The Anti-Marijuana Lobby

What follows is a guest blog post written by Marty Nader, a political science PhD candidate at the University of Nebraska-Lincoln; he specializes in campaigns, elections, political communication and public policy.

 I would put Ed Gogek’s New York Times op-ed  regarding the successful marijuana  legalization initiatives in Colorado and  Washington in the same category as  drug czar Gil Kerlikowske’s recent and  disappointing response to popular  legalization petitions: Full of long  discredited factoids and old school  prohibition apologetics. Both Gogek and  Kerlikowske are simply regurgitating  talking points from the DARE programs of the 1980s and 1990s without addressing any of the 21st century concerns of the contemporary marijuana debate (e.g., prison overcrowding, a clogged judicial system, the racial dimensions of drug arrests and convictions, drug war spending, failure of the drug war to accomplish any of its objectives, success of medical marijuana programs and decriminalization policies in the United States and abroad, and more).

I wholeheartedly disagree with Gogek that the Democratic Party should be cautious about being the “party of pot.” If the Democrats learn anything from the state legalization initiatives, it should be that Democratic voters are overwhelmingly on one side of this issue, that more states are bound to legalize, regulate and tax recreational marijuana, and that Amendment 80 received more votes in Colorado than did Barack Obama, illustrating a rare example of bipartisan support for policy reform. Democrats should be proactive in taking the reins on this issue both at the state and national levels. Support for marijuana legalization will continue to increase as the electorate begins to look younger and less white. Neither party can afford to pass on this issue for much longer.

In fact, I wouldn’t be surprised if in the next ten years Republicans began making calls for marijuana legalization, particularly at the state-level by using the libertarian frame of this issue: wasteful government spending and unnecessary government intrusions into private behaviors.

I understand that Congress, the DEA, the Department of Justice and the entire drug war establishment are reluctant to admit that for 40 years they have been sending people to prison for something that is now legal in two states, but that’s not a sufficient argument to support the continuing prohibition. That is, however, all I hear coming from prohibition advocates: keep doing what we’re doing and eventually it will work … maybe.

Dr. Gogek mentions that “every addiction medicine society” claims that marijuana is highly addictive. So does every law enforcement and prison organization. The vast majority of medical associations, however, argue that marijuana is no more addictive than coffee, chocolate or Diet Coke. If vaporized or eaten (as opposed to being smoked), marijuana has virtually no negative health effects whatsoever (the psychoactive ingredient THC is not harmful, but inhaling the smoke from a burning plant is). The negative public health effects of marijuana that opponents love to mention come from its prohibition, lucrative black market value and associated violence; not its biochemical composition.

As an addiction specialist over the age of 50, Dr. Gogek has a vested occupational and economic interest in keeping marijuana a Schedule I substance. The court system sends him marijuana users as patients for addiction therapy, and users are happy to take addiction therapy in place of jail time. I know several people who have been coerced into such therapy. They have to admit that they have an addiction, a problem, they must submit to a higher power, attend meetings, attend sessions, and so on. Every marijuana user I know who has gone through such programs has come out with a much better understanding of how marijuana is nothing like other addictive substances, including alcohol.

Gogek also refers to the “phony science” behind medical marijuana in his op-ed. This is a true sign of any drug warrior. It isn’t phony science; it may be controversial, it may conflict with your preexisting understanding of medication, but there is nothing pseudo-scientific about it. Universities around the country and around the world are conducting medical marijuana research; some of it even being funded hypocritically by the federal government.

Marijuana is a preferred treatment for cancer patients dealing with nausea from chemotherapy and radiation because the pharmaceutical alternatives have too many adverse side effects. Aside from these conditions, there are only a few diseases and ailments that marijuana uniquely treats. While I do support medical marijuana laws out of compassion for the truly sick, I don’t think marijuana should be legalized for its medicinal purposes only. It should be legalized for adults who want to responsibly use it recreationally … just like we allow for alcohol and coffee. Medicinal access should be a by-product of general legalization; recreational access should not be attained through loopholes in medical marijuana programs.

Gogek also tries to equate marijuana use with the domestic violence associated with alcohol, crack/cocaine, and prescription drug abuse. In fact, many (if not most) women’s advocacy organizations support marijuana legalization because marijuana use is not associated with domestic violence. Worst case scenario, marijuana legalization leads to increased laziness and couch-potatoism; not the violent and abusive behavior associated with alcoholism. Tying marijuana with the damage and destruction of more dangerous drugs has been and continues to be a common ploy used by prohibition advocates.

