Today, the House Agriculture Committee will consider SB 357 concerning industrial hemp. It authorizes the state seed commissioner (I didn’t know we had one of those!) to authorize the cultivation and production of industrial hemp. Among other things, industrial hemp is defined as the plant of the Cannabis sativa seed that contains only a limited amount of THC. It makes the state seed commissioner’s authority subject to federal approval. It prohibits the unlicensed cultivation of hemp. The applicant for a production license has to, among other things, certify that they haven’t been convicted of a drug related misdemeanor or felony in the past 10 years. They have to agree to a background check and inspections by the state police.

The committee will also consider SB 179 concerning regulation of poultry and egg producers. Basically, it allows small vendors to operate with fewer regulations. The digest provides:

Allows poultry farms to slaughter and process up to a certain number of poultry annually without inspection under federal regulations. Provides that a local unit of government may not by ordinance or resolution require licensure, certification, or inspection for food or food products of an individual vendor, farmer, or bona fide egg producer who meets certain requirements. Provides that a farmer or bona fide egg producer with an annual egg production from a flock of 3,000 hens or fewer: (1) is not required to have a farmers market retail permit to sell eggs at a farmers market; and (2) may sell eggs: (1) to a restaurant or grocery store; or (2) at a farmer’s market or roadside stand in Indiana if the eggs meet U.S. Consumer Grade B standards.

Long article by Tony Cook and Bob Berggoetz of the Indianapolis Star on some of the behind the scenes action in the Indiana Senate on HJR 3, the resolution to ban marriage equality in the Indiana Constitution.

The short version seems to be that Indiana’s social conservative activist groups feel like they were promised that the proposed constitutional amendment would pass through the General Assembly in a form that would put it on the 2014 ballot. When the second sentence was stripped out in the House, they were unhappy and became moreso when they felt like Senate leadership did not accommodate their desires to have the second sentence re-inserted in the Senate. The most prominent of these activist groups are Curt Smith of the Indiana Family Institute, Micah Clark of the “American Family Association,” and Eric Miller of “Advance America.” (Indiana families, American families, and advancement! Who could be against those, right?!?)

When Sen. Long assigned the resolution to the Rules Committee instead of the Judiciary Committee, the suspicion of these people was because Judiciary could have re-inserted the amendment while Rules is pretty firmly under the control of Sen. Long who didn’t want the second sentence in. The article reports rumors that socially conservative Senators, such as Mike Delph, were conspiring – as a way to voice their disapproval of the weakened amendment – to align with the Democrats to vote down the remaining sentence entirely when the existing version came to the Senate floor.

Whatever machinations took place, the fact is that an amendment to restore the second sentence was never even called to the floor for debate and, I believe, Sen. Delph was the only socially conservative Senator to vote against the remaining amendment.

In fact, the whole process made the social conservatives look rather toothless. Unlike the anti-HJR 3 Freedom, Indiana group, the Smith, Clark, Miller conglomerate seemed unable to engineer supporting resolutions by cities, towns, and other Indiana institutions the way Freedom, Indiana did. The testimony offered by pro-HJR 3 groups was generally in the form of out-of-state shills who offered up a plates of red herring and platitudes about “saving marriage” without connecting the dots about how same sex marriages would endanger existing heterosexual marriages and without seeming to acknowledge that Indiana’s statutory law already prohibits same sex marriages. Meanwhile, Freedom Indiana and its allies offered up real Hoosiers with lives that are harmed by the current law and would be further harmed by the amendment. And, despite the fears of moderate Republicans, primary challenges did not materialize for those having second thoughts about the wisdom of HJR 3.

It’s difficult to say whether this relatively anemic lobbying and public relations activity on the part of HJR 3 supporters was simply a reflection of anemic support for HJR 3 among the broader community or, rather, a reflection of complacency in their relationships with state lawmakers. But, at the moment, there appears to be a fractured relationship between social conservatives and more mainstream Republicans. And, for now anyway, Sen. Delph appears to be on the outside looking in.

SB 229 being heard in committee today would prohibit the destruction of firearms by a law enforcement agency unless the serial number has been obliterated. It also creates a procedure for an individual determined by a court to be dangerous under IC 35-47-14-6 and whose firearm was ordered retained by a law enforcement agency to have the firearm sold and the proceeds returned to the individual less costs that may not exceed 8% of the sale.

It also prohibits local government, including law enforcement agencies, from conducting firearm buyback programs. It defines “firearm buyback program” as a program to buy firearms from individuals for the purpose of reducing the number of firearms owned by civilians or for permitting civilians to sell firearms to the government without fear of prosecution.

So, if a duly elected Sheriff decides that a buyback program to reduce the number of firearms on the street is the right thing for his community and if a duly elected County Council determines that such a program is the right thing for its community and appropriates money for that purpose, the General Assembly, in its infinite wisdom, would be saying that they are not permitted to do so.

Following the decision by the Indiana Senate to allow HJR 3 concerning marriage inequality to pass second reading without reinserting the second sentence, Sen. Delph caused a stir by taking to Twitter with some out of the box thinking.

