Bring Back the "Wild West"

I'm feeling a bit nostalgic today for the "wild West" -- not the old wild West of gunslingers and saloon girls, but a more recent incarnation, spurred by the medical marijuana business boom --after reading about what a colossal mess local and state politicians have made of the medical marijuana opportunity.

I say "opportunity" because it's not often, these days, that Americans have an opportunity to witness an actual expansion of freedom, rather than the contraction of freedom, or that we have a chance to get freedom right, handle it responsibly, make it work. It's not often, either, that we have the chance to show a little regulatory restraint when dealing with an emerging new industry, permitting it to breath, grow and bear fruit, rather than smothering it under the usual blanket of taxation and regulation.

Colorado voters more than a decade ago approved partial legalization of marijuana for medical purposes. It was an opportunity to deal maturely, rationally and responsibly with an expansion of personal liberty, in an era in which reducing freedom is the norm. But we're failing the test of freedom in numerous ways in Colorado, by killing-off through taxation and micromeddling the freedoms that were approved by voters more than a decade ago.

The "wild West" side of the medical marijuana boom was surprising, crazy, exciting and fascinating to watch, even if it was disconcerting to nanny-cons (nanny conservatives) and "just say no" retreads. But it invited an overreaction. The sanctimonious and hypocritical reaction of so many Republicans was particularly interesting, and ironic, since they crow loudest about protecting freedom and limiting government but fumbled the ball when an opportunity to put these ideas into action came along. Let the record show that the party of freedom, personal responsibility, medical choice, limited government and regulatory restraint led the charge against medical marijuana in Colorado, all in a reactionary, knee-jerk fashion. It shows that Nannyism isn't confined to the left side of the political spectrum.

The boom was a little hairy and scary for some, but it was also an interesting experiment in how Americans deal with newfound freedoms. New businesses and jobs were springing-up almost overnight and an entrepreneurial spirit flourished in an almost completely unregulated environment -- an exceeding rare phenomenon these days. A previously off-the-books product was suddenly visible and taxable, which was a net benefit to cash-strapped governments. And out of the initial chaos order and self-regulation soon emerged, spontaneously, before our "leaders" decided to screw things up by trying to "fix" what wasn't broken.

I'm now convinced that we would all be better off today, and things would have worked themselves out just fine, if we had let the wild West phase take its natural course, with no government meddling -- just as the real wild West matured and mellowed as time went on and spontaneous order emerged out of the initial chaos.

Now, however, a political overreaction to the boom is leading to bust, as the politicians and regulators do to this new industry what they've done to virtually all American industries -- which is to do everything in their power to kill it. The more politicians tried to "fix" alleged "problems," the more they tried to micro-meddle in an industry most politicians didn't understand, the more actual problems were created. Before MMJ businesses and patients had time to adapt to the first wave of legislated hyperregulation, another wave came along, threatening to drown the adventurous entrepreneurial spirit that the new freedoms sparked. Greedy governments began treating these fledgling businesses as cash cows, to be milked dry at every turn with exorbitant fees no ordinary business would survive or tolerate. And that's how the boom in only a few short years became a bust.

Average Coloradans showed they could responsibly handle these newfound freedoms. Most of them shrugged-off the alleged menace this presented. But unreconstructed drug warriors and control freak politicians couldn't tolerate the freedom and went to work legislating and regulating it way. And they've largely succeeded in whittling-away what voters approved a decade ago, not through a frontal assault but by backdoor means.

That's the story, in short, of how the medical marijuana boom became another of this state's many busts. Then we wonder why America is an economic basketcase, that's only growth industry is government. Then we wonder why the freewheeling spirit of the "wild West," in which this nation's independence and freedoms are rooted, has been so thoroughly snuffed out even out here in the once wild, but now mild, mild West.

Under Suspicion

Careful, everyone. Talking too much about "sovereignty" could land you on the FBI's domestic terrorism watch list.

The Casper Star-Tribune, in its investigative series about the so-called sovereign citizen movement, presents the tell-tale signs of a movement member as follows:

"The sovereign citizen movement often shares the same views of the tea party movement, and its emphases on the Second and 10th Amendments:

* Opposition to taxes -- especially the federal income tax.

* Opposition to regulations and regulatory agencies.

* Loathing of President Obama.

* "Take America back" rhetoric.

* Christian spirituality.

* And property rights."

Holy crap! This sounds like me and most of my friends. Maybe we all belong on the FBI's domestic terrorist watch list.