In reference to Gogek’s concerns about young marijuana users performing poorly in school: Are under-performing students more likely to seek out marijuana, or does marijuana make students perform worse? I don’t know the answer. Anecdotally, I would guess that it depends on the person. Some people can have a few drinks each week and not have their life negatively impacted; some lack the ability to control their drinking and therefore face the consequences. It’s likely the same with marijuana. I agree with Gogek that marijuana, like alcohol, should not be available to people under 18. But as long as marijuana remains illegal, young people will continue to purchase marijuana from dealers who do not check IDs. Currently, marijuana is much easier to acquire than alcohol for minors. Regulating it like alcohol will make it harder, though still not impossible, for young people to purchase.

Finally, drug courts, contrary to what Dr. Gogek says, are not a successful program. Not at all. They are designed to streamline the drug prosecution process to free up the court system for non-drug cases. The problem is that there are too many drug arrests for the drug courts to handle (~800,000/year). State and federal courts continue to be overburdened with victimless possession and cultivation offenses. Drug courts also overwhelmingly sentence people to addiction treatment for small possession offenses. While this does slightly mitigate the over-incarceration problem, it also creates a complex wherein people like Ed Gogek become dependent on and encourage the continuance of the War on Drugs.

Simply put, Dr. Gogek is a devotee to and beneficiary of marijuana prohibition. He and others like him refuse to see the changing tides on this issue. He clings to half-truths and drug war talking points that have fallen on deaf ears. I support his work in treating patients with real addictions to seriously destructive drugs, but I sincerely disagree with his position on the perils of marijuana legalization. If legalized, people who feel as though they are addicted to marijuana can still seek out treatment (a la alcoholism), instead of being forced through court orders to “voluntarily” submit themselves for addiction treatment.

Will the repeal of marijuana prohibition go off without a hiccup? I expect not. The prohibition of alcohol and its repeal required adjustment periods. It’s a good bet that the same will happen with marijuana. I’m just glad the ball is rolling and the era of marijuana prohibition is seeing its last years.

When Is A Conservative A Liberal?

What follows is a guest blog post by my old friend and former colleague, Howard L. Lubert, a professor of political science at James Madison University. Lubert is co-author of the two-volume anthology, Classics of American Political and Constitutional Thought, along with articles on Jonathan Mayhew, Benjamin Franklin, and William Blackstone. 

 Debates over the U.S. Constitution  are raging today. (Indeed, they’ve  been raging for years; the heated  rhetoric can be traced back at least  to the early 1980s — Ed Meese, the  birth of the Federalist Society and  all that). What is a constitution?   How can and should political  authority be limited? How can  fundamental rights be best  secured constitutionally? Is power, or sovereignty, necessarily unlimited; and if so, are there ways to effectually contain it? Can judges be empowered to protect individual liberties from government encroachment? Or must the protection of those liberties rely on a balance (that is, a separation) of institutional powers?

These questions are not new. They dominated constitutional conversations during the Revolutionary and Founding eras (ca. 1765-1788). At the center of those debates stood William Blackstone, a member of Parliament and author of the seminal, four-volume classic, Commentaries on the Laws of England. Blackstone saw the first volume reach print in 1765, the year that Parliament enacted the Stamp Act, a law that sparked the ten-year imperial crisis that would result in the American colonies’ declaration of independence in 1776.

Blackstone’s influence is difficult to overstate. Between 1760 and 1805, American political writers cited only Montesquieu more often (Hamilton, for example, refers to him at least twice in The Federalist Papers). His Commentaries were essential in the training of lawyers. As Mary Ann Glendon and Gordon Wood have pointed out, his work was frequently embraced not simply for its comprehensive treatment of the common law, but also because of its seeming endorsement of the right to resist tyranny.

And yet, his work was controversial. Leading political and legal thinkers, like Thomas Jefferson and James Wilson, reviled the man and his work. Jefferson claimed that Blackstone had done more than Napoleon Bonaparte to suppress the rights of man. Wilson equated Blackstone with Thomas Hobbes and claimed that Blackstone, like Hobbes, argued for an absolutist state.

Scholars likewise disagree over how to read Blackstone. Was he an absolutist who denied the existence of any law that can serve to limit man-made law? Or was he a Whig who, despite apparent claims to the contrary, upheld the fundamental liberal principles, including the right of revolution? There are, of course, additional viewpoints.

The ongoing debate over Blackstone’s constitutionalism led me to write the article linked here [gated]. I argue that Blackstone’s work, particularly his strong emphasis of parliamentary sovereignty, makes sense only when read in context; more specifically, Blackstone is the strongest advocate for parliamentary power precisely because, in tracing out the historical development of the British constitution, he concludes that royal assaults on liberty have been successfully thwarted - and can be successfully thwarted - only by the legislative power.

Deductions and Tax Rates

What follows is a guest blog post by my old friend and fellow Michigan State University alum, Marcus Sanborn. He is a construction lawyer in Michigan.

 The Romney plan has always  been a 20% reduction in tax  rates (perhaps the only  consistent position he has  taken), which he has claimed  would be paid for by the  reduction or elimination of  unspecified deductions. The  fact that this is not  mathematically possible has  been beaten to death. What has  not is the reason that the rich  in general and Romney in particular would want to change the tax scheme to lower rates and lower deductions. After all, if this is a revenue neutral move, then why bother?

The answer is pretty simple: to rich people, tax rates are much more important than deductions, whereas, to the poor and middle class, deductions are much more important than rates. The data make this clear.

The below chart uses data supplied in a Forbes article from 2011 and uses tax data from 2008, but more recent data should not change the general trend.

Another important point is that the above deductions only consider the deductions for: (1) paying other taxes (state, local, property), (2) the mortgage interest deduction, and (3) the charity deduction. That means it excludes all other deductions including deductions for dependents. These deductions are much more important for the poor and middle class on a percentage basis. So, the inclusion of these deductions would only further prove the point I am making, that the rich would benefit more from a rate cut and the poor and middle class would benefit more from keeping their deductions.

As can easily be seen from the above data, deductions are more important than an across-the-board 20% tax cut until you get to somewhere between $100,000 and $200,00 year in income. After that, you would much rather have a 20% rate cut. Adding in the other deductions and tax credits and this number would be well below $100,000.

Of course, my above comparison, crude as it may be, assumes that all deductions are cut, and Romney has proposed a cap on deductions of $25,000. This deduction cap would not even make up for a fifth of his tax cut. Nonetheless, assuming that was the cap, it would have the effect of hurting the middle class, while benefiting the rich and poor.

The poor generally do not have enough deductions to implicate the cap, so they would just benefit from the rate cut, to the extent they are paying any taxes at all. On the other end of the spectrum, a family making $1,000,000 per year might lose the benefit of a little more than $100,000 in deductions using the above data, but that loss would be more than outweighed by the reduction in the tax rate. For the middle class, however, the story is different.

The middle class would feel the pinch from a deductions cap as the above data makes clear, especially when you factor in an additional $10,000 or so in deductions that would come along with two children. This substantial loss of deductions, on a percentage basis, would not be offset by the 20% rate cut. How large of a slice of the middle class would receive a net tax increase depends on how high you set the cap. The lower the cap, the more middle class families would be pinched by a rate reduction coupled with a deduction cap.

If, as Romney claims, you wanted to make your rate reduction revenue neutral, you would need to set the cap so low (probably less than $10,000) that everyone except the very poor and the rich would see their taxes go up. A rate reduction coupled with a deduction cap is so effective at targeting the middle class for a tax increase that it almost makes you wonder if that was Romney’s plan from the start.

Heroism and Unwavering Opinions

What follows is a guest blog post, written by Matt Langdon, my co-host on the weekly Hero Report podcast. Matt teaches kids to be heroes with the Hero Construction Company.

 There are some topics that people’s  opinions simply won’t budge on.  Religion, abortion, war, which Star Trek  series was the best. You know these  topics because the media uses them  every day. The very fact that people  refuse to discuss these topics is what  makes them “great” television. The  topics translate into bumper stickers  that turn complex subjects into tag  lines. “This is my bumper sticker. You’re either with me or against me.” This weekend, Chris Hayes found out that labeling all soldiers as heroes is one of those topics.

I’d love to know if Hayes planned his discussion on the heroism of soldiers. Was that nervousness in his voice because he knew the road he was about to take or was it because he’d just slipped down the slope and realized what he was falling into? Either way, his rambling entry into this minefield made him an easy target. My daily email for the Google Alert on the term “hero” was filled with responses from the usual political point-chasing pundits. Hayes wasn’t criticizing soldiers. He was calling attention to the reasons that they’re all called heroes by politicians and the media. The mere hint that he might think that not all soldiers are heroes was enough to set off the hounds.

