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Old 10-09-2012, 08:09   #291
Goaltender66
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Join Date: Dec 2000
Location: Under the cultural penumbra of DC
Posts: 14,706
I've been avoiding wading into the drug legalization thing, because honestly these things kind of tire me out. I'm somewhat sympathetic to the legalization concept, but the way the arguments are packaged seem to be designed to turn off the very people the Libertarians are trying to persuade. For example, bringing up tobacco and alcohol are arguments for making those things illegal too, not for legalizing pot. It's a rhetorically childish gambit, kind of like saying "Hey, Sally's dad lets *her* ride a bike without a helmet!!!" Honestly, I would have more respect if the guy just said "yeah, I just want to get high and I don't want to go to jail." The other stuff just ends up sounding like rationalizations.

That said, let's take the 10A arguments, or that the Constitution is silent on the matter and therefore it is "permitted" (I hate that phrasing but I'm trying to be brief). The reality is that something can still be regulated even if there's an explicit protection in the Constitution for that activity. That's because the law and the courts recognize that a balance must be struck between government interests and constitutional rights.

For example, the Constitution has the Equal Protection clause, yet we have Affirmative Action which seems to run afoul of that clause. That's because of the judicial review standard of intermediate scrutiny. Government ostensibly has an important interest in expanding admissions opportunities to underserved groups, and the law is judged to be the least-intrusive way of doing that (not my argument, but that's the argument that won the day in 1976).

A lower standard is Rational basis, where the question is if the law is a reasonable way to pursue a legitimate end. So does government rationally believe that it has a legitimate interest in regulating drugs? To me the answer is yes (I think it's a rational argument, but that doesn't imply it's a -persuasive- argument). Is a blanket ban a reasonable way to pursue that interest? Well....that's the rub, isn't it?

The highest standard is strict scrutiny and that's generally used for laws impacting explicitly-protected rights. For example, laws having to do with freedom of speech are reviewed under strict scrutiny. The government must have a compelling interest and the law has to be the narrowest and least restrictive way to meet this interest. For example, it's against the law to blab about government secrets. There's a compelling interest (state secrets are, well, secret) and it's not only narrow (it applies to people who actually know secret stuff) but unrestrictive for the mass of people (not everyone knows secret stuff). To me this level of review wouldn't be justified for something like marijuana legalization, mainly because smoking pot isn't a fundamental right. Of course, an argument that it is can be made in court which is what countrygun was (I think) trying to get at.

The main takeaway here is that just because something is protected (explicitly or implicitly) in the Constitution, it doesn't mean it's immune to any regulation whatsoever.
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Last edited by Goaltender66; 10-09-2012 at 08:15..
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