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February 11, 2014

If you like paternalism and hate permissive freedoms and big business...

then you are on the same page as anti-marijuana reformer Patrick Kennedy and Project SAM, as well explained in this amusing and telling segment from last night's Colbert Report.  

Sam-logo-horizAt about the 2:20 mark of the clip linked above, Kennedy explains he is a "a good liberal Democrat" who "does not like big business" and fears that this new industry will start selling lots of products that people will want to buy with THC in it.  And just after the six-minute mark, Kennedy explains that he is "worried about the future of our country" because the permissive environment created by marijuana legalization might lead to stressed kids thinking they should consider using marijuana "which might in the short run make them feel better but in the long run will cost them and our country."

Though it is dangerous easy to make fun of big government paternalists like Kennedy, I am truly sympathetic to his concerns and I am glad he is giving voice to reasonable anti-reform views.  But I also think he fails to recognize (1) that big business can actually do a lot of good when incentivized to develop and market "safer" vice products that people would otherwise get from the black market, and (2) that pot prohibition (especially with its inevitable big-government criminal-justice support system) ends up costing a lot of kids in both the short run and the long run.

That all said, I am glad this debate is going on in a variety of media forums.  I am also glad to see, as evidenced by this local article from Florida, that for some parents with ill kids, supporting marijuana reform is actually a better way to be paternalistic in the healthy version of that trait:

Several efforts to legalize medical marijuana are gaining momentum in both Florida and Georgia.  Both Republican and Democratic lawmakers are proposing bills that would legalize a different form of cannabis, giving medical patients an alternative treatment. And in November, Floridians will be able to vote in a statewide referendum.

Medicinal marijuana has yet to gain approval from the Food and Drug Administration, and opponents argue more tests and studies need to be done proving its medical benefits. Yet there are parents willing to take a chance on this alternative form of medicine with their children, saying it's their last hope.

In December of 2013, Cathy Klein, along with thousands of volunteers worked feverishly to collect enough signatures to get medical marijuana on Florida's November ballot. Now, two months later she says, "I know in my heart it's going to be legalized."  Nearly 700,000 signatures collected and validated, the decision is now in the hands of Florida voters. At the same time, state lawmakers in both Florida and Georgia are working towards finding their version of a solution for sick patients.

In Georgia HB 885, known as "Haleigh's Hope" would utilize academic medical centers in state, allowing them to study marijuana in a controlled clinical setting.  Monday, Florida State Representatives Jeff Clemens and Joe Saunders held a press conference supporting the Cathy Jordan Medical Cannabis Act, which would create a medicinal marijuana program that allows access to cannabis for medical treatment. It would also regulate when and how it can be cultivated, dispensed, and used.

House Bill 843, Klein says is a light at the end of the tunnel.  Her 9-year-old son Sean endures several seizures every single day.  "I am very excited," said Klein. "That is our golden ticket right there. That is what we're after, is Charlotte's Web for Sean."

The measure would legalize an extract of a cannabis strain known as Charlotte's Web. Proponents say it reduces seizures in children with severe forms of epilepsy.  "It makes me tear up to think about it," said Klein. "To have a day where he doesn't have seizures would be so huge."

Florida Governor Rick Scott has opposed the legalization of marijuana for medicinal purposes in state. Some opponents say it's dangerous and addictive. Still, parents like Klein say they're willing to take a chance.  "I don't remember his personality anymore," said Klein about her son. "He's been on seizure medications for so long. It would just be nice to get my child back."

February 11, 2014 at 11:35 AM | Permalink


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Using a sentimental story like this to argue that we should get rid of laws against pot is like using the story of a mercy killing of a dying patient to argue that we should get rid of laws against murder.

Posted by: Bill Otis | Feb 11, 2014 12:59:23 PM

Unlike you Doug, I actually agree with SAM. However, I also feel that SAM is too little too late as the legalization ship has already sailed. In the long-term what is going to happen is that the so-called "laboratory of states" is going to show itself to be nothing other than a patchwork of policy chaos and people will be pining for federal intervention, they very thing everyone is now so desiring to get rid of.

Posted by: Daniel | Feb 11, 2014 1:47:04 PM

I was surprised this viewpoint was expressed on Colbert last night and though I might have a bit of sympathy, it really doesn't hold up.

If a product should be legal, it should be legal. Big business will in some fashion take advantage of it. It is what they do. Sorry. Like a good liberal, if he wants to regulate business in various ways, fine, but it is not a good argument against legalization. The safer vice comment by Doug follows a liberal theme there. I guess the small unregulated marijuana seller can appreciate PK though realistically he enables the big illegal drug cartels too.

The "permissive environment" bit is big daddy government that as to matters of personal responsibility is a sort of minority liberal view really. It is also amusing. As if kids don't today find marijuana okay and legalization will push them much in that department. Honestly, "bit of sympathy" is a bit generous. These arguments are pretty weak. And, "good liberals" should beware such paternalism, given that track record in other areas of personal choices.