People’s definition of “hero” tends to be unshakeable. Chris Hayes wanted to discuss how we use that word — and he’s not alone. There are numerous people trying to have a public conversation on heroism, including Zeno Franco, Phil Zimbardo, and Ari Kohen and me on the Hero Report. I saw the unshakeable problem early on. It’s why I chose to teach heroism to kids rather than adults. Kids are willing to change their opinions and are willing to ask questions. I want kids to disagree with me. I ask them to question authority figures — always an uncomfortable moment with a teacher in the room.

However, too often kids are raised as miniature versions of their parents. That’s why four years ago at this time, a kindergarten teacher told me her students were chanting, “We want Bush, we want Bush.” Kindergarten kids should not have opinions on the presidential race, yet they did. They had unwavering opinions. It’s why New York City public schools decided to eliminate controversial words from their tests — words like dinosaur, pepperoni, and birthday. Kids shouldn’t find those words controversial. Adults shouldn’t find those words controversial, but again, there’s not much we can do about adults. It’s why a character education speaker was kicked out of a school because she said that war was a sad thing to a classroom of kids.

The opinions of the parents shape the school. Schools are in danger of becoming places where argument, discussion, and conversation are not welcome. This has to be fought tooth and nail. Without the ability to explore concepts and politely disagree our kids will turn into adults who make civilization unworkable. And we really need civilization to keep working.

Hypocrisy or Heuristics?

What follows is a guest blog post, written by Carly M. Jacobs, a Ph.D. student in Political Science at the University of Nebraska-Lincoln. Her research interests include group identity, political psychology, biology and politics, and political behavior.

 Accusations of hypocrisy are standard  ammunition for liberals and conservatives  alike. After all, what could be more  damning than pointing out that support  for any particular policy hinges solely on  the partisan affiliation of the sitting  president? From a purely political  standpoint, this sort of changeability can  be maddening and more than a bit  disheartening, as expressed by Greenwald  and Kohen. But, if we take a step back and  look at the situation in the context of  basic human predispositions, I would argue that this irksome hypocrisy is simply a byproduct of ordinary psychology.

 In an ideal world, progressives, for example, would be able to look at the policies of the Obama administration, evaluate their content, recognize that those policies are incongruent with their preferences (just like they were when implemented by George W. Bush), and oppose them accordingly. More generally, humans would be what social scientists call “Bayesian updaters,” adjusting our attitudes and beliefs in accordance with the credibility of each piece of incoming information. As usual, however, the reality falls far short of normative perfection. Our brains simply don’t work that way.

A considerable body of research in both psychology and political science supports the notion that we are not neutral receivers of information. Our standing attitudes and predispositions exert a considerable amount of influence on how we grapple with and process input from the political environment. For example, political scientists are now finding compelling evidence that factors as fundamental as our genetics and physiology (e.g. non-conscious bodily reactions to environmental stimuli) produce marked variation in the way we encounter, and interact with, the world.[1] At a base level, we find that conservatives tend to be more attentive and responsive to things that have aversive or negative content while liberals tend to focus on more appetitive or positive stimuli.[2] These tendencies underlie the consistent ideological differences in political attitudes and preferences we see and may explain why those differences often seem irreconcilable.

Looking at the discussion between Kohen and Greenwald, it appears to be an example of cognitive information-processing issues examined thoroughly by Taber and Lodge, among other political psychologists: confirmation and disconfirmation biases.[3] When confronted with information that matches up with our pre-existing attitudes and beliefs, we accept it without much extra thought or criticism. When we encounter information that is incongruent, however, we spend a good deal more time and effort arguing against it or may reject it out-of-hand. We also know that source matters a great deal—who or where the information is coming from serves as a cue for whether we should to accept, reject, or spend time thinking about what it is that they’re saying, regardless of the actual content.[4],[5]

Roll these biases together and you come up with something that may look a lot like hypocrisy. Progressives receive a lot of ideologically congruent information from the Obama administration and are therefore inclined to give it an easy pass right out of the gate. They are also likely to view the administration as a reliable source of accurate information and are far more likely to give Obama the benefit of the doubt than his predecessor, even if the information coming in is the same.

Importantly, vulnerability to this uneven treatment of information is widespread—it is not exclusive to liberals or conservatives. As such, it is absolutely unsurprising to see finger-pointing, on both sides of the ideological spectrum, at inconsistencies akin to the ones Greenwald discusses.

