory wormwood extract, but a few persisted in using hashish and some rare hashish houses operated in New York in the decades after the Civil War.

One American devotee wrote a memoir of his experiences, Confessions of a Hashish Eater. The book is, frankly, a rip-off of the earlier and better known Confessions of an Opium Eater, an English work that supported its author through multiple editions for over fifty years. The Hashish Eater did, however, recognize the identity of hashish and cannabis and he tells of his first, early experiments as a college student in a local druggist’s shop. He moved from college to the big city and from cannabis elixirs to hashish confections.

Where did the Hashish Eater get the cannabis he experimented with? In the 1830s, a doctor named O’Shaunessy was serving with the British army in India. Toward the end of the ‘30s he wrote two articles for the British Medical Journal about the use of cannabis in native Indian medicine. This age had already discovered quinine in an indigenous tree-bark remedy and isolated morphine from opium poppies. People were ready to hear about other native cures and soon cannabis preparations were common at druggists on both sides of the Atlantic.

Cannabis’ time in the spotlight was short-lived. The active chemicals are fat-soluble, making alcohol-based elixirs problematic and making dosage irregular, depending largely on the state of the patient’s digestion at the time. (This problem still makes oral preparations of cannabis hard to use.) By the end of the Civil War, injectable morphine was readily available for the treatment of both pain and gastric disorders. In 1913, Congressional investigators working on the proposed Harrison Narcotics Tax Act recommended that cannabis not be included. They found only six or seven cannabis preparations for sale and only two of those were not for external use. The primary use of cannabis was in corn plasters. Although it remained in the U.S. Pharmacopeia until 1942, its medical heyday was long past.

Hemp also ran into hard times. The onslaught of steam ships in the second half of the nineteenth century destroyed hemp’s main market. Cheap methods for making woodpulp paper in continuous rolls for the new steam presses drove hand-laid hemp paper from the market. Hemp also required large amounts of hand labor for production, and effective machines were not developed until the 1930s. When the hemp growers lost the use of slave labor, costs made hemp an uneconomic product. The final blow was when the U.S. acquired the Philippine Islands after the Spanish-American war, and cheap Philippine sisal replaced expensive American hemp.

By 1900 cannabis had almost disappeared from the U.S., but a rebirth was waiting in Mexico. As a small child in West Texas, I learned the innocent little folk song, “La Cucaracha”. But I was an adult before I learned that the verse
La cucaracha, la cucaracha,
ya no puede caminar
porque no tiene, porque le falta
marihuana pa' fumar.
Translated into English as “The cockroach cannot walk/ because he has no/marijuana to smoke”.
How marijuana got to Mexico is a mystery. The primary theory is that it came with salves from sub-Saharan Africa who had used it at home. The main problem with this theory is that the slaves were stripped totally naked before being loaded on ships and were not allowed to bring any possessions. My hypothesis looks instead to North Africa. Many sailors on both Portuguese and Spanish ships were from North Africa – Columbus’ first voyage carried several. Hashish was common in both Morocco and Algeria, and those sailors could have carried their private stashes, including seeds.
In either case, whether cannabis came up the coast from Brazil or into the Caribbean and Mexico from North Africa, Mexico is where their traditional method of using tobacco – smoking – was applied to cannabis and it was given the new name “marijuana”.
From Mexico, as recounted in the earlier piece “End of an Era…?”, smoked marijuana entered the U.S. through the two gateways of Southwestern agricultural labor and the docks of New Orleans. The rest, as they say, is history.

Friday, September 4, 2009

Prehistory of Marijuana (Part 1)

The Prehistory of Marijuana (Part I)

I recently wrote about what I called “the dark ages” of marijuana history from about 1900 until 1970 and the Foundation Myth [1], pointing out how sketchy the record is. Now I want to look at the earlier period, before 1900, where hard facts are almost non-existent. The record is so sparse, especially before about 1820, that I call it marijuana’s prehistory. Searching this era calls less for the skills of the historian and more for those of the anthropologist, ethnologist, or even the archeologist.

