Activist Congressmen---Flouting the Constitution

Have you just about had it up to here [gesture toward forehead] with those activist judges?  Well, what about activist congressmen?  A few days ago I wrote  about Robert Anderholt (R-AL) drafting a bill (HR. 3799 and companion bill S.2082) that would allow the government to do anything it wants in the name of religion:

[...]The Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgment of God as the sovereign source of law, liberty, or government. [...]

Now, we hear that Ernest Istook (R-OK) inserted a provision into the Consolidated Appropriations Act (HR. 2673) that disallows federal funding  to any transit agency that accepts, or allows to be displayed, certain advertisements:

SEC. 177. None of the funds in this Act shall be available to any Federal transit grantee after February 1, 2004, involved directly or indirectly, in any activity that promotes the legalization or medical use of any substance listed in schedule I of section 202 of the Controlled Substances Act (21 U.S.C. 812 et seq.).

When I heard the report during a broadcast of On the Media (streaming audio), I was taken aback by the statement that the disallowed advertising would include anything that promoted the medical use of anything classifies as a controlled substance.  SInce most controlled substances are legitimate pharmaceuticals, it sounded pretty strange to me. 

Now, I have researched it a bit more.  The law actually refers to chemicals that are classified under Schedule I, which is the FDA's category for things like crack cocaine, heroin, etc.  which makes a little more sense.  A little more.  What this law does is allow the display of the government's advertisements that advocate for the War on Drugs, while restricting the display of advertisements that promote a contrary view. 

The On the Media piece includes an interview with Mr. Istook.  He makes a big deal about the fact that the public transport vehicles affected are "taxpayer funded."  He seems to think that this gives them some kind of special status.  Now, the First Amendment issues are fairly obvious:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

But what about the fact that buses and subway trains are taxpayer funded, public property?  It seems that, if anything, public property would be one of the best places for display of material expressing dissenting opinions.  If they have a special status, they should be especially protected, not subject to even the slightest hint of censorship. 

Pete Guither has posted an article with more information here  on his site, Drug War Rant.  There is a nice review  of the issues on the site, Reason, written by Ernest Money.  Mr. Money states:

Last fall Istook was offended by ads in Washington's Metro system in which Change the Climate said the government should "Legalize and Tax Marijuana." So he did what any intolerant, power-mad politician would do: He wrote legislation to ban the speech he did not like, not only from Metro buses, trains, and stations but from every mass transit system in the country that receives federal funds.

The Good News Blog has a post that reviews what the ACLU has to say about the legislation, citing a WaPo article  on the matter.  Loki at Infojunkies  cites a similar article  from the AP. 

The NORML site has an article  as well.  MPP has posted a copy of a letter  (PDF) that is rather amusing to read.  It is a letter, written to Istook, that expresses the opinion:

Your amendment is an insult to the spirit of democracy and the belief in the freedom of ideas upon which this nation was built. You may be satisfied with this nation's marijuana laws -- and the fact that approximately 700,000 Americans are arrested each year for possessing a substance far less harmful than alcohol -- but that does not give you the right to deny Americans the opportunity to discuss and debate possible changes in the law.

What makes your sponsorship of this amendment even more outrageous is the fact that you accept campaign contributions from the alcohol industry. Like the leading anti-marijuana zealot in the U.S. House of Representatives, Rep. Mark Souder, your campaign committee has received a large sum of money from the National Beer Wholesalers Association PAC. (Interestingly, the NBWA contributed $5,000 to your campaign just a few months ago, in October 2003. Rep. Souder received $7,500 from NBWA during the 2001-2002 election cycle.) Perhaps you could explain -- in a public debate, perhaps -- why you accept money from the purveyors of a relatively more dangerous drug¹ while denying the First Amendment rights of people who simply want the public to reconsider the laws prohibiting a less harmful substance.

1For example, the most recent issue of the journal Addictive Behaviors contains a study demonstrating that
the use of alcohol is associated with significant increases in the likelihood of domestic violence against
women, while marijuana use is not associated with any increase. (In fact, the likelihood of physical
aggression appeared to decrease slightly with the use of marijuana.)

One could argue about the accuracy of their allegation that alcohol is more harmful that cannabis.  After all, the harm from a substance of abuse varies widely from person to person and is greatly affected by the pattern of use.  Regardless, their point emphasizes the fact that there are valid points of debate here. This underscores the need for an open forum for that debate. 

I am less amused by the paradox of supporting alcohol while criminalizing cannabis, than I am by the paradox of conservative congresspersons criticizing activist judges, while there are congresspersons who clearly are equally activist.  Federal elected officials swear to uphold the constitution, yet some go ahead and flout the constitution with apparent indifference.