Ultimately, whether we’re dealing with hypocrisy or heuristic, the larger concern we have to contend with is the effect of this widespread information-processing bias on our democratic processes. It undoubtedly has some fairly profound implications. We already have evidence that people reliably seek out news and information from sources that align with their personal political beliefs, rejecting information from sources they perceive to be ideologically opposed to their point of view. Taber and Lodge find a connection between these biases and political polarization.[6] A promising new research endeavor by Wagner, Theiss-Morse, and Mitchell focuses on the fact that our political discourse has far exceeded disagreement and escalated to the full-fledged vilification of the “other side.”[7]

Kohen is right on the money when he notes that we’re dealing with “ordinary Americans who are faced with unfolding events and who are balancing some things they believe against other things they believe, sometimes more and sometimes less successfully.” Perhaps this is wishful thinking but, if we can be aware that what looks like “repulsive hypocrisy” is actually built into human nature, we can approach political disagreements with a bit more perspective and recognize when our own positions are more a product of basic brain behavior than critical thinking.

Circumcision Bans, Religious Freedom, and State RFRAs

What follows is a guest blog post, written by my wife Sara Lunsford Kohen. Sara received her J.D. with highest honors from the University of Nebraska College of Law in 2011 and her B.A., summa cum laude, in political science and Spanish from James Madison University in 2007. She is the author of an article about the religious liberty provision of the Nebraska state constitution and is currently working on an article about the applicability of the Federal Religious Freedom Restoration Act to suits between private parties.

Much has been said recently about the proposed circumcision bans in San Francisco and Santa Monica.  Both Judaism and Islam require circumcising boys, and so it is not surprising that many people are outraged by the proposed bans. What may surprise some, however, is how little legal protection this core religious requirement may get.  This is surprising because Americans tend to cherish the idea of religious liberty, at least in the abstract. After all, many of the first European settlers arrived on our shores fleeing religious persecution.  Later, the framers of the Constitution provided that Congress “shall make no law respecting the establishment of religion or prohibiting the free exercise thereof…”[1]  Scholars have advanced a variety of arguments for why we ought to protect religious freedom, but one of the most relevant here is that, for many, religious beliefs and practices are not mere preferences.  Rather, they are central to how many people think and act.  Thus, a person whose religious practice has been outlawed faces an impossible choice: to act in accordance with his or her beliefs and face criminal penalties, or violate these beliefs in order to conform his or her behavior to the law.  Faced with this choice, unpopular religious groups have often been forced to leave their homes to avoid persecution.

The U.S. Supreme Court for many years recognized this problem and so required granting religious exemptions from laws that imposed substantial burdens on religious practice unless not granting the exemption was the least restrictive, effective means of furthering a compelling governmental interest.[2]  This test both recognized the importance of religious freedom and acknowledged that this freedom must sometimes give way to the public’s interest in enforcing the laws.  However, the Supreme Court abandoned this test in 1990 in Employment Division, Department of Human Resources v. Smith, instead holding that the First Amendment’s Free Exercise Clause does not require granting exemptions from neutral, generally applicable laws—those that do not target religious conduct and cover non-religious conduct to the same extent as religious conduct.[3]  Although Congress, appalled by this holding, passed the Religious Freedom Restoration Act (the “federal RFRA”), which restores the compelling interest test for federal laws that burden religious exercise, Congress does not have the power to bind state governments in this way.[4]  Therefore, the Federal Free Exercise Clause provides little protection against state and local governmental action: few lawmakers would be so foolish as to pass a law that, on its face, discriminated against a particular religious group.  Far more common—and dangerous—are laws such as the proposed circumcision bans that are facially neutral toward religion but that nonetheless severely burden individuals’ religious liberty.

This does not necessarily mean that the Jews and Muslims of San Francisco and Santa Monica would lose a challenge to the bans if they pass.  The Supreme Court has looked past a law’s facial neutrality before, finding that an ordinance banning religious animal sacrifice targeted members of the Santeria religion, and therefore required applying the compelling interest test.[5]  In that case, the anti-Santeria intent was obvious, both because of the ordinance’s legislative history and from the fact that the law allowed virtually all other animal killings.[6]  Similarly, if the circumcision bans pass, the Court might be willing to look past their facial neutrality and find an intent to drive Jews and Muslims out of San Francisco and Santa Monica.  This inference is supported by the “Foreskin Man” comic book, an anti-Semitic work created by Matthew Hess, who drafted the prototype for the San Francisco ordinance.  More evidence of discriminatory intent would likely be required, however.  If the Court found such an intent, it would apply the compelling interest test and likely find that the ordinances violate the Free Exercise Clause.[7]  It is also possible, however, that the Court would conclude that the bans are neutral and generally applicable, and therefore valid under the Federal Free Exercise Clause.

