Philosophy, Law and Politics

To Legalize, Or, Not To Legalize?

In discussing the current debate of whether the use and sale of marijuana should be generally allowed in each of the 50 States, and no longer be deemed a criminal activity, requires that thought be given to American history and traditional theories of the law. And, perhaps our debate should focus on the history of Prohibition, last century.

Currently proposed legislation before the U.S. Congress asks if the Federal government may, or should, dictate that the use of marijuana is legal conduct for every citizen in every state. Or, should the Federal Government respect the aged-old American doctrine of States Rights and the prudent theory of experimentation within and among jurisdictions, whether they be the Federal judicial Appellate Circuits, the States themselves, or the various political subdivisions therewithin?

As citizens, we must ask in what manner marijuana differs from the time honored American custom of enjoying fermented and distilled spirits – alcohol. If marijuana is properly legal in the United States, regardless of locale, for social, and not only medical, purposes, what is the scientific rationale for permitting it being criminalized in any jurisdiction within the country? If legal in any State and deemed safe by our scientific community, is there a valid legal rationale for treating the use of marijuana differently from the current regulation of our use of alcohol?

Traditional grassroots, self-governance of communities in America is the foundation of our democracy, our representative republic. Governing jurisdictions, as small as towns and villages, may dictate legal policy as to the sale and use of alcohol within their jurisdictions. Yet, they may not proscribe the use of alcohol. This has only been done and repealed by a revision of the U.S. Constitution. Marijuana, like alcohol, should properly be regulated below the Federal level by State and Local Governments only as they regulate commerce within their boundaries. Like alcohol, marijuana requires more regulation than English muffins and wheat bread. Such regulation, though, results from theories of corporate and business structure, and the proper purposes of land use management – zoning restrictions.

If legal in one State, marijuana should be legal in all. And, the existence of the 50 States, and our various political subdivisions and territories, permits American capitalism to experiment. Various business forms may evolve from the art of the “dry county,” the State owned and or regulated, stand alone “brick and mortar” business concern, or the State regulated, corner shop in the interstate or international grocery store.

And, there cannot be an argument for not fully expunging the criminal records of conviction and time served for offenders penalized for personal expression before their governing officials “saw the light.” It goes without saying, then, that, too, all criminal defendants currently “serving time” for marijuana only offenses should be released through existing transitional, reentry programs. Not doing so would be merely a creative theory of law ex post facto.

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

Partisan Politics Be Damned!

I am no longer registered to vote in the United States. I formally resigned my registration in writing last year. I decided that I could no longer be silently accountable for the opinions of any one candidate or office holder for whom I may have voted.

My own political views are not of any one political party nor of any one political party platform. Last year, at 56 years of age; as a lifelong Democrat; as a former student President of the Wellesley College Democrat Club; as an eldest child and only daughter of a retired History teacher who “rubber stamps” the Democratic Party sample ballot at the polls, and who once served as a Democratic Ward Chairman; and as, myself, a former Democratic Precinct Executive who served by appointment in an unrepresented district in which I did not reside and, consequently, in which I could not stand for election, I formally switched parties and now pay national dues to the GOP (the “Grand Old Party” or the Republican National Committee).

I believe that the Republican Party in America professes and is held accountable for a belief in fundamental principles and the rule of law. Thus, their members must offer arguments and critiques based upon an assertion of fundamental principles and reasoning, supported by fact. My personal views and opinions will always differ in some respect from those of others, regardless of political party. Yet, neither candidates nor the rank and file members of any political party should deem themselves possessing a right to deny the necessity and merit of method, regimen, logic, and procedure, for without these guiding principles of democratic society and government, we will not have justice, equity or fairness, no less an equal right of participation.

American Democrats do profess these notions. Though, even with the Clintons, Obamas, and U.S. Attorneys General Reno, Holder, and Lynch, American Democrats expect to be believed and supported merely upon offering time honored liberal sermonizing, without reasoning, without a demonstration of fact, and without a suggestion of specific future action, conduct or policy reform proposals to support their time honored liberal sermonizing. For all the Democratic colleagues across the nation, one would imagine that every Democrat standing for election might easily obtain a great, new legislative proposal for his or her back pocket that could be brought before the public for discussion during the campaign season. The long honored Democratic Senator Robert C. Byrd carried a popularly available edition of the American Constitution in his breast pocket. Where is theirs? Most Republicans are not so flawed.

