Will We Tolerate Democracy?

Below is my column today in USA Today on some of the state referendum votes last week. While the presidential election was understandably the focus of media commentary, state referendum votes held some surprises. At a time when a majority of citizens view our political system as dysfunctional and unresponsive, these referendums show that citizens can still take direct action in seeking change. Here is the column:

Finally, change we can believe in. Last week, voters came together in a grassroots movement to demand changes in their government and in their lives. No, it was not the Tea Party movement, which imploded in a spasm of gaffes and extremist rhetoric. It was certainly not the “hope” of the Obama campaign, which for most liberals was an excersise of “hope over experience.” Rather, citizens in various states have crossed party and ideological lines to challenge the federal government on issues such as marijuana and gay marriage. In a triumph of federalist principles, states are going their own way on important social issues, but this is not the type of “change” either party wants to believe in.

Ironically, for almost four years, states’ rights have been a focus of national politics as Republicans denounced ObamaCare for its expansion of federal power. Now, many of those same Republicans are opposing the right of states to reach their own conclusions on issues of same-sex marriage, assisted suicide and legalization of marijuana. Likewise, President Obama has spent the past year trying to repair damage with liberals and civil libertarians over his continuation of Bush policies in areas ranging from national security to medical marijuana. Yet, after going silent before the election to win back liberals, the Justice Department indicated the day after the election that it would continue its policies on marijuana.

It is hardly news that principle is a stranger to many politicians. However, citizens across the country still believe in federalism, the idea that their states should be able to choose their own positions on social and criminal issues. They have the U.S. Constitution on their side. The 10th Amendment states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” James Madison believed that the states were safely behind a federalist firewall to protect against the “ambitious encroachments of the federal government.” Indeed, Madison assured his contemporaries that it would take a “degree of madness” for the federal government to usurp the power of the states. If that is true, we are truly living in mad times.

State politicians have largely yielded to the madness, but citizens appear to have lingering notions of self-determination. In a couple of areas, citizens have fought back and have asserted direct control over their laws and their lives.

Medical Marijuana

Last week, Washington and Colorado became the first states to legalize recreational use of marijuana. In addition, Massachusetts became the 18th state to legalize medical marijuana.

Polls show 74% support medical marijuana. And 56% support regulating pot like alcohol. This makes marijuana one of the sharpest divides between citizens and their government. Despite the fact that only 15% of voters support continued prosecution of medical marijuana cases, Obama has continued the Bush scorched earth prosecutions..

The push by voters for decriminalization is likely only to increase. Washington will allow the sale of pot, which could bring in taxes worth hundreds of millions of dollars. Unless blocked by the Obama administration, that type of revenue (as well as the savings in not prosecuting pot cases) is likely to get the attention of other states in a bad economy.

Despite three out of four citizens supporting the use of medical marijuana, Congress and the White House remain in absolute lock step in expending resources and personnel in the prosecution of these cases. States are expected to adhere to the federal policy regardless of the wishes of their citizens.

Same-Sex Marriage

Last week, Maine, Maryland and Washington voted to legalize same-sex marriage, the first such recognition made by voters as opposed to legislatures or courts. They joined New York, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington, D.C., in the recognition of gay marriage. While the Framers would likely have been surprised by the notion of same-sex marriage, they would have celebrated the role of these referendums. Yet, many conservatives (including self-described advocates of federalism) seek a constitutional amendment to take away the ability of states to recognize such unions.

The effort is even more problematic as an amendment to deny rights as opposed to expand them. Most amendments in the Bill of Rights expanded rights — part of a noble and consistent trend of greater liberties in this country. Faced with citizens who want to expand the rights of their fellow citizens, these fair-weather federalists are moving to stop more states from joining.

Citizens aren’t likely done demanding self-government. Efforts to enact local policy on assisted suicide and deal with global warming issues will continue despite federal policies and laws. This taste for self-determination could become insatiable. Once you realize you have a voice, you tend to want to use it.

