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Paul Ryan, the Fourteenth Amendment, and “personhood”

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With more and more smart, honest conservatives getting fed up and switching sides, the remaining smart, honest conservatives are especially precious for those of us who don’t want to talk only to members of the Blue team. So Ramesh Ponnuru is a scarce resource, and I wouldn’t criticize him if I didn’t have to.

But I’m utterly puzzled by Ramesh’s criticism of Amy Odell and his followup criticism of Kevin Drum over the proposed Sanctity of Life Act, a Congressional “personhood” bill sponsored by a 55 extremists, including Paul Ryan.

Ramesh’s position is that the bill wouldn’t criminalize abortion. He accuses Kevin, who disagrees, of bad lawyering.

Well, I’m not a lawyer at all, but (as Sam Ervin once said) I understand the English language; it’s my mother tongue.

The full text of the bill is at the jump. The substance of it is that Congress, acting explicitly under its power “to enforce, by appropriate legislation,” the provisions of the Fourteenth Amendment, declares that every fertilized egg is a person, with all the legal rights of a person, including the “right to life.”

Now, what does the rest of the Fourteenth Amendment say? Why, it says, among other things, that “no state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So, for example, a law forbidding the murder of white people only, leaving blacks unprotected, would be void as denying equal protection.

Assume for the moment that the law were to pass both Houses, that President Romney were to sign it, and that the Supreme Court’s Right-to-Life caucus were to get a fifth vote to hold that the law was constitutional.

Then no state could criminalize the killing of the “post-born” without also criminalizing the killing of the “pre-born,” any more than it could criminalize the murder of whites while permitting that of blacks. (That’s what makes “Dred Scott” a RTL dog-whistle, valid even in Confederate territory.)

Thus, unless a state wanted to declare open season on all of its citizens, it would have to criminalize abortion, and do so without any exceptions whatever: not rape, not the life of the mother, not nothing. I suppose you could run an IVF clinic, but you’d have to keep every fertilized egg alive indefinitely; it would be a person in law, and disposing of it would be murder.

So when the bill goes on to provide that “the Congress, each State, the District of Columbia, and all United States territories have the authority to protect the lives of all human beings residing in its respective jurisdictions,” “authority” really means “obligation.” Buzzfeed backed off on the original claim, but it seems to me they were wrong to do so.

So yes: Mitt Romney, who said in an unguarded moment that he’d be “delighted” to sign a bill banning “all abortion,” has chosen as his running-mate a Congressman who co-sponsored a bill to do precisely that.

Footnote Note that the short title of the bill betrays its theocratic roots. Congress has extensive powers, but even under the most generous interpretation of the Necessary and Proper clause they don’t extend to defining or protecting sanctity.

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Marijuana policy and international law

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Commenting on Matt Yglesias’s essay about how cheap pot would be post-legalization, my old friend Kevin Drum notes that marijuana prohibition is built into the Single Convention on Narcotic Drugs and its successor international drug control treaties. Within the constraints of those treaties, what Kevin calls “decriminalization and wink-wink nudge-nudge lack of enforcement” are indeed all we could have at a national level.

But that doesn’t mean taxation-and-regulation needs to be completely off the table.

First, the treaties don’t bind the fifty states. The treaties explicitly recognize that the obligations they impose on the signatories are limited by those signatories’ own domestic constitutional arrangements, and it’s settled constitutional law that the federal government may not require a state to criminalize something, or force a state to help carry out federal law.

For example, if the Michigan proposal to simply repeal the state’s marijuana laws - parallel to what New York did with respect to alcohol in 1923 - had passed, Michigan would have been entirely within its constitutional powers, and no international law would have been violated.

The constitutional situation would become murkier if a state did something more complex: if it created a tax-and-regulation system, or even a system of distribution through state stores. When state law directly conflicts with federal law, the Supremacy Clause means that federal law wins. I think that means the federal courts would shut down a state-store system. In addition, the federal government might be able to effectively disable a state’s tax-and-regulation system by using injunctions or arrests to make it impossible for marijuana growers and dealers to comply with state laws. (As Jon Caulkins points out, that would give the feds a hard set of choices: they could prevent controlled legalization, but the result might be uncontrolled legalization.)

If a state were to tax and regulate, and the feds were to mind their own business (i.e., prevent interstate commerce but not mess with strictly intra-state production, sale, and use) then we’d have something much more like real legalization than, for example, the Dutch system is.

In addition, while even five years ago the treaties looked immutable, that’s much less true now. The U.S. could withdraw from the Single Convention and re-acceed to it with a “reservation” about marijuana. That would leave the other parties to the treaty with the option of accepting the reservation or kicking the U.S. out of the treaty system entirely. Or the U.S. could propose amendments to the treaties; we’d have company, though whether enough company to actually secure the 2/3 required for an amendment is doubtful.

So the treaties do create barriers to true legalization, but those barriers aren’t impassable.

Note this is all said without prejudice to the question whether legalization in one form or another would be a good idea. My own view is that some sort of legal availability for adults would, on balance, out-perform the current system. I also think that we’re likely to see national legalization within a couple of decades.

But the post-prohibition policy is likely to look more or less like current alcohol policy - modest taxes and weak regulations, with massive marketing of cheap products leading to widespread drug abuse - rather than the tighter system of high taxes and strong marketing controls I’d prefer.

In any case, I doubt the treaties will play much of a role in shaping the results.

Footnote And yes, this is all in the book, Ch. 10, pp. 145-150, under the question headings “Would marijuana legalization violate international conventions?” “Does Dutch policy violate these international conventions?” “What are the consequences for violating international conventions?” and “Could these international treaties be changed?”