The one in particular that prompts this post is:

@situationgray But the liberal view of rights to clean water, air, a decent job, a house, car, health benefits is a modern perversion.

— Mike Delph (@MikeDelph) February 15, 2014

Now, a lot of respondents took the low hanging fruit and expressed astonishment at the notion that the right to clean water is a modern perversion. I get that, but I also get what I take to be Sen. Delph’s intent here. There is a distinction to be made between “rights” and “things we want.” The majority can’t vote to take away the former but the majority can decide to go a different way on the latter. He has also long taken the position that the judiciary has gone too far in anointing itself the body to decide what rights are and are not. In particular, he does not much like the bedrock judicial case of Marbury v. Madison.

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.

As a historical matter, I have some sympathy for Sen. Delph’s position. Marbury v. Madison was a deft power grab by Chief Justice Marshall. However, if Chief Justice Marshall’s view of things was not the view of the Framers of the Constitution, he got it right and they got it wrong inasmuch as having the judiciary check the legislature in this fashion has contributed greatly to the stability of our form of government.

On the subject of rights, Sen. Delph is out of the mainstream in his view of who gets to discern and articulate those rights and also in his crabbed view of what rights citizens do and don’t have.

I’m out of the mainstream in that I don’t really buy the way the Framers (and Locke) marketed the idea of rights — that they are self-evident, God given, and inalienable. I don’t think rights are any of those things, and I’ve said so in the past. (See, e.g., here):

Americans, by and large, get very uncomfortable with the idea that property is a blessing of government. We like to pretend that government is a necessary evil (sometimes not even that) and don’t like to recognize that government is a fundamental underpinning for our whole way of life. When it comes to property, you’ll get some happy talk about natural rights or being endowed by our Creator with certain inalienable rights. But such talk is entirely inadequate for explaining why it is that the Native Americans don’t dominate the real estate market. The reason is that we alienated the hell out of their right to property and nature’s law didn’t lift a finger to stop us.

In short, I take the position that rights are a product of the law. Sen. Delph seems to embrace the more mainstream view that rights exist outside of and prior to the law. However, his view also permits the notion that rights are not a function of human consensus about right and wrong and, therefore, entails the ability to ignore those purported “rights.”

In my view, a right is something named and enforced as such by the machinery of the law. I would be interested in knowing whether there is a methodology of discerning a “natural right” and distinguishing it from a desire or policy preference. How does the desire for clean water become a right to clean water? How does the desire for property protection by the government become the right to property protection?

The House Committee on Public Policy will consider SB 16 concerning the regulation of microbreweries and artisan distilleries. The definition of microbrewer is amended to require the entire brewing process to take place in Indiana. The microbrewer would be permitted to sell at farmer’s markets, so long as the beer is bottled or put in another acceptable container on the brewer’s premises and in a quantity of not more than 576 ounces (equivalent of about two cases of beer). It also would add permission to sell at trade shows.

The bill would further allow the holder of an artisan distiller’s permit that also holds a microbrewery permit to also hold a retailer permit for a restaurant.

All of which tells me that the regulation of alcohol in our state is way more complicated than it needs to be.

The House Committee on Courts and Criminal Code will consider SB 63 today. It enhances the penalty for nonsupport of a dependent child if the individual has a prior conviction for the offense. It also, based on the fiscal note, removes the enhancement for first time offenders whose support arrearage exceeds $15,000. So, in other words, repeat offenders with smaller arrearages (less than $15,000) would suffer from the enhancement and first time offenders with larger arrearages would benefit from a lesser penalty. The fiscal note indicates that this is expected to reduce the Department of Correction incarcerations somewhat. The note doesn’t say, but I would assume that this creates the potential for local incarcerations in the county jail to go up somewhat as well. But, the fiscal impact does not seem to be dramatic either way.

Jud McMillin’s HB 1351 which requires drug testing for welfare benefits and restrictions on the types of food available for purchase through food stamps is premised on the notion that poor people are dishonest children. It passed the House 71-22 and is now in front of the Senate.

Other states have tried the drug testing for welfare recipients and have found it to be a waste of taxpayer money. The idea is, I suppose, that their poverty is the result of their poor moral choices, e.g., doing drugs. If they weren’t so drug addled, obviously they would be productive citizens. But, it turns out, not so much. The welfare population doesn’t seem to do illegal drugs at a higher rate than the population at large. The experience of other states is that it costs as much or more to test people than it saves by denying benefits to those few who test positive.

The bill also provides that SNAP benefits should only be used for food, food products, and beverages that have sufficient nutritional value as determined by the division of family resources. This feels a little like a throwback to the old tales of young bucks eating T-bone steaks.

By a vote of 48 – 0, because who wants to vote against Christmas?, the Senate passed SB 326. The bill permits school corporations to instruct students about the history of traditional winter celebrations and will also allow students and employees to offer “traditional greetings” such as “Merry Christmas,” “Happy Holidays,” and “Happy Hanukkah.”

The bill also purports to allow school corporations to display “scenes or symbols” associated with “traditional” winter celebrations such as a Menorah, Christmas Tree, or Nