Many people might argue that this is a weakness of the US constitution, not a strength. Much like the fact that it is the oldest constitution still in use.
Maybe. I think there are some arguments to be made that the brevity of the constitution leaves it open to multiple interpretations, and that can cause problems. But I also don’t think that a Constitution should be so specific that it effectively eliminates lawmaking functions. Constitutions should, in general, be statements of principles and rights and institutional structure. They shouldn’t be in the business of defining the difference between “hemp” and marijuana," or laying out broad regulatory schemes for a single set of products.
From your link
- They’re claiming that this more than one subject because it involves both marijuana and hemp.
- They’re claiming that defining civil penalties regarding marijuana violations is not germane to regulating marijuana
- They’re claiming that regulating whether or not professional licenses can be denied to individuals over marijuana services is not germane to regulating marijuana
- They’re claiming that setting and allocating excise taxes from marijuana is not germane to regulating marijuana
I get it, the Governor wants to be able to search people’s cars, apartments and persons without a warrant, and this Amendment makes that inconvenient, but don’t insult my intelligence.
Look, I’m sure that’s part of it, but your analysis (to the extent that you have one) is pretty trite and simplistic.
I’m sure that, among the people who brought this suit (members of law enforcement), a desire to retain the prohibition on marijuana rests, in considerable measure, on a desire to use the “I smell marijuana” test as a convenient way to circumvent 4th Amendment protections. I’m willing to bet that the Governor, a complete fucking nutbar, probably feels the same way.
But the authoritarian motivations of the plaintiffs are, for me, separate from a discussion of whether the decision itself is defensible. The decision notes, for example, that this amendment would remove a whole bunch of power from the legislature, even in areas that might be beneficial to supporters of legalization.
For example, the amendment punishes the smoking of marijuana in public. This means that, in the future, if social and cultural changes in South Dakota lead to people believing that it should be OK to smoke marijuana in public, the legislature would have no authority to eliminate the penalty without going through another constitutional amendment. The legislature would not be able change penalties over time (either up or down), and would not be able to modify the regulatory scheme, because the regulatory scheme has been baked into the constitution.
I think that the debate over the “single issue” question will be very interesting when this case gets to the South Dakota Supreme Court. Decisions on issues like this often turn on arcane and case-specific readings of the constitution, and of prior case law. I’m not claiming that the judge’s interpretation is absolutely and objectively correct; I’m simply arguing that it’s plausible. If the Supreme Court overturns the ruling, my guess is that they will do so on the grounds that the judge in this case has construed the “single issue” provision too narrowly.
One of the problems, if this decision stands, is that it effectively cuts the legs out from under popular ballot measures. You’re left in a no-win situation. If you just stick a simple constitutional amendment on the ballot that provides for blanket legalization (something that I would support), you might have trouble getting enough votes, because there will be people worried about the ability to regulate the use of weed (“What about the children?” they will cry). On the other hand, if you try to mollify those people and get their support by placing regulations in the amendment, you get your amendment overturned for not being a “single issue.” It’s possible that this double-bind is precisely what the legislature and the governor were hoping for when they added the “single issue” provision to the state’s rules about ballot initiatives in 2018.
Separately, I think that possibly the weakest part of the decision is the judge’s argument that this amendment (or revision, as the court defined it) “has far-reaching effects on the basic nature of South Dakota’s governmental system.” I don’t think this is a reasonable argument. The amendment simply adds language about marijuana legalization to the SD constitution. It does not alter or remove or repeal or in any way modify any other section of the SD constitution. I’m not sure how simply adding a section dealing with marijuana constitutes a change in the “basic nature of South Dakota’s governmental system.”
I’ll be watching this case closely, and I’ll be quite happy if the SD Supreme Court overrules this decision.
Exactly. Constitutions should be about general organizing principles.
No. What you are describing is what, in legislation, can be covered by a relation clause: relating to marijuana. Constitutional amendments have a more narrow focus, as they should.
Again, I ask, why should this be in the constitution? What’s the argument for not making it a statutory scheme?
In my state, a bunch of stuff like this is in the constitution because people feared the legislature would repeal things passed as laws. But it also means the legislature can’t fix anything that isn’t working as intended.
Now, it’s pretty clear that the legislature won’t touch things passed as initiatives, unless they need tweaking to work as intended. So fewer things are coming up as constitutional amendments, which is good.
Again, I’m in favor of legalization. But I’m not in favor of putting entire legislative schemes into a constitution.
“Let’s see, here’s the right to be free from unreasonable searches; religious freedom; definition of hemp; requirements for proper extraction of cannabis oils and how to obtain a license for doing so. . . .”
That’s a big one. Can you imagine that some people might want legalized hemp, but not legalized marijuana?
Also, it’s worth pointing out that the single subject rule being applied was enacted by the people in 2018. So it isn’t some ancient arcane rule someone dusted off and decided to apply out of the blue to kill this initiative.
This one is about making professionals not subject to discipline for advising people about marijuana-related matters even though it is prohibited under federal law.
I have to clarify and correct this, having read more about SD law.
Apparently in SD, there is a single subject rule (not a relation clause rule) that applies to statutory legislation. So, it’s possible that this could not all be enacted as a single piece of statutory legislation either. Probably two or more statutory schemes. But it can be done that way.
There is also a separate, recently enacted by the people, single-subject rule for constitutional amendments, which is what is directly at issue in this case. The interpretation of that latter rule is a matter of first impression in SD. So the judge primarily relied on the SD Supreme Court’s prior construction of the legislative single subject rule.
This is pretty different from how similar-sounding provisions work in my state, so I will stop relying on my experience with how those have been construed here.
