Will Colorado Conservatives Flunk This States' Rights Test?

What began as a Coloradocentric news story -- suburban Denver man, Chris Bartkowicz, busted by the DEA for growing medical marijuana in his home -- is quickly shaping up as something more significant, as the Denver Post explained Friday. The case will not only test whether federal drug policies trump partial drug legalization that's been written into a state constitution. Even more interestingly, it will test whether Colorado conservatives, like Attorney General John Suthers, support states' rights in theory only, or whether they'll defend them in practice on an issue as controversial as medical marijuana.

"Bartkowicz, who was arrested Feb. 12 by Drug Enforcement Administration agents after they seized more than 200 marijuana plants that Bartkowicz said were for medicinal use, is the most high-profile person involved in medical marijuana in Colorado to face federal prosecution.

He is also one of the only people nationwide to face federal charges since a Justice Department memo in October said federal agents should respect state medical-marijuana laws.
That convergence of circumstances — federal law, in which all marijuana is illegal, versus Colorado's constitutional protection for medical marijuana — makes the case fertile legal ground . . .

. . . . two elements could add fresh legal intrigue to Bartkowicz's case. The first is that Colorado's legal protection for medical marijuana is written into the state's constitution, whereas other medical-marijuana states have lower protection. Denver medical-marijuana attorney Warren Edson said that could give Bartkowicz a stronger argument that his prosecution violates states' rights. . . .

. . . The other wild card is the Justice Department's October memo, which said the government wouldn't target people in "clear and unambiguous" compliance with state medical-marijuana laws. [One expert] Hermes said it is possible that defense attorneys could use the memo as ammunition in a federal case. Indeed, there is a defense called "entrapment-by-estoppel," where defendants argue the government fooled them into breaking the law by leading them to believe what they were doing was legal."

Self-proclaimed conservatives love to prattle on about freedom and states' rights. But this is a litmus test of whether they truly believe it.

They want government out of our lives, they say, and more freedom, but many conservatives draw back when free citizens choose to treat real or perceived maladies with medical marijuana. Country club conservatives can sip Stellas and cosmos until their heads swim, and dope themselves happy on over-the-counter narcotics and mood-enhancers. But for them, Nancy Reagan offered the last word on the drug question when she just said "no."

These conservatives say they support more autonomy for states, against encroachments by Uncle Sam. But they think Uncle Sam automatically knows best when it comes to enforcing rational drug rules, even when those rules clash with state law. They're content to see Coloradans living under the threat of DEA drug raids and federal prison sentences, for engaging in an activity that has been legal here for a decade. Nancy Reagan has the final say again.

Conservatives also say they support the protections afforded by a written constitution. But that position gets shaky if what is written into the state constitution conflicts with their personal prejudices, or with rules from Washington they selectively approve of.

Liberals generally are content to have states living under Washington's long shadow. The more regulation the better, from their perspective. Those who support partial or full drug legalization may be forced to do some re-thinking as a result of this case, but it doesn't cause the cognitive dissonance it does for folks on the right.

The situation creates much bigger problems, in terms of consistently applying one's ideology, for conservatives. They may rattle the chains over federal seatbelt mandates, or grumble about the absurdities of the Endangered Species Act. They will cheer if states buck Washington on a host of other issues. But they seem content to let a few agents in DEA's Denver office trample all over the Colorado Constitution by hauling Bartkowicz into federal court. They're content to have the DEA scaring the hell out of every medical marijuana patient and distributor in Colorado, though it's been legal here for a decade.

So much for personal freedom. So much for states' rights. So much for defending the state Constitution, which explicitly allows the medicinal use of marijuana, against federal interference. These sorts of Republicans aren't very different from Democrats, really; they're the kind of Republicans who led the party of freedom and limited government so far from its roots. And then they rail about the alleged "hypocrisy" of medical marijuana advocates.

So why did the DEA decide to break the drug war détente in Colorado? The short answer can be summed-up in two words: John Suthers. I believe the DEA was encouraged by the fact that we don't have an attorney general who will raise objections, or stand up for Coloradans or the Colorado Constitution, when the issue is medical marijuana. Quite the opposite, in fact -- we have an attorney general who almost invites such actions, with his derision of medical marijuana participants and his refusal to recognize Amendment 20 as legitimate.

Suthers tried to ignore Amendment 20 for as long as he possibly could. He was happy to let federal drug enforcers dictate the rules in Colorado, by intimidating Coloradans who dared to engage in a legal activity. When the Obama administration adopted a more reasonable stance, pledging less interference in states where legalization had taken place, there was an explosion of pent-up demand and activity in Colorado, causing consternation in law enforcement circles. Lines that were once boldly drawn are now blurred. The reactionaries responded as one might expect. And they've gotten encouragement all along the way from our reactionary attorney general.

Suthers' new tactic is to interpret Amendment 20 so narrowly that it lacks any real meaning; to deride MMJ participants as a bunch of fakers and potheads; to continue fighting a battle he lost back in 2000. No wonder the DEA chose Colorado as the place to pull a drug war bait and switch. It got an engraved invitation from the state's top lawyer.

Infiltration and Subversion

A few eyebrows have been raised, and questions asked, about why a conservatarian like myself would be blogging at the infamously liberal Huffington Post, given all the abuse I'm bound to take along the way. The best answer I have to offer is a counter-question: "Why did Richard Nixon invade Cambodia?"

You can't win the war of ideas by surrendering to the other side their safe havens.

The American Contrarian will always be Firebase Alpha. But the HuffPost is where I fly sorties over hostile territory, dodging flack and showing the flag.

Voting with Their Feet for Charter Schools

Debate about the effectiveness of charter schools, vis-a-vis their conventional public school counterparts, seems never-ending. Some studies suggest they're superior; others say that's a myth. Both camps point to the anecdotes and analyses that bolster their case. The waters remain murky.

But by one oft-overlooked but critically-important measure, parental demand, charters seem to be making the grade. Just look at today's Denver Post:

"Alma Meraz's eyes welled when her daughter's name was pulled from a cookie jar during an enrollment lottery for the high-performing West Denver Prep charter school.

"I'm so happy," said Meraz, who cleans houses for a living. "I need her to go to this school for better opportunities. For a better life."

West Denver Prep — which some parents have come to view as a first step toward college and possibly a lifeline out of poverty — is rated the second-best school in Denver.
The school's college-preparatory curriculum and swift interventions for struggling students have been touted for helping at- risk kids beat the academic odds. West Denver Prep now posts some of the best academic growth in the state.

The middle school also draws nearly double the number of applicants it can seat, meaning waiting lists are long and disappointments high during the annual school- choice enrollment period.

It's a scenario played out across the state each winter, as parents battle to get their kids into popular, high-performing schools during the choice period.

The Colorado Department of Education estimates about 38,000 children are waiting to get into Colorado charter schools. One such school, Classical Academy in Colorado Springs, has 7,800 students on its wait list."

While the so-called experts duel and debate, education consumers are speaking loud and clear. More and more Americans, if given the choice, are voting with their feet for charter schools. And that's a good enough measure of success for me.

Sagebrush Rebellion Shows Signs of Life

Wyoming would seem to have a lot in common with Colorado, when you look at it on the map. It's directly to our north and about evenly split between mountains and plains. People there wear cowboy boots. Some even still work as cowboys. Both states are home to an endangered species called the Preble's meadow jumping mo . . . . oops . . . . correction: the mouse is endangered in Colorado but not in Wyoming.

But one thing Wyoming still has that Colorado seems to have lost is the wild and rebellious spirit of the old West.

It's hard to imagine a good old-fashioned sagebrush rebellion breaking out in the "new" Colorado. But the desire to be free from Washington's suffocating embrace still burns in the hearts of Wyomingites, judging from the batch of neo-federalist bills under consideration by legislators there.

