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The Reverse Chesterton Fence
For a movement that prides itself on nuance, the Left is remarkably — if unsurprisingly — uninterested in questions of cost, externality, and unintended consequences. Once they’ve identified something as a good, the only remaining issue is marshaling the will to see it through; the details will sort themselves out.
The Right, however, generally accepts that life is complicated. Ideas have consequences, we’re apt to say, often with the strong subtext that they’re probably not all those we intended. As such, we’re more likely to resist the urge to fuss with (seemingly) imperfect things, lest we discover afterwards that they were far more beneficial than we understood or appreciated.
But this can cut the other way too. In the current issue of National Review, our own — how I love saying that — Kevin Williamson brings up an interesting example of this sort of reverse–Chesterton fence in his report on the effects of Colorado’s marijuana legalization:
[But how do we] resolve the realities, which are that Colorado wants legal weed while Nebraska and Oklahoma do not, and that the presence of black markets in prohibition states ensures the presence of black markets and gray markets in legalization states?… While one can sympathize with the desire of people in the prohibition states to keep drugs out of their communities, it is more difficult to sympathize with their desire to avoid paying the freight for their decisions — especially when their prohibition imposes costs on legalization states just as legalization states impose costs on them.
That is, it’s not just Colorado’s (relatively) new idea of legalization that has unintended consequences but also the (relatively) old idea of prohibition in the neighboring states; i.e., just as Nebraska and Oklahoma can blame Colorado for the increase in smuggling (and the attendant costs) caused by its legalization, Colorado can blame Nebraska and Oklahoma for creating conditions that make smuggling and other lawlessness attractive.
Now there’s a lot of distance between making this sort of observation and concluding that national drug legalization is good and/or moral policy; I’m not making that case here, at least now. But when we consider unforeseen consequences, we should give thought not only to those that might be caused by new action, but to those caused by old ones.
Published in General
I didn’t mean to imply that they’re the only cause.
However, the particular complaints Nebraska that Williamson described — people illegally acquiring 100s of lbs of weed to drive over the border — are likley intimately connected with those state’s prohibitions.
Your point being…?
Ninth Amendment.
Simpler times.
I believe Manny was suggesting that just because we don’t think a law is appropriate or constitutional doesn’t mean it’s not the law. I believe our constitution puts drug regulation in the domain of state and local governments, not the federal government. None the less, it drives me batty that states have openly legalized marijuana in their jurisdictions. The federal ban is law and has been deemed constitutional in the manner we’ve chosen to decide such matters. States shouldn’t get to act in violation of federal law, and they should not be allowed to garner proceeds from illegal activity. If I were POTUS, my AG would be arresting state officials on racketeering charges for collecting tax revenue on illegal drugs. Immediately after I made my point, I would endeavor to eliminate the federal ban on the stuff.
That said, I believe it’s within a state’s right to eliminate their own proscription against marijuana, and/or decline to enforce the federal one. Since the effects on NE and OK of CO’s explicit legalization are indistinguishable from the effects of implicit legalization through non-enforcement, I don’t think there’s a winning case against CO. NE’s and OK’s real gripe is with Obama’s decision not to enforce federal law. Sound familiar?
I can tell you we are not very happy about it in Kansas either. I really don’t care what you do on your side of the fence, but when you come over on my side and break my laws we have a problem. We really don’t have to over think this.
The whole idea of Chesterton’s fence is simply beyond liberals most Republicans and libertarians. If conservatives don’t grasp it, they’re not conservatives. However, the notion complicates reform because it requires that serious reformers unpack millennia of cultural evolution which, of course can’t be done at a national level in a country of over 300 million of the most diverse people unearth. Drug policies, however, aren’t so old and evolutionary; they started at the top not that long ago and the disaster of ill designed policy was predictable. The unintended consequences are obvious and ubiquitous, but they fall on foreigners, ghettos, police forces, and border towns, not on most of us except as tax payers. Normally I’d say push the decision to undo dumb stuff to local levels so the folks can figure it out, reravel the unraveling, plug the holes in Chesterton’s fence, but drugs are different. Liberalizing them in pieces both geographical and chemically introduces incredible complications. The drug war is a disastrous failure by any human measure but we haven’t even had a debate on it except in an unserious way. We can and must change it at the federal level where the problem began but let’s at least think about it beyond treating drugs as either chewing gum or the moral equivalent of murder.
