My column this week in Forbes elaborates on a theme I discussed last week in this blog.
I am not a big fan of prohibition, or the income tax (16th Amendment) before it, but in some sense these come from a better time. Instead of dealing with the Constitutional problems of these initiatives by having a series of judges stare at the Constitution with their eyes crossed until the problem disappears, they actually wrote and passed a Constitutional amendment. The took the wording of the Constitution seriously.
Consider alcohol prohibition. Today, would we even bother modifying the Constitution? After all, we’ve driven a forty year war on drugs — with massive spending, highest in the world imprisonment rates, militarization of our police, and frequent slashes into the heart of the Fourth Amendment — with nary a hint of the need for a Constitutional Amendment. In fact, in Raich, the Supreme Court ruled that medical marijuana legally (under state law) grown, sold, and consumed in California could still be prohibited by the Federal government under their Constitution powers to regulated interstate commerce. It seems almost quaint today that we sought a Constitutional change for Prohibition.