I've written before about my admiration for Gov. Dave Freudenthal, a Democrat who isn't afraid to buck Washington when it's in the state's best interests. During his state of the state speech Monday, he accused the federal government of trying to "regulate everything." "The states need to be more than empty vessels whose job it is to execute federal policy," said Freudenthal. "And the only way you're going to do that is to take it very delicately and go in and try to re-establish the balance between the federal government and the states."

Can anyone imagine Bill Ritter saying that?

Whether we can "delicately" re-establish this balance is doubtful, in my view. Uncle Sam won't release his grip on Western states without a saloon-style brawl. But some Wyoming legislators seem intent on backing-up the governor's rhetoric with action.

From the AP:

CHEYENNE -- The Wyoming House of Representatives is taking the first steps toward possibly telling the federal government to back off on a range of states' rights issues, from gun control to endangered species management.

A few House members, however, warn that Wyoming shouldn't seek too much independence from a federal system that serves as a significant source of state income.

Rep. Pete Illoway, R-Cheyenne, is the main sponsor of House Joint Resolution 2. It would call on Congress to stop enacting mandates beyond the powers granted to it in the U.S. Constitution. The resolution lists federal laws such as the Endangered Species Act, the Clean Water Act and federal land management statutes as failing to make that cut.

The House voted 50-8 on Tuesday to clear Illoway's resolution for introduction. It takes a two-thirds vote to introduce non-budget matters in the current legislative session.

"Maybe somebody will start to listen to see that the states' rights are being taken away," Illoway said after the House vote, adding that other states have enacted similar measures. "That's really what we tried to do, to say, 'Come on, you're taking away what the Constitution gave to us . . ."

So what's on the agenda?

HB-28, the "Wyoming Firearms Freedom Act," would "provide that firearms that are made and sold within Wyoming would be exempt from federal regulations," reports the AP. House Joint Resolution 5 calls on Congress "to stop abridging states' rights, including gun rights." HB-47 "would direct the Wyoming Attorney General to consider legal action against the federal government over federal agency environmental review proceedings or endangered species issues including wolf management in the state," reports the AP.

Can anyone imagine a majority of Colorado legislators supporting such bills?

Utah legislators are also showing a little of the old piss and vinegar. Last week, the House approved a measure that would make skepticism the state's official position vis-a-vis climate change. It also urges Washington not to pursue cap-and-trade or other carbon control schemes. Beehive State legislators also have picked a fight with Uncle Sam on Second Amendment issues, approving a bill that would exempt firearms manufactured in Utah from federal gun rules.

Best yet, a group of county officials are pushing a trio of bills that would approve the taking of federal land in Utah through eminent domain. Reports the Deseret News:

"A pair of Utah County Republican lawmakers want to shepherd a trio of bills using eminent domain to wrest control of public lands they say are tied up by an out-of-balance, out-of-control federal bureaucracy.

The sponsors, with unanimous support voiced Wednesday by a legislative appropriations committee, not only want to tap some School and Institutional Trust Lands Administration land for development, but also yank back some of the parcels of oil-rich land withdrawn by Interior Secretary Ken Salazar a year ago this month.

Rep. Ken Sumsion, R-American Fork, and Rep. Chris Herrod, R-Provo, said the groundswell of the states' rights movement means the time is ripe for the battle, which they envision playing out before the U.S. Supreme Court.

Citing a quote by Alexander Hamilton, Herrod said it is time to sound the alarm on behalf of the people and be the mouthpiece of discontent. "People in Utah are discontent," he said. "We want to be in control of our destiny."

Naturally, a few ninnies worry that showing a little independence, a little defiance, could lead to federal retaliation and cost the states federal funds -- it's the long green leash that keeps so many of them from straying.

"I agree we have a problem," one Utah official said in reference to federal hegemony over the West. "It is out of balance, and it is out of control, and something needs to be done. … But we work with [the Feds] all the time. The last thing I want to do is get on their short side. … If you are going to take out the king, make sure you do it in the first shot."

Rep. James Byrd, a Democrat from Cheyenne, is afraid Wyoming's access to mineral deposits on federal lands might be jeopardized, and its federal road funding might go away, if it doesn't "work with" the federal government. "So, we have to be careful as to how we phrase things and what positions we take in opposition to the federal government," Byrd told the Casper Star-Tribune.