Fortunately, the inquiry does not end here: the California constitution protects religious freedom, independently of any federal protection.[8]  However, the California Supreme Court has not yet decided what test its constitutional provision requires: the less-protective Smith test or the compelling interest test.[9]  Some state supreme courts, such as in my home state of Nebraska, have held that the state constitutional protections of religion provide no more protection than the Federal First Amendment.[10]  In the meantime, Jewish and Muslim residents in San Francisco and Santa Monica must wonder whether they will be forced to travel elsewhere in order to practice their religion.  Fourteen states have dealt with similar problems by passing state religious freedom restoration acts (“state RFRAs”), which require the compelling interest test for state laws that substantially burden religious freedom.[11]  California does not have a state RFRA: the legislature passed one in 1998, but the governor vetoed it.[12]

 The proposed circumcision bans illustrate the need for more state RFRAs.  They are essential because they provide a legal recourse to people whose religious practices are forbidden by state law.  By requiring the compelling interest test, state RFRAs properly balance individuals’ and groups’ interests in religious freedom with the federal government’s interest in forbidding religious exemptions from neutral, generally applicable laws.  Without them, religious freedom in many states is left to the whim of the majority, a result contrary to the purpose of protecting religious freedom in the first place.  

[1]  U.S. Const., amend. I.

[2]   See Sherbert v. Verner, 374 U.S. 398 (1963)

[3]  Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872 (1990).  The compelling interest test still applies to non-neutral, non-generally applicable laws.  See Smith, 494 U.S. 872.

[4]  See 42 U.S.C. §§ 2000bb–2000bb-4.  Though the original version of the law also applied to state law, but the Supreme Court declared that this violated Congress’s Fourteenth Amendment power to make laws ensuring due process and equal protection of the laws.  City of Boerne v. Flores, 521 U.S. 507 (1997). 

[5]  See Lukumi, 508 U.S. 520. 

[6]  See id.

[7]  Alternatively, another exception to the Smith test might apply because the case would involve both free exercise and parental rights.

[8]  See Cal. Const. art. 1, § 4.

[9]  See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal.4th 527, 562 (Cal. 2004).

[10]  See In re Interest of Anaya, 276 Neb. 825, 758 N.W. 2d 10 (2008).  For an in-depth treatment of this case, see my article, The Erosion of Nebraska’s Free Exercise Protection: In re Interest of Anaya, 276 Neb. 825, 758 N.W. 2d 10 (2008), 89 Neb. L. Rev. 159 (2010).

[11]  See Ala. Const. art I, § 3.01; Ariz. Rev. Stat. Ann. § 41-1493.01 (West 2004); Conn. Gen. Stat. Ann. § 52-571b (West 2005); Fla. Stat. Ann. § 761.01 to 761.05 (West 2010); Idaho Code Ann. §§ 73-401 to 73-404 (Lexis Supp. 2005); 775 Ill. Comp. Stat. Ann. 35/1 to 35/99 (West 2001); Mo. Ann. Stat. Ann. §§ 1.302 & 1.307 (West Supp. 2011); N.M. Stat. Ann. §§ 28-22-1 to 28-22-5 (2000); 51 Okla. Stat. Ann. §§ 251 to 258 (West 2008) ; 71 Pa. Stat. Ann. §§ 2401–07 (West Supp. 2010); R.I. Gen. Laws §§ 42-80.1-1 to 42-80.1-4 (1998); S.C. Code Ann. §§ 1-32-10 to 1-32-60 (West 2005); Tex. Civ. Prac. & Rem. Code Ann. §§ 110.001 to 110.012 (West 2005); Va. Code Ann. § 57-2.02 (LexisNexis 2003); Utah Code Ann. §§ 63L-5-101 to 63L-5-403 (LexisNexis 2004).

[12]  See A.B. 1617 (1998), available at http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_1617&sess=9798&house=B&author=baca.

Fallout from Tuscon

What follows is a guest blog post, written by a former student of mine Daniel Son. Daniel graduated from James Madison University and now works on Capitol Hill.

The events of this past weekend in Tuscon, Arizona were a national tragedy. The shooting, injury, and death that occurred were truly sad. But in the wake of those horrific events, any response should be measured. There have been myriad discussions on Capitol Hill about the proper response - from more restrictive gun control laws to more restricted access to Members themselves.

I would submit that the proper response is … nothing.