Lori Gayle Nuckolls, Esq.

Do Young People Understand the Creation of the Law?

When looking at our three branches of government in America this electoral season, the role, place and stature of the executive, legislative and judicial branches should be well studied, Federal, State and Local. All citizens and residents, of all ages, should know the names of our governing officials from all three branches and their role in our community.

In guiding our young people, we need to go beyond a mention or two of the name of our Congressperson or the name of the Mayor or a member of our City Council. Children in this the second decade of our 21st century are truly knowledgeable of current events in the modern era, more so than ever in America’s history. They have seen the most recent national elections and campaigns. The know by first name Barack, Bernie, Bill, Colin, Condoleezza, Eric, George Sr., George W., Hillary, Loretta, Madeleine, and Mitt. They know that the current President is Donald and that the next might be Joe III.

Yet, we must share with them more than this. Especially, our young people need an acknowledgment and appreciation of the scholarship of the judiciary. Popular understanding of our judicial system and its stewards guarantees the freedom of thought of those who appear before them as well as of our nation. Judicial decision making in the public interest benefits from a knowledgeable public.

A truly fundamental common law subject as the creation of a contract may provide a basis for an objective discussion of how we learn from our Judges and so gain an equal understanding of the three branches of government in America. Contract law is of general interest, noncontroversial and permits discussion of the art of the judiciary.

An example is taken from a legal opinion written by Federal Magistrate Judge Michael Newman of the Southern District of Ohio. Judge Newman is the recent President of the Federal Bar Association. His term in private legal practice prior to the bench was as a law firm Partner in Cincinnati and was lengthy and well accomplished.

In Traton News LLC v. Traton Corp., No. 3:11-cv-435, 914 F. Supp. 2d 901, (S.D. Ohio 2012), Judge Newman expressly acknowledged that the case posed “an issue of first impression in [his] Court.” 914 F. Supp. 2d at 909. Namely, the question newly presented was whether a person using the Internet and who accesses a certain website, in doing so, agrees to the Terms and Conditions set forth in the website as specified by the Terms and Conditions. And, would this create a binding agreement that would support personal jurisdiction pursuant to the governing Terms and Conditions? Judge Newman found that this did not create a contract for want of consideration. In this instance, the Internet user accessing the website did not receive a benefit supporting the existence of a bilateral contractual obligation.

We must appreciate such judicial thought and show such appreciation with greater encouragement of participation in community and government discussion? Popular understanding that Judges impart wisdom when new questions arise is needed. Civil peace and understanding require that young people learn American government at a young age.

In Cincinnati, do young teenagers understand the theory of the judiciary and its role in fashioning our common law from our amorphous popular thinking? In theory, Judges turn custom into law, and in fashioning the law, they educate our customs. The scholars of William Blackstone argue that our customs may only become common law if their tenets conform to our sense of natural reason and justice. Do we teach this to our young people so that they may grow up to understand an increasingly more complex nation, with a far more applicable hierarchy of institutions of higher education in that all of us within the 50 states must defer to the established hierarchy of universities and colleges? The young in turn may guide their parents in an increased understanding of the modern world and a respect for the judiciary.

The American public must be taught to defer to the constitutional function of the judiciary: the administration of legal decision making as to residents, citizens and government. With the fragile delicacy of Marbury v. Madison in its creation of our doctrine of judicial review, all within our nation must respect the separate, equitable power of the American Judiciary as to the executive and legislative branches of government. Popular understanding of our popular self-interest, in a country whose government force and power are derived and ensured only as individuals understand our principles of government, will only be stronger.

Lori Gayle Nuckolls, Esq.

America Relies Upon a Learned and Informed Public

In the United States, as a country of a majority population that is not indigenous to its North American soil, how do we reconcile nationalism and democracy? As a community of diverse ethnic origins and heritages, diverse faiths, and diverse periods of time resident within the county, can an existence of a nation-state community ever be achieved? Does the theory of the “melting pot” of an immigrant nation undo properly existing cultural lines of identity that are distinct, have merit and are centuries old?