I wouldn't say I "loath" President Obama, which means I can't quite check that box (though I certainly don't like him much). I'm not heavily into "Christian spirituality," so that isn't a perfect fit. And I'm not quite sure who America should be taken back from, or who took it from whom, or who American belongs to these days, or what that really means, so there's no check mark there either. But I have to admit that some of the warning signs of a sovereign citizen sympathizer hit pretty close to home.

Of course, they might also describe most of the founding fathers, as well as many millions of middle-of-the-road Americans, past and present, living and dead, who simply take the ideas ensconced in the Declaration of Independence and U.S. Constitution seriously. Is that really all it takes, these days, to qualify as a potential domestic terrorist in the eyes of the FBI?

Pain Relief

Voters in a number of states have approved medical marijuana laws in recent years, only to find federal drug enforcers effectively nullifying those measures by busting people who tried to prescribe, cultivate or distribute medical marijuana. It was a classic states' rights conflict, in which federal drug laws were being used by Washington to override modest legalization steps taken by states. Voters in many states (including Colorado) seem open to relaxing certain drug prohibitions, if it could do suffering people some good. But the Bush Justice Department held firm to its "zero tolerance" stance, using DEA raids to effectively force federal drug laws on everyone else.

But that (thankfully) is changing under the Obama administration, which is calling-off the DEA raiders (at least for now) as long as the medical marijuana dispensaries adhere to state law. Here's a write-up on the issue in today's Los Angeles Times.

It doesn't mean the DEA isn't monitoring developments in the nascent medical marijuana industry, or that it won't raid operations it thinks are fronts for the non-medical distribution of pot. But the new deference the Justice Department is showing states -- the new reasonableness and respect -- is in my view a positive development, reducing some of the frictions (and injustices) its formerly-hardline stance were creating.

Will this experiment in partial legalization be abused and exploited by bad actors? It would be naive to ignore the possibility. But that's a matter better dealt with at the state and local level than by the U.S. Justice Department. States that have medical marijuana laws are dealing with an analogous issue, as state and local law enforcers, and state and local officials, begin to work through the sometimes-prickly issues and dilemmas this legalization experiment presents. We'll have to wrestle with these issues in Colorado Springs as well.

These difficulties aren't an argument against the experiment -- major changes in longstanding policy always create tensions and gray-area uncertainties. They're just the normal (but temporary) disorientation that occurs when freedom wins out over order, control and reflexive regimentation. I'm just glad that the Obama administration -- for now, at least -- will be giving states the opportunity -- the liberty -- to deal with this themselves.

Getting Serious about States Rights

You hear more about "states rights" these days than you have in recent years, as some governors react to events in Washington (especially the stimulus package) that seem designed to obliterate what remnants of the federalist system remain. But it’s hard to get a handle on how seriously people take this.

Texas recently caused a stir, for instance, when leaders there suggested that they might secede from the union in response to what’s taking place in Washington. Resolutions passed in other, mostly Republican-controlled states (like secession-happy South Carolina) have vaguely asserting state sovereignty, hinting at nascent rebellion. And I have written in recent years about the rise of what I call "neo-federalism" -- an emerging assertiveness on the part of states, stemming not from the hyperactivity of the Obama administration but from the paralysis that is much more the rule in Washington.

As someone who believes in the federalist system established by the founders, and who cheers almost any sign of its resurgence, I've watched these developments with hope and interest. But I've reluctantly come to believe that much of the most recent states rights talk is mere posturing and saber-rattling, done for rhetorical effect only, to advance narrowly partisan ends -- which threatens to trivialize the serious constitutional issue of how power is apportioned in the country.

Both major parties cynically evoke it when it gives them tactical advantage in the skirmish at hand, but neither takes it seriously enough to apply in a consistent or coherent way.

Yesterday's fight in the U.S. Senate over an amendment designed to expand gun rights offered a good example of what I'm talking about. So blatant was the flip-flopping and position-switching on the issue that even the New York Times picked up on it:

"The debate forced senators to wrestle with issues of states rights, sometimes in ways that seemed to clash with the general philosophies of their parties. Many Republicans, who typically favor limiting the ability of the federal government to dictate to states on social issues, voted in this case to limit the ability of states to insist on their own rules for concealed weapons carried by people from other states . . ."

. . .Critics of the amendment argued that it would undermine state and local gun-control laws, and accused Republican supporters, typically staunch defenders of states’ rights, of hypocrisy.

In their floor speeches and in the lead-up to the vote, Republicans repeatedly sought to rebut that accusation by saying that gun carriers would still have to obey state and local laws."

Typically, the Times focused on Republican hypocrisy, but Democrats are guilty of it, too, since they normally are enthusiastic supporters of expanding Washington's power and control, over virtually every corner of the country, but in this case -- in a laughably cynical fashion -- took the position that the amendment in question would trample states' rights.