One of the surprising features of this story is that, before about 1900, the tale of marijuana looks more like the story of four separate plants instead of one about four uses of one plant. Hemp (fiber), hashish (cannabis resin as intoxicant), cannabis (medicine), and marijuana (smoked cannabis) came into Western life through separate routes and before at least 1850 no one seems to recognize these to be different uses or cultivars of the same plant.

Cannabis seems to be a native of the steppes of Central Asia, from which it spread in both directions. It was used medicinally, religiously, and recreationally in both China and the Indian Subcontinent as early as the middle of the second millennium BCE. But the first mention in the West came in 430 BCE, when Herodotus described the Scythians (a nomadic horse people of the Steppes) inhaling the fumes from hemp seeds burned on braziers inside tents. I have found no other reference to hemp or cannabis as a medicine or intoxicant in European literature until the middle of the seventeenth century CE.

Islam exploded out of Arabia and spread from Western China through West Asia and North Africa to the Iberian Peninsula in the seventh and eighth centuries CE. Islam forbade the use of alcohol, so cannabis became the intoxicant of choice through most of this territory. Islamic rulers remained in Iberia until the end of the fifteenth century and used North African Berbers as their military force for most of this time, but no record of cannabis in Iberia exists. It seems to have stayed in Africa.

From the last days of the Roman Empire until the middle of the nineteenth century hemp was the face of cannabis known in the European world. Wind-driven ships were the engine of both commerce and war during this period, and hemp drove these ships. They were rigged with hemp ropes and hemp sailcloth; and a single ship would have miles of rope and acres of sails. The word “cannabis” comes from the Dutch word for canvas. This hemp was so important that, in the reign of Elizabeth I, England started requiring all farmers to grow hemp, and that law extended to the North American colonies. At least three American presidents – Washington,
Jefferson, and Madison grew hemp commercially.

Some extrapolate from these facts and argue that these men also used cannabis as an intoxicant, but that use is unlikely. Modern hemp variants of cannabis are so low in psychoactive cannabinoids that they cannot be used as intoxicants. One expert has claimed that it would take a hemp cigarette as large as a telephone pole to get one high. Our ancestors, while not modern geneticists, were excellent farmers. With well over a thousand years of experimentation, they would have developed strains of cannabis favoring fiber over cannabinoids, just as they had already developed maize and wheat from unpromising grasses; and historical hemp (the precursor of modern hemp plants) would have had its psychoactivity bred out of it hundreds of years ago.

This assertion is supported by strong negative evidence. I have found only two European references to the medical or intoxicating effects of cannabis before 1800.
Richard Burton, in his Anatomy of Melancholy (1638, originally in Latin), makes passing reference to the beneficial effect of hemp on his melancholy, but his language is so indirect and metaphorical and the reference is so casual that explication of what he means is practically impossible. Identification of his drug with the fiber hemp plant is at best problematic. Most important is that none of his contemporaries identified his hemp with the fiber plant.
Robert Hooke, in his diaries for 1689, makes two mentions of a sea captain held captive in Ceylon for twenty years who talked about the Indian use of a hemp-like herb and seed called “Gange” in Portugese and “Banga” in Chinese[2]. Hooke reported those conversations to the Royal Society that December, but then the subject drops from the record. Hooke, the first secretary of the Royal Society, carried on an extensive correspondence with all of the leading scientists and medical scholars in Europe and England. He was also an infamous hypochondriac and delighted on dosing himself with all kinds of medicine. If anyone in Europe had suspected any relationship between Gange and European hemp, Hooke almost certainly would have at least tried it, and probably, conducted serious experiments. Here the silence of the record screams that no one recognized the identity of the two plants.

The only sustainable conclusion is that the use of cannabis as an intoxicant traveled no further west than the Scythians, and from 430 BCE until after 1800 CE, Europe had to do with alcohol, opium, and tobacco as intoxicants.

After 1800, Napoleon’s army returned from Egypt bearing hashish to Paris and Dr. O’Shaunessy informed the British medical society about the medical use of cannabis in India. Our story will continue with those tales.

[1] See “End of an Era…?”, August 15, 2009
[2] Hooke, while one of the prominent scientific writers of his age, was notoriously lax with the language in his diary. The actual text paraphrased here was “the intoxicating herb & seed like hemp by the moors called Gange is in Portuguese Banga; in Chingales.”