Wednesday, March 04, 2009

judge not

I was sorting through some of my older posts this week, and noticed, when I started this blog, I was filled with questions such as: "What is the correct procedure for crossing the border?" -- "What auto insurance do I need if I retain my Oregon plates?" -- "What documents do I need to take to the consulate to obtain an FM3?"

I am a slow learner. But I think I have the drill down. There are regulations in Mexico, but they are only the starting point. Think of everything that can go wrong. Get more documents than you need. Get more copies. The chances are you will not have something that a specific civil servant in that office on that given day requires. Just be ready to start all over again.

And remember that each encounter with Mexican bureaucracy is an individual performance art.

This has been a tough rule for me to learn. I am not really anal (although some would say that is a nice word for what I am); I am simply a lawyer. My very existence revolves around the rule of law -- it is what separates citizens in the Anglo-Saxon world from being -- oh, say -- French.

I could deal a lot better with that distinction if I did not see it eroding. I was reading an essay by Matthew J. Franck on the ebb and flow of power between the American Congress and the Presidency. Half way through the essay, I started muttering to myself that he was asking the wrong question.

The question is not whether the President or Congress should have more power. My libertarian voice asks: why is either branch grabbing power? The purpose of the federal government is to provide a stable environment for the market and to protect us from invasion. The people can handle the rest, thank you very much.

But that was not Franck's ultimate point. He contends the true imperial branch of the American federal government is the Judiciary: "It has been a tale of judicial aggrandizement at the expense of both the other branches, with significant costs for the rule of law and republicanism."

I pondered that thesis, and concluded that he is correct -- and not merely at the federal level.

My legal expertise is in workers' compensation law. If any area of the law is a creature of the legislature, it is workers' compensation. It is entirely statutory. The executive branch creates administrative regulations, but only within the narrow bounds of the statute.

You would think that the courts would have a very limited range of action in interpreting those statutes and rules.

But that is not the case. The appellate judges often simply come to a conclusion and then create a theory to support what they would like the answer to be.

If you are on the winning side, you claim justice prevailed. If you lose, you see the system for what it is: politicians without accountability. And judges too often act where legislators are afraid. California is a perfect example.

The Mexican drug war brought those thoughts into a different focus this week. A number of Mexican message boards and blogs have picked up on the theme that the violence will not stop until the United States and Canada revise their drug laws by decriminalizing the illegal drug trade.

Whether that course of action is wise or not, it simply is not going to happen. The American and Canadian public are not ready for such a change, and there is no political profit for politicians in either country to take the leadership point on that fire fight.

The only body in each nation that might take such a step is the court system. And that would simply result in the public turning on a Judiciary already suffering from a legitimacy crisis.

We have got ourselves into a pretty mess. But unless we find our way out, Mexico, the United States, and --to a lesser degree -- Canada are going to suffer a terrible price.


Babs said...

If you remember that Mexico operates under Napoleonic law, as does Louisiana, it helps to put the complexity in perspective, at times.

Steve said...

Babs -- Actually, Mexican law is based on the older Roman codes, even though the later Napoleonic code had a decided effect on the post-Independence revisions of the Constitution and its related statutes. In that respect, Mexico has far more in common with the legal systems of continental Europe than with the natural law concepts of the English-speaking countries.

Of course, that distinction does little to explain the bizarre hierarchical thinking that invades Ibero-catholic cultures.

Joanne said...

Actually, Steve, many Canadians ARE ready for a change to drug laws. Canada has a much more lenient attitude towards soft drug use than many Americans do. I would safely say that the vast majority of Canadians under the age of 40 support decriminalizing marijuana in particular.

I did a little search and found the following website:

The short version is that in the province of British Columbia there are between 15,000 and 25,000 grow ops. They directly employ between 90,000 and 150,000 people, which is 5% of the provincial workforce. (The logging, mining and gas and oil industries are considered to be the big employers in BC, but they employ 55,000 persons combined.) 95% of the production is exported to the USA at a wholesale estimate of $4 - 6billion. BC "Bud" is well known and is said to be extremely high quality. BC is the province that produces most of the marijuana in Canada, but it is not the only place.

My personal feeling is that decriminalization will come, its a matter of time. It will happen just as soon as the government figures out how to tax it.


Anonymous said...

"...Going to suffer a terrible price?" How about "already suffering a terrible price?"

The U.S. drug war arguably is costing more in terms of money and wasted lives than the problem it is trying to solve.

Are alcohol and tobacco harmless? Far from it. But when the discussion turns to recreational drugs, the standard always seems to be harmlessness, i.e., that they have to be illegal until they are safe as tap water. And that would be North American tap water.

My guess is that we continue fighting this senseless drug war for some time.


Kim G
Boston, MA
Where we have an annual "Freedom Rally" in the common where the marijuana smoke is as thick as the smog in DF.

P.S. What's with all the ancient photos now floating around the blogosphere?

Steve said...

Joanne -- I wish I shared your optimism. But it is the last line in your comment that I fear most from the politicians. They will not be satisfied until they can act as the drug lords. THat is probably the spookiest scenario of all.

Kim -- As a country, we have got ourselves so scared of life that we want someone (other than ourselves) to be responsible for making our lives perfect. My generation can be the worst when it comes to simply being spoiled. Any country that needs to regulate paint content has lost its center.

As for the ancient photos, see my diatribe above.

Joanne said...

Steve, the Canadian govt already are drug lords. They tax alcohol and tobacco to the hilt. Remember that both those substances are DRUGS.

The Canadian govt allows the use of medical marijuana and even grows it and supplies it for medical use. Of course, the quality is lousy.

Part of the problem is all the govt agents that have a vested interest in the drug laws staying the same. After all, they would be unemployed if the law changed.

When my young adult children are old adults, I expect the law to have changed. In Canada. In the USA, I expect it will remain as it is.