The arguments for moving the nation back in the direction of its federalist origins are compelling, in my view, even if the political obstacles to doing so are daunting. And I won't abandon my hopes for a neo-federalist revival, spurred by the desire of states to chart their own destinies and escape Washington's long shadow.

But that effort won't gain real traction as long as Republicans and Democrats continue to trivialize and play games with the issue, batting states rights around like a political beach ball.

Obama's "progressive federalism" a one-way road to more regulation

The New York Times attempted to coin a catchy new phrase recently, when, in a story about President Obama's laissez faire attitudes about states that regulate in excess of mandates Washington imposes, up popped the term "progressive federalism," which seems the very definition of an oxymoron. Here's the context in which it appeared:

"The Obama administration seems to be open to a movement known as “progressive federalism,” in which governors and activist state attorneys general have been trying to lead the way on environmental initiatives, consumer protection and other issues, several constitutional experts say.

A recent decision by President Obama that could open the way for California and other states to set their own limits on greenhouse gases from cars and trucks represents a shift in the delicate and often acrimonious relationship between the federal government and the states, legal experts say, possibly signaling a new view of federalism.

“I think it’s quite significant,” said Samuel Issacharoff, a professor of constitutional law at New York University law school. “It shows the Obama administration’s more benign view of government intervention,” Professor Issacharoff said, and “may indicate a spirit of cooperative federalism” in which Washington will look to the states for new ideas and even a measure of guidance.

Tom Miller, the attorney general of Iowa, who met with the transition team in December to discuss federalism and other issues, said he believed the Obama administration would “usher in a new era in federal-state relations.” Members of the new administration, Mr. Miller said, “are open to what we’re talking about, what we’re thinking.” They also appreciate, he said, the fact that state attorneys general often achieve a level of bipartisan cooperation when they band together to pursue lawsuits.

The general trend under previous administrations had favored federal pre-emption, the belief that the best law comes from Washington, a concept still favored by business leaders. William L. Kovacs, a vice president for environmental and regulatory issues at the United States Chamber of Commerce, said free-for-all federalism was bad for business and would lead to a “patchwork of laws impacting a troubled industry.” Detroit, Mr. Kovacs said, would have to produce different cars for different parts of the country, and the environmental protection agency would grow tremendously to meet the new regulatory burden.

Many liberal thinkers skeptical of states’ rights and state actions since the days of segregation have begun to see that the states, to use Justice Louis Brandeis’s words from the 1930s, can “serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”


The phrase "progressive federalism" seems designed to have conservatives and libertarians pulling their hair out, since it is the right, by and large, which has owned federalism (or should I call it paleo-federalism?) as an issue in modern times. Although federalism since the founding has served as an ideological ping-pong ball, it is the right that would like to restore a more equitable balance of power between the central government and the states, allowing the latter (in the famous image evoked by Justice Louis Brandeis) to serve as laboratories for civic experimentation, where "novel social and economic experiments" can be tried "without risk to the rest of the country.”

Far from putting the rest of the country at “risk,” such experimentation can fall to the country’s overall benefit, since states, if freed to be creative, could serve as the incubators for true innovation, as happened with welfare reform in the 1990s.

Not only are states better equipped to tailor policies that meet their particular needs, but under this model, Americans can vote with their U-Hauls for the governing approaches that best conform with their beliefs and values. A bit of this goes on now, when, for instance, we read about fed-up people fleeing California for Colorado. But so great has the uniformity become, as Washington's hegemony had grown, that the latitude for real experimentation is gone and the choices open to Americans are becoming very limited.

The insidious thing about "progressive federalism" is that it is a one-way street, selectively employed in a manner designed to relentless increase, but never decrease, government power and control. Obama and other statists are more that happy to see command-and-control California set higher-than-federal auto emission standards, in a case of wag the dog regulating. But states that decide to go another way, and regulate below the federal standard -- who decide, for instance, to opt out of certain provisions of the Clean Air Act or Endangered Species Act -- are out of luck, and will find the federal hammer coming down on them.

The point is made explicit by William Marshall, a law professor at the University of North Carolina who was deputy White House counsel in the Clinton years, when he's quoted by The Times as saying that federal rules should serve "as a floor and not a ceiling,” meaning that states would be allowed to pile new regulations on, but never remove or renounce them.

So much for experimentation. So much for choice. This "laboratory" is designed to produce only one outcome -- more regulation. "Progressive federalism" is another Orwellian attempt to rob words of their meaning -- and might more accurately be described as "faux federalism."