We should encourage a community diverse in cultural identity that lives under the governing principles of American democracy: equality, freedom, and justice. In America, its people have freely chosen to reside under America’s governing principles. Citizenship and the rights of noncitizen residents transcend the diverse cultural identities of national origin. America’s governing principles, constitutions and laws create an equal right to personhood and identity that transcends governmental decision making based upon stereotypes and, especially pejorative, presumptions. The rule of law does not look to one’s culture, ethnicity or religion.

The governing principles of America are created, respected and maintained by an academically learned intelligentsia that exercises a just governance of the majority. An educated public and deference to individual merit and ability are the foundations of a democracy. A state cannot survive without an educated public, whether possessing one or many national identities.

In our world, only representative democracies are viable forms of government. Direct democracies defy the economy of scale required for complex decision making and regulation in the modern age and are not even attempted. Dictatorships, with the veil of legislative and military decision-making especially during the post-colonial period the 1900’s, can neither demand nor evoke a legally compliant population of self-governing individuals.

Without a public that understands the principles of America as a country from a young age of early education between grades 4 to 6, with reaffirmation in between both grades 7 to 9 and grades 10 to 12, our public will not be able to participate as citizens and residents as they engage in specialized careers of science, business and nonpublic policy fields. Thus, all college students should have a required course in the fundamentals of American government.

All in America bear the responsibility of treating all among us as free and equal, with rights and privileges of fairness and justice. Our world is complex, and all Americans must be sufficiently learned to debate and understand America and their own place in the world.

Lori Gayle Nuckolls, Esq.

Are Our Politics Determined by Money or Self-Reflection?

As someone with a theoretical, rather than a practical understanding of our political system, I ask how we reconcile the popular view that money is ever present in the Republican party with the popular view that money dominates both the Democratic and Republican political parties? Some believe that only with the overturning of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), and the enactment of new Federal campaign contribution limits on individuals and corporate entities, will American government be accountable to the electorate. The influence of the wealthy does dominate and determine our elections. Yet, there are large donors on both sides who are benevolent and offer a view of the common good in which they sincerely believe. And, some on both sides are less sincere and more self-interested.

Journalists covering campaigns do bring controversies to the public regarding those who are influential by virtue of political power derived from financial assets and not a given expertise or experience. So, the public is aware that the views of the majority do not determine elections, and that voters defer to those with known views who they feel have a better vantage point from which to decide what is best for the country. Even in the American history of not long ago, the public conceded to the Railroad Tycoons and the FDRs with an appreciative deference, though a resentment resulting from socio-economic status. Since that time, the majority has sought to cast off the yoke of paternalism. Our society possesses a more equal sense of opportunity, as well as of access to information and knowledge.

In America today, there is a greater sense of adequate materialism and a secure safety net. Yet, are the American working and middle classes of today more familiar with the profound blessings and power of the highly educated who have an understanding and role in society which they will never achieve themselves? They do not truly have economic want and they possess opportunities for their children of which they could not dream. Is their resentment, though existing without want, producing a disrespect for hierarchies and authorities generally?

Do those of the working and middle classes now resent the very academic institutions which produced their individual freedoms and the ability to exercise them? Are they not voting because they feel truly unable to duly consider the issues of government for want of formal education in the very complex and specialized subject matters citizens consider when evaluating candidates and reaching decisions on issues of referendum? As they do not participate, they cease to have a vested interest in the growth and development of their communities, commerce suffers, new residents are sparse and the communities decline.

In “off-year” elections, when voters are not moved by the issues of a Presidential campaign, few vote. In 2014, 40% of those eligible to vote in Ohio voted. This is local government by an interested few. Would more have a sense of personal interest in government if we brought before them the ideals and lessons on the manner in which they can affect government and their communities? With a sense of personal efficacy, would they then appreciate what they have amassed, can amass and what their children can amass.?

Even if new campaign contribution regulations are elusive in the anticipated future, I think that perhaps a sense of the efficacy of individual participation in politics might be achieved if we look to the basics of the American philosophy of government and encourage people to ask those offering ideas and public policies to explain how their suggestions are premised upon and strive to achieve our fundamental principles. To do this, we must frequently discuss the ideology of American representative democracy and ensure that all citizens and residents of our country, regardless of age, may look within and develop a sense of self-governance that believes in America. This November, and in the interim days, will you vote and or express your views and opinions?

Lori Gayle Nuckolls