Constitutional amendments matter

Last week, I wrote about how voting yes on Ballot Issue 1, which would allow the Legislature to call itself into special session occasionally—rather than relying on the “good will” of the governor—will increase the people’s power. No better proof of this is the high-dollar PR effort put on by the paid lobbyists at the Chamber of Commerce and the insurance brokerage group mislabeled the Farm Bureau.

There are three other proposed-constitutional amendments up for a vote.

Issue 2 raises the bar for passing both citizen-created statutes, known as initiated acts, and constitutional amendments. The change would require a 60 percent popular vote, instead of a majority, to pass either, even though they’re very different animals.

Raising the limit to pass statutes makes no sense. Those should always require only a majority.

And while I understand the desire to make more difficult alterations to the state’s constitution, the cat’s out of the bag on this. It’s has been amended over 100 times—too late now to go cold turkey.

Moreover, it’s already not so easy to get an initiative of either form on the ballot in the first instance, and I’m hesitant to make our system of government any less democratic than it already sadly is. The people are in need of greater control of our government today, not less. Because this proposed amendment both hews in the wrong direction and makes no distinction between two very different plebiscites, I will vote no on it.

Issue 3, proposed by conservative State Sen. Jason Rapert, would strengthen religious freedom. I support this proposal.

This proposed amendment enhances Arkansas’ Religious Freedom Restoration Act (RFRA) and then incorporates it into the constitution, so that its continued existence won’t be completely dependent on the protean preferences of a potentially fickle Legislature.

RFRA came about to protect religious liberties given years of shameful minimization of the religious-freedom clause of the First Amendment by the United States Supreme Court, as well as state supreme courts. The Court’s well settled historical weakening of the clause—by conservative and liberal judges alike—flowed from its willingness to prioritize states’ often dubious claims of compelling needs to interfere with our religious rights.

Simply put, RFRA is more protective of your religious freedom than current constitutional provisions. It protects against indirect attacks on religious beliefs. The First Amendment does not. Anyone saying otherwise is either being misled or misleading you.

The United States Supreme Court, in a case involving Arkansas, emphasized this very fact: “Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment.”

And we saw this greater protection in action when Arkansas comically argued in the United States Supreme Court that a half-inch beard worn for religious purposes should be prohibited because it could be used by a prison inmate to “alter his appearance, thwart identification, and conceal contraband.”

When the convict objected and relied on a federal statute substantively identical to RFRA, the Court issued its ruling in favor of religious liberty explicitly relying on the RFRAlike law. The Court made this clear, stating: “Several provisions of [this statute similar to RFRA] underscore its expansive protection for religious liberty.”

Of further note, the Court held “the argument that … staunching the flow of contraband … would be seriously compromised by allowing an inmate to grow a half-inch beard is hard to take seriously.” Yet Arkansas made exactly that unserious argument, given the historically poor state of religious protection.

Never underestimate government’s ability to justify trampling your rights in exchange for the alleged good of bureaucrats, uh, the people. As a practicing Jew, I understand the challenges of religious observance in the face of bureaucratic interference, which I’ll discuss in the future.

Rapert’s proposed amendment will make more enduring the religious-freedom protections of RFRA by elevating an enhanced version of it into the Arkansas Constitution. That enhancement provides greater safeguards of religious beliefs than RFRA, and much greater protections than the constitution, by affording citizens the right to challenge any governmental burden on religious observance irrespective of whether the burden is direct and whether or not the burden is substantial.

Incidentally, some erroneously argue that the removal of the term “substantial” somehow would cause the amendment to be less securing of religious liberties, not more. That’s false. Currently, citizens have to demonstrate a substantial infringement on our religious rights in order to succeed in court. That’s a high bar to chin. Under the new law, citizens only would have to show mere infringement to succeed in a lawsuit against the government. That’s far better!

Similarly, some mistakenly believe that because they wish that the current version of the constitution well protects religious beliefs, we should stick with it. This isn’t Oz, though, and clicking your heels three times isn’t going to change the current law’s universally accepted meek application. If you want to change the law, you need to change the law. It’s just that simple.

Issue 4 is the Responsible Growth’s cleverly named proposed constitutional amendment to legalize recreational marijuana. It would allow selling cannabis to people 21 or older, prohibit advertising to children, draconianly limit the number of licensed businesses—competition be damned—and not allow homegrown weed.

I oppose the wholesale legalization of marijuana. We’ve seen too many problems in jurisdictions that have chosen otherwise. That said, proponents are not without arguments, chief among them freedom. Perhaps in the future, as this national experiment (pun intended) plays out, my views will change. But at this juncture, it’s a puff too far, even in the state known for not inhaling.

Further, the oppressive monopolistic elements in the proposal are awful. The law would make pot legal but then dramatically limit the number of government-authorized producers and sellers. So, the proposed amendment actually makes marijuana only “kind-of” legal. What could go wrong with that?

Here’s what. Unlicensed competitors would obviously still exist, thus continuing the very black market that legalization is designed to curtail. And with that black market, we’ll continue to have the crime that legalization would have been adopted to eliminate. After all, amendment notwithstanding, unlicensed sellers nevertheless would have to resort to violence as their only enforcement mechanism, because they wouldn’t be able to go to court.

But the worst part of the proposal is the ban on homegrown grass. Did the Chamber of Commerce draft this scheme? It seems like every time we look around, we have some rich cabal telling us that big business operating in cahoots with government must be exclusively in control of the means of production. Was it Groucho who said that tragically ridiculous claim? No, wait, it was the other Marx: Karl.

On this very point, if I would support anything regarding pot legalization at this juncture—although I don’t—it would be homegrown Mary Jane used in one’s domicile. The home, after all, is the castle.

Yet, somehow the unholy alliance pushing this amendment that seemingly combines a Learyesque view on drugs with a libertarian notion of freedom, nonetheless, wants big brother to dig deep into your home’s crevices and dictate that you can’t cultivate cannabis there.

Issue 4 has its priorities entirely backwards. Creating monopoly power for big business that bribes government for the “right” to exploit the people is exactly the condition that makes more challenging the claim that folks need to maintain sober minds. Should that kind of Orwellian policy be foisted upon us, maybe we all should get baked from time to time.

This is your right to know.