Posted by: Joe | Feb 11, 2014 2:05:18 PM

I am eager to combine Bill's and Daniel's comments to ask whether we are troubled by "a patchwork of policy chaos" that exists in how states deal with homicide offenses. Each state makes its own choices about how to label and punish various forms of homicide, and what would be a crime in some states (e.g., negligent vehicular manslaughter) is not always a crime in other states. And, of course, penalties vary dramatically from state to state as well. And, to my knowledge, this "patchwork of policy chaos" does not have "people pining for federal intervention."

The analogy is not perfect, of course, but Bill's reference to homicide laws prompted my eagerness to make this point. And, more to the point in response to Bill, what is really at issue is whether smoking pot is more like murder or mercy killing. If you think it is more like murder, let's keep it illegal. If you think it is more like mercy killing, maybe we ought to question our strict federal prohibition.

Posted by: Doug B. | Feb 11, 2014 2:42:44 PM

Doug --

Smoking pot is nothing like either murder or mercy killing.

Nor did I suggest otherwise. My point was simply that it's foolish, indeed it's disingenuous, to use one sentiment-laden outlier story to try to decide broad legal questions. This is true whether the story is about a sick child or a dying patient.

Posted by: Bill Otis | Feb 11, 2014 3:07:45 PM

Isn't Bill Otis a big-government, liberal Democrat? He supports federal laws prohibiting marijuana use by means of taxpayer-funded, far-reaching government programs that are entirely untethered from any type of Commerce Clause nexus contemplated by the founders, right?

Posted by: Phil Jensen | Feb 11, 2014 3:42:44 PM

I watched this last night, so I might not remember correctly, but it seemed to me that Patrick Kennedy only had a problem with big business profiting from marijuana. He seemed to be copacetic with it profiting from "rehabilitation" programs. I wonder where the funding for his organization comes from? Either way, what Kennedy is selling is just prohibition warmed over.

Posted by: C.E. | Feb 11, 2014 3:57:02 PM

Phil Jensen --

"Isn't Bill Otis a big-government, liberal Democrat? He supports federal laws prohibiting marijuana use by means of taxpayer-funded, far-reaching government programs that are entirely untethered from any type of Commerce Clause nexus contemplated by the founders, right? "

You'd have to ask Justice John Paul Stevens, the author of Gonzales v. Raich. You could ask Justice Kennedy, too, who voted with the majority. Or you could ask Justice Scalia, who concurred.

Pretty broad ideological span there, wouldn't you say?

Of course, if you know more about constitutional law than Justices Stevens, Kennedy and Scalia, please be sure to clue us in. You must be really smart.

Posted by: Bill Otis | Feb 11, 2014 5:26:04 PM


Homicide or mercy killing are, overwhelmingly, local events. Drugs are not. Drug use might be inherently local but the supply and demand for drugs is national and international events. That is a key difference.

To my mind the best analogy for state-based drugs laws is the inter-state tariffs during the pre-constuition confederacy. One of the reasons that the US Constitution came about was the economic chaos that was caused by every state having its own tariff schedule and hence the Commerce clause. I'll grant that we are not at precisely the same point today with drug laws but as SAM shows we are not far away, either.

Posted by: Daniel | Feb 11, 2014 7:07:12 PM

I presume Bill Otis is ok with broad application of the Commerce Clause when such application paves the way for satisfying the jurisdictional threshold for fed. prosecutions under the Controlled Substances Act. (I.e., I presume Bill is with the left (and Scalia) in the SCOTUS decision in Raich.)

I also presume that he joined with his Fox News Channel buddies in taking the position that the individual mandate component of Obamacare could not be deemed a valid exercise of Congress' power under the Commerce Clause. (I.e., I presume Bill is with the right in the SCOTUS Obamacare decision.)

Assuming my presumptions are correct, isn't Bill's hypocrisy (or, perhaps, more accurately, his subordination of principle to desired results) quite glaring?

By contrast, Clarence Thomas was ideologically consistent in his dissents in Raich and the Obamacare case.

Posted by: ?? | Feb 11, 2014 7:27:54 PM

From his past comments, Bill Otis comes off as conservative on this issue, which means in certain cases federal power is okay, while in others it is not. He isn't a libertarian. So, I don't think he is being hypocritical.

Posted by: Joe | Feb 11, 2014 7:46:01 PM

?? --

All your presuming and assuming reminds me of the old joke about the two economists who fell in a deep hole while hiking in the middle of nowhere.

They looked around the tall, sheer, steep walls. It was not looking good. One grimly said to the other, "Looks like we're stuck. But his buddy cheerfully replied, "Hey, look, we'll assume a ladder."

P.S. Pssssssst. Some broad applications of the Commerce Clause are OK, and some aren't. Imagine that!

Posted by: Bill Otis | Feb 11, 2014 11:29:37 PM

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