I’m not so sure that the incident from this past weekend reveals any sort of lack in either the laws regulating the commerce of firearms or in the security of Members of Congress. Of course, I could be wrong. But this is my take: the very nature of the job of Members of Congress is that they are accessible and available to those they are elected by and for. Representatives are given an awesome responsibility to write the laws that govern our great country, but they are also tasked with serving as their constituents’ advocate in the halls of power. It is incumbent upon them, therefore, to be regularly accessible and in contact with their constituents.

Next, when there are individuals who wish to inflict pain upon their fellow citizens for whatever reason (or no reason at all), a more restrictive gun control regime will not stop them. As the saying goes, where there’s a will, there’s a way. Why would more laws deter an individual bent on breaking the most fundamental laws (e.g., do not murder)? In all likelihood, more legislation would only encumber those law-abiding citizens interested in maintaining a civil society while exercising their Constitutional freedom.

It is true that our nation has always wrestled with itself on the line between freedom and security. When one expands, generally the other contracts. Obviously there are complexities and nuances to any policy discourse but as a general statement, I don’t believe you can enact a policy fix for depravity. Government is, after all, downstream from culture (and just about everything else).

Taking Liberties With Madison

What follows is a guest blog post, written by my good friend Howard Lubert. Howard and I both received our PhDs from Duke University, though we didn’t actually meet until he interviewed (and subsequently hired) me at James Madison University in 2004. A lover of fine cigars from island nations with whom the U.S. has controversial trade relations and spirituous beverages from Scotland, Howard is Associate Professor of Political Science at JMU and author of several excellent publications on early American political thought.

In a syndicated November 3^rd op-ed, Walter Williams suggests that the American Civil War was primarily a battle over states’ rights, and he charges President Lincoln with unlawfully preventing Southern states from seceding from the Union. To document his claim, Professor Williams makes the following assertion:

At the 1787 Constitutional Convention, James Madison rejected a proposal that would allow the federal government to suppress a seceding state. He said, ‘A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.’

I’d like to discuss this passage and Professor Williams’ use of the quote, because it suggests either careless scholarship or outright dishonesty on his part.

If you read James Madison’s notes from the 1787 Federal Convention (which is where Professor Williams retrieved his quote), you’ll find that Madison was not discussing secession at all. Rather, he was discussing a proposed change to the Articles of Confederation, which were at the time our nation’s ruling constitution. That proposal — specifically, resolution 6 in the Virginia Plan — reads as follows:

that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which  the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union [against] any member of the Union failing to fulfill its duty under the articles thereof.

The proposal reflected the widely-held belief, founded on years of experience under the Articles of Confederation, that state governments had willfully neglected their constitutional obligations and had encroached on powers granted by the Articles to the national government. The results, including a bankrupt treasury and a near-default on international loans, were potentially disastrous for the new nation.

The question, then, was this: how could the states be made to comply with federal law? In 1781, while serving in Congress, Madison wrote to Thomas Jefferson and suggested that the national government use naval blockades as a way to compel states to fulfill their federal obligations. Ultimately, however, he (and others) came to reject this mode of enforcement. As George Mason noted at the Convention (on May 30), “the present confederation was not only deficient in not providing for coercion & punishment [against] delinquent States; but [he] argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Govt. was necessary as could directly operate on individuals, and would punish those only whose guilt required it.” Madison agreed, as did Edmund Randolph, Alexander Hamilton, and others. In fact, Hamilton would soon write two Federalist essays — nos. 15 & 16 — on this topic precisely.

In short, the debate to which Professor Williams refers was not a debate over secession at all, but rather a debate over how states might be made to comply with their constitutional obligations and to respect the powers constitutionally-granted to the central government. What the Constitution’s framers discovered was that the new Constitution had to be based on a new principle; namely, that the general government would have the authority to enforce national law on individual citizens directly.

This change marked a significant departure from the Articles of Confederation and reflected the delegates’ willingness to grant the central government considerably more power, a willingness that is certainly reflected in Madison’s repeated call to give the U.S. Congress an unlimited veto power over state laws.

My Big Ten Expansion Power Play

What follows is the first guest blog post at Running Chicken, written by my old friend Marcus Sanborn. Marcus and I met during our first weekend at Michigan State, when we found ourselves involved in a community service project in downtown Lansing run by a man named Mad Dog. It seemed to mostly involve picking up trash from a park and that trash seemed mostly to be things you ought not to pick up. He’s a very funny guy, an avid sports fan, a family man par excellence, and — in addition to all of those things — he’s also an attorney in the suburban Detroit area.

Ever since Penn State joined the Big Ten in 1990, expansion has seemed like a natural and there has always been a perfect candidate: Notre Dame. Unfortunately, there has always been a major obstacle: Notre Dame. The reasons preventing this happy marriage include Notre Dame’s NBC contract, its cushy deal with the BCS (an 8-4 record gets them in and they get paid even when they don’t make it), its scheduling freedom and resulting “rivalries” with USC, Navy and the like, but mostly its belief that it is too good for a conference (returning to glory since 1995). As a result, Notre Dame has rebuffed the Big Ten’s repeated interest and, recently, the Big Ten has decided to move on and consider other options.

Benefits to Expansion

There are multiple benefits to Big Ten expansion. First, expansion would allow two divisions and a conference championship game, resulting in lots of money and additional visibility during what is usually a six-week layoff between the end of the Big Ten season and the beginning of major bowl games. Second, expansion would capture additional television markets, resulting in lots of money, which is why you often hear Rutgers mentioned as a possible candidate. Third, expansion would secure the Big Ten’s place as the premier collegiate conference. As it stands now, the SEC and Big Ten are head and shoulders above the other conferences in revenue.

Rules for Expansion

It is important to me that the Big Ten remain geographically contiguous. Here is a handy map depicting the BCS Conference universities and their affiliations, which also includes Conference USA for some reason. Note the contiguous conferences (Big 10, Big 12, SEC, Pac 10) in comparison to the others (Big East, ACC, C-USA).

The benefits of contiguity are many, including reducing travel time and costs for fans and athletes and maintaining natural rivalries. I also believe that universities in the same conference should share a common cultural identity, which is impossible when a single conference in includes BC, Duke and Miami or South Florida, UConn and Louisville. I like that the phrase “Big Ten Country” means something. Where are you exactly if you are in Big East Country? The Northeast? Florida? Kentucky? I also like that geographical contiguity makes for prettier maps. Lastly, as one of the last people alive that still believes in the student-athlete, expansion should further the Big Ten’s commitment to academics.

However, all of these nice ideas are trumped by money. Any candidate for expansion must increase the pool of money so as to offset the fact that the money is split between more schools. Ideally, it would result in a larger pie and a larger slice for each member.

My Plan

I have a two-part plan for Big Ten dominance. First, I would take Pitt and Rutgers immediately. Both are good public schools, ranking well ahead of the Big Ten’s current last place school, Iowa, according to U.S. News, and would fit right in with the other Big Ten universities. The addition of both would help offset the fact that Rutgers would be a bit of a geographical outlier (though no more so than PSU was back in 1990). Of course, Rutgers would bring part of the NYC market (No. 1), and Pitt would solidify the Pittsburgh market (No. 23), making it a no-brainer for all involved money-wise. (See this excellent discussion of the economics of Big Ten expansion for more detail). The addition of Rutgers and Pitt would give the Big Ten an uneven thirteen schools, which leads me to part two.

Second, I would approach Notre Dame and make them an offer they can’t refuse. I would tell them they have one week to decide if they want into the new Big Ten super-conference. If Notre Dame refuses, the Big Ten should take Missouri, who would jump at the chance. Missouri is also a decent school and would solidify the St. Louis market (No. 21), which it splits with Illinois. Either way, the Big Ten would have 14 teams, two divisions, and a championship game, making it easily the most dominant conference in the country.

To sweeten the pot for Notre Dame, I would tell them that if they refuse, they will never get another chance and they will be dead to the Big Ten, i.e., Big Ten teams will not play Notre Dame. I love the various Big Ten rivalries with Notre Dame as much as anybody, but it’s time for them to get over themselves and realize what a good fit they would be in the Big Ten.

I would then break down the divisions as follows:

East: Pitt, PSU, Rutgers, Michigan State, Michigan, Northwestern, and Notre Dame or Ohio State

West: Minnesota, Wisconsin, Iowa, Illinois, Indiana, Purdue, and Ohio State or Missouri.

I am sure there are some issues with this division and welcome suggestions, but I can’t see any better way to do it.

If the Big Ten is not committed to breaking into the NYC market or forcing Notre Dame’s hand, then Missouri or Pitt remain the best choices for a single-team expansion. Iowa State and Nebraska are also possibilities, but they do little in terms of TV viewers. Personally, I would not be in favor of Syracuse or Rutgers as a 12th team.

To contact Marcus about this topic — or for free legal or parenting advice — use the comment form below or send him a note via Twitter.