Thank goodness. Settlement of new farmland would have taken much longer if homesteaders had to remove stumps and boulders the old way.
It’s a fine example. The issue isn’t whether we have a right to use drugs or not. I’m not making that case in either direction. I’m pointing out an inconsistency in our view point on whether Colorado has a responsibility to help neighboring states uphold their own laws.
Again I ask, if the federal law in question were regarding firearms, would you have the same view? Say federal law banned the sale of handguns above a certain caliber to anyone, but a specific state specifically allowed said sales and collected tax revenue on said sales? Would you still send your AG on the state officials?
It’s really the same question, in my mind.
When statements like this are made, what is usually meant is “If conservatives don’t grasp it as I do, they aren’t conservatives.” So how do you understand the notion of Chesterton’s Fence?
Yes, that’s right. I haven’t been back until today. We have tons of laws on the Federal level, and they are laws. Obamacare is a perfect example. I think it’s wrong headed, I can’t stand it, and I certainly don’t support it. But apparently it’s constitutional, even the fact that they can force you to buy something you don’t want. I think many people’s perception of their liberty is off. Congress can pretty much make any law they want as long as it’s specifically not mentioned in the constitution/bill of rights.
I don’t think it’s a particularly libertarianish thing to say that this is backwards: the federal government is — or, at least, was intended to be — one of ennumerated powers. That is, Congress is only empowered to do those things listed in Article 1, Section 8 of the Constitution. All others powers are reserved to the states and the people.
Megadittos.
Except for things that might upset the folks in neighboring states?
Well, I wasn’t making a constitutional case.
It’s not the same question in my mind. The reason I think federal prohibitions on drug use and sale are unconstitutional is the same as for many on this thread – it’s not an enumerated power. Unfortunately, there are many such laws. If the rule of law is important, then stability and consistency in enforcement of those laws is also important. The issuance of executive orders to stop enforcing large numbers of federal laws inconsistent with constitutionally enumerated powers would likely be destructive. Are there any such laws I might decline to enforce? Possibly, but any such law would have to be causing considerably more harm than it’s preventing. While there’s a case to be made for it, drug prohibitions wouldn’t make my list.
Guns, on the other hand, are explicitly protected by the 2nd amendment. If congress banned individual gun ownership when I was president, I would veto it. Should they override the veto, I would issue an executive order prohibiting federal agencies from enforcing it. If SCOTUS upheld the law, I wouldn’t budge. Congress would have to impeach me.
However, this is different from my position on pot. In the case of guns I would be maintaining the status quo. In the case of pot I would be upturning the status quo. If, on the other hand, congress passed a law banning individual gun ownership in 1960, it was upheld by SCOTUS in 1962 because the 2nd amendment only applies to state regulated militias, and I were elected president in 2016, then I would enforce that law, even though I disagree with the constitutional interpretation. My job in that case would be to try to overturn the bad law.
This shows the problem we sometimes encounter with thought exercises. From a strictly logical perspective, my distinction seems rather weak. In the matter of practical governance, however, I think it’s very important.
Fair enough. Chesterton meant it as advice to reformers. Know why an institution, or law was created, what role it plays before reforming or deforming it. Burke shared the notion as did Hayek in the Fatal Conceit. I think it is essential for conservatives to understand Burke and Hayek. Hayek denied that he was a conservative, but he was thinking conservative as European elite’s self preservation. Hayek’s view of cultural, economic and moral evolution which he got from Adam Smith as elaborated by Darwin, is a more technical elaboration of Chesterton’s observation and Burke’s Reflections.
Except for trade between the states.
The US federal government certainly has the constitutional authority to stop Colorado marijuana from leaving Colorado (as long as it doesn’t use unreasonable searches when enforcing that prohibition).
The US federal government would also have the constitutional authority to tax marijuana into the ground, even when the marijuana isn’t crossing state lines.
By an amazing coincidence, I just came across this article:
Marijuana Growers Face 90 Percent Federal Tax Rate, As Deductions for Expenses Not Allowed by IRS
Source: http://blog.heartland.org/2015/06/marijuana-growers-face-90-percent-federal-tax-rate-as-deductions-for-expenses-not-allowed-by-irs/
“Respect the classics, man.”-Filmore