What a sad day we live in as Americans, and how far we've drifted from the nation's original design, when elected state leaders feel they need to tiptoe around, whispering like UN diplomats, for fear that they'll anger and enrage the sleeping giant in Washington.

Too Little Too Late

It was reported several weeks back that the beetle blight sweeping through Colorado is slowing somewhat. The bad news behind the "good news" is this: It's slowing because huge swaths of forest are dead and the hungry little buggers are running out of food.

How much of this calamity is "natural," and how much man-made, isn't much discussed (especially by those who might have the fingers pointed in their direction). Having first written about the forest health crisis back in the late 1990s (though the warnings were there as far back as the Yellowstone fires of 1988), I'm of the belief that conditions for the crisis were largely the result of policy choices, and that much of the devastation could have been contained with aggressive and focused federal action.

That action didn't come, in my opinion, because of bureaucratic and political inertia, red tape, "analysis paralysis," obstructionism from the environmental lobby (which won't even tolerate tree-cutting designed to save forests) and the pusillanimous politicians who kow-tow to the extremist element. Maddening stories such as this one show that federal responsiveness has not improved, despite recent rhetorical support for "responding to the crisis."

Reports The Pueblo Chieftain:

"Officials with the Rio Grande National Forest are still waiting to see whether their forest will benefit from $30 million the Forest Service has set aside to fight bark beetle outbreaks statewide.The agency's regional office in Denver recently earmarked $2 million from that pie for spruce beetle outbreaks and other forest health issues in Southern Colorado and the Western Slope.

Janelle Smith, a spokeswoman for the regional office, said there was no timeline for when a decision would be made on how to divide the $2 million, which could be spread across as many as three national forests. Aerial survey results released last month show that spruce beetles have chewed through at least 144,000 acres on the Rio Grande, which surrounds much of the San Luis Valley. But foresters suspect the outbreak may be even larger since the initial stages of infestation are not visible from the air, said Mike Blakeman, a public affairs officer with the Rio Grande."

The beetles have leisurely eaten their way across Colorado, devastating landscapes that are this state's most precious resource and biggest tourist draw. Yet the Forest Service is taking it's sweet time about doling out the meager funds belatedly made available. The Denver Post reports that another $30 million will soon be flowing to the state. But this will be used not to counter the epidemic, or save our remaining forests, but to clean up after the beetles. Senator Mark Udall called this a "huge win" for the state -- which is a little like saying Little Big Horn was a huge win for Custer.

This is more than a disaster: it's a national disgrace. It's Katrina in slow motion, but with a federal response even more unforgivable because it had years, not days or weeks, in which to react. And it's a direct result of the inability (or is it the unwillingness?) of Washington to responsibly manage lands it holds in trust for the rest of us.

So, the next time someone tells you that adding new acreage to the massive federal domain will lead to more "protection," laugh in their face. What's happening in Colorado and elsewhere across the West proves that the surest way to wreck a beautiful landscape is to put your incompetent old Uncle Sam in charge.

Zoning Rules Put a Kink in Suburban Sex Parties

I ran across this finally-polished journalistic gem while scanning zoning-related news stories for the news aggregators at Local Liberty Online. It's not often that you find a zoning-related article that makes you laugh out load -- most just make me clench my jaw. But this one manages to capture not just the mania of the rules-enforcers, but the madness of our times.

Follow the link and enjoy.

Dude, Where's My Handout?

Documentarian Michael Moore is a collectivist who has become rich bashing capitalism. But that isn't stopping him from acting like a corporate welfare mother, as the Michigan Capitol Confidential reports, by seeking $1 million in filmmaker subsidies from his old home state.

The Mackinac Center, a Michigan think tank that opposes the state's extremely generous film-fare program, has Moore on tape at a 2008 film festival decrying such taxpayer handouts. “Why do they need our money, from Michigan, from our taxpayers, when we’re already broke here?" Moore asks. "I mean, they play one state against another, and so they get all this free cash when they’re making billions already in profits. What’s the thinking behind that?”

Yet here comes Moore, only a few years later, with greasy old baseball cap in hand. Maybe someone should do a documentary called "Hypocrisy: The Michael Moore Story."

The Perils of Freedom

As a step parent to teens, who operate in a world where drugs are readily available and frequently abused, I read opinion pieces like this one with genuine anxiety. I wonder whether I'm sending them the wrong signals by defending the right of adults to responsibly use medicinal marijuana, as approved by Colorado voters in the year 2000. The issue, in my view, is personal freedom -- that's what I'm an advocate for, not medical marijuana. But I know such distinctions can get blurred in the debate.

Am I inadvertently giving my step children a green light to use drugs by taking this position, as the Denver Post column suggests? I wrestle with that question, but still come down on the side I'm on. My belief in the virtue and value of personal freedom in this case trumps my fear that liberty will lead to license. I want them to grow up free, even if freedom has risks. I want them to use their freedom wisely and responsibly, but there are no guarantees. This is what makes freedom a more perilous course than rules, regimentation and control.

Our desire as parents is to minimize freedom’s dangers by maintaining control, through cajoling, counseling or threat of force and punishment, if necessary. And this serves as a metaphor for the tensions that arise in a free society at large. The paternalists among us want to extend those risk-mitigation controls beyond adolescence, to the adult population – from cradle-to-grave if possible -- because they don’t trust people to make responsible choices. But such paternalism takes a heavy toll on our freedoms over time, which brings a danger arguably more menacing, which some call the Nanny State.

I follow a simple rule of thumb when wrestling with such issues: When in doubt, err on the side of freedom. That's because I fear overweening state tyranny, disguised as paternalism, more than I fear the messiness and riskiness of freedom.

America's Only "Growth Industry"

Government is America's only remaining growth industry -- the only sector of the economy that continues to expand even as the private economy (the "competitive sector," as one friend calls it) contracts. It's not very surprising, therefore, that government sector unions have now eclipsed competitive sector counterparts in terms of membership numbers. While overall U.S. union membership continues to fall, tracking the downward trajectory of old line industries (industries that unions helped destroy), the numbers are rising where the growth is -- in government.

The Wall Street Journal makes note of this trend, and explores some of the implications, on today's editorial page.

"In private industries, union workers are subject to the vagaries of the marketplace and economic growth. Thus in 2009 10.1% of private union jobs were eliminated, which was more than twice the 4.4% rate of overall private job losses. On the other hand, government unions offer what is close to lifetime job security and benefits, subject only to gross dereliction of duty.

Once a city or state's workers are organized by a union, the jobs almost never go away.
This means government is the main playing field of modern unionism, which explains why the AFL-CIO and SEIU have become advocates for higher taxes and government expansion in cities, states and Washington. Unions once saw their main task as negotiating a bigger share of an individual firm's profits. Now the movement's main goal is securing a larger share of the overall private economy's wealth, which means pitting government employees against middle-class taxpayers.

And as union membership has grown in government, so has union clout in pushing politicians (especially but not solely Democrats) for higher wages and benefits. This is why labor chiefs Andy Stern (SEIU) and Rich Trumka (AFL-CIO) could order Democrats to exempt unions from ObamaCare's tax increase on high-cost health insurance plans. To the extent Democrats have become the party of government, they have become ever more beholden to public unions.

The problem for democracy is that this creates a self-reinforcing cycle of higher spending and taxes. The unions help elect politicians, who repay the unions with more pay and benefits and dues-paying members, who in turn help to re-elect those politicians."

With American manufacturing down on its knees, brought low by self-inflicted and government-inflicted wounds (as opposed to the usual bogeymen of free trade and globalization), the only fertile ground left for unionism to grow is in the government sector. That not only is turning unions into a major lobby for higher taxes and government growth, as the editorial points out. It also increases the difficulty of reining-in government, and reforming government, when the "taxpayer sector" balks at paying more. That dynamic can be seen not just at the federal level, but at the state and local levels as well.