Jonathan Turley is a professor of public interest law at George Washington University and a member of USA TODAY’s Board of Contributors.

November 13, 2012

143 thoughts on “Will We Tolerate Democracy?”

  1. http://www.palmbeachpost.com/ap/ap/florida/fla-man-distraught-over-election-kills-himself/nS6Nw/

    I’m putting in a word here that I think this past cycle was soooooo *&*%$$$*#@ toxic in rhetoric and lies that this article did not surprise me in the least. I think the currently acceptable level of toxic discourse is causative to much fear and harm now present in the population post election. I believe that those who run for office have an absolute obligation to inform and educate the public honestly and sincerely and up front regarding their platforms, promises and party line.

    and blah blah blah too!

  2. Part of the reason that we have difficulties with government is thst it is impeded by the structures and strictures dictated by law; and also by the bureaucracy itself. In addition we have the problem of who does what with whose money. Fed, state, county, city, private.

    Here’s an example from NC, regarding regulating eligibility for federal funding of care for mentally impaired persons with different degrees of handicap.


    Besides the NC problems, which also illustrate the overarching problem named above, this provides room for speculation on whether the cost of administration exceeds by far the funds allocated for assisting these persons.

    Hope that does not sound tea-baggish. Just seeking the golden way is all.

  3. Comment on re-post
    “Gene H.
    1, November 13, 2012 at 9:53 pm
    I’d like to point out that traitor is a very specific charge and that socialist countries can be democratic Constitutional representative republics – socialism is as much an economic model as it is a political model and our Constitution enshrines no particular economic model just as it doesn’t enshrine the Democratic or Republican political parties.”

    Amen!: FYI, Sweden has a parliament whose members are elected and represent the district from which they are elected. All citizens (with exceptions) are automatically voters.

    The nation has a constitution which can be changed by two succeeding decisions of the parliament, but that is not done hastily nor often. It is the law by which all other laws are subservient. Most notably in contrast with the USA, it stops all investigations as to press sources.

    Socialism appears nowhere in the constitution, only in party platforms. It is regarded by even non-socialist party supporters as a form os sharing costs, even within the private sphere, and as assuring that there are reasonable compensation and safeguards for all citizens.

    The socialist party has not had a 50 percent majority since decades.

  4. There is a big problem on the horizon in Washington (no idea about the Colorado initiative) in the form of DUI enforcement.

    Initiative 502 enforces a 5ng/ml “THC” blood level and there is absolutely no way to prove “impairment” using a blood test as the “THC” level is actually a measure of metabaloids produced by the body as it processes THC. The metabaloids are a byproduct (they can remain in the system days after use) and most assuredly not an intoxicant, which renders a blood test useless in determining impairment. In addition, the measure provides that anyone under 21 cannot have any traces of “THC” (again, the metabaloid) in their system, which puts this measure squarely in conflict with the state’s medical marijuana law.

    I think it a bit premature to light up a bong and bake some brownies in celebration of freedom; this law could actually expand the power of the state in ways that the voters and proponents of the law may not have intended.

    Here is the text of the bill:


    Part V deals with DUI.

  5. Google confirms: ‘Government surveillance is on the rise’

    Published: 13 November, 2012


    “Google has released its bi-annual transparency report and says that the government’s demands for personal data is at an all-time high.

    Elsewhere in the report, Google says it’s more than just surveillance of individual users that is on the rise. The US has also been adamant with censoring the Web, writing Google five times between January and June to take down YouTube videos critical of government, law enforcement or public officials. In regards to the five pleas to delete seven offending videos, Google says, “We did not remove content in response to these requests.””

  6. I’d like to point out that traitor is a very specific charge and that socialist countries can be democratic Constitutional representative republics – socialism is as much an economic model as it is a political model and our Constitution enshrines no particular economic model just as it doesn’t enshrine the Democratic or Republican political parties.

  7. “Last week, voters came together in a grassroots movement to demand changes in their government and in their lives. ”


    Just seems appropriate, overdue, and beautifully deja vu:

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