The judge in this case says a cohesive legislative scheme can be enacted, but not multiple schemes as part of a single initiative.
The subject of the amendment as identified in its own title is legalization of marijuana and hemp. It then creates a legislative scheme for legalization, regulation, and taxation of marijuana, and it directs the legislature to create provisions for regulating hemp.
The title of the amendment says it is to legalize marijuana and hemp. The court identifies the single subject as legalization of marijuana. It then identifies parts that arguably don’t pertain to that. The proponents say the single subject is “cannabis.” The court says that the word cannabis only comes up once, where marijuana and hemp are defined.
I’m not sure yet if I agree with the court’s analysis, but I don’t think it is specious. This opinion reads to me like a court genuinely trying to work through how the principle of a single-subject requirement applies to this constitutional amendment. The court did not rely on more restrictive constructions of the rule that would have made rejection of the amendment easier, as it could have.
It will be interesting to see what direction the appellate courts go with it.
Then they should pass a “no legislation in the Constitution” amendment rather than a “single issue” amendment. I can appreciate the idea that a State Constitution should be high level rather than ultra specific, but that isn’t what “single issue” means. Single issue means the amendments should deal with one thing, such as legalization of products made from the Cannabis Sativa plant.
The fact that the highly specific details are better dealt with by the Legislature, doesn’t mean that those details are unrelated to the legalization of these products. They are very much related, very much germane to the issue, but the writers of the amendment didn’t trust the Legislature to act like competent adults and faithfully implement the will of the people. That lack of trust isn’t illegal.
I don’t have any knowledgeable opinion on the merits of the judge’s ruling but I’m surprised the governor is (apparently) pushing against the initiative. According to Ballotpedia it passed 70-30. This seems like a losing proposition for Noem.
Which is a good short explanation for why it shouldn’t be in the constitution.
They don’t have to “pass an amendment”. The court has held that the situation already exists.
It’s not “single issue,” it’s “one subject,” if we’re quoting.
And there are different ways to understand what “one subject” means. And then, having decided what it means, there’s another call to be made about whether this amendment fits within that meaning.
It was the voters who added the one subject rule --to the constitution-- in 2018. From the opinion: “Article XXIII was most recently amended in 2018, when South Dakota voters passed Constitutional Amendment Z. The effect of Amendment Z was to amend Article XXIII § 1, making it so proposed amendments to the South Dakota Constitution cannot ‘embrace more than one subject.’”
And one way of dealing with the requirement in my state is to put a simple amendment on the ballot, along with a separate initiative on the same ballot that establishes the statutory scheme, and only goes into effect if the amendment passes. In SD, it might take a couple of separate initiatives, I guess, if the single subject rule also applies the same way to legislation. So it may change how things are drafted and put up for a vote, but it may not be too much of a hurdle.
That’s not the measure we’re talking about. It’s this one, which passed 54-46.
Thanks. I missed that somehow. I wonder, though, what voters would think of the judge’s interpretation of the “single subject” rule in this case. I’ve already said that I think the decision is defensible, but I’d also be willing to bet that plenty of everyday people would look at the decision in this case and say, “What do you mean, it’s not a single subject? The whole thing basically deals with marijuana legalization, right? When I voted for the single subject rule, I didn’t expect it to work like this.”
After the British constitution, of course.
Thanks; I should have paid more attention to the link but I guess I wasn’t expecting two ballot initiatives. That gives Noem’s stance a bit more cover although I still think there’s a fair amount of support for MJ in SD.
Just a quick “thank you” to everyone; there’s a lot to consider here and as the OP I appreciate all the information and perspectives provided (and the effort to make them as well, natch).
Thanks from me as well. I started off thinking it was a decision following the same pattern as in my state, and was a bit of a no -brainer. But, it turns out to be quite different, and a closer case, with the meaning of the key constitutional provision being construed for the first time.
I look forward to seeing what happens in the appellate process. I would not be surprised if the reasoning changes, including the construction of the one subject provision. I would further not be surprised if it changes to further tighten the rule. That might depend on what voters intended when it was passed. Was it intended to operate like other similar provisions in other states? If so, it may be tighter than the test that SD already used for legislation, which is what was applied here.
It’s difficult to imagine writing any amendment that couldn’t be distorted to encompass more than one subject.
I don’t think it’s that difficult to imagine one that doesn’t encompass more than one subject. The important thing is that it would look more like existing parts of the constitution, and not like a giant multifaceted legislative scheme.
Cannabis shall be legal, subject to reasonable regulation and taxation. (Accompany with initiated statutory scheme on same ballot, regulating cannabis.). Put additional Cannabis-related provisions on same or future ballot. Or, in a friendlier state, direct legislature to create the scheme. (Subject: Legalizing cannabis)
It can be longer and more detailed, but the more legislative it gets, the more likely to create an issue.
Whether something can be distorted to do so – well all bets are off if bad faith is involved. I mean, you can find a way to invalidate anything if you are willing to distort and deceive.
Like I said before, I’d be interested to know what arguments were before voters when they enacted the single subject rule. Was it to prevent logrolling, so that a bill making marijuana legal could not also include term limits and also a pony for anyone who wants one? Or was it based on how other states have a similar provision, which forces even some related constitutional amendments to be voted on separately if one could coherently be in favor of one, but against others, like legalizing hemp production, legalizing recreational marijuana, and not allowing professionals to be disciplined for advising clients regarding breaking federal marijuana laws.
Subjects: regulation and taxation. Law enforcement and revenue. Two subjects.
i know; i know: just envisioning the arguments
Just want to re-iterate that you make a good point here.
And here’s the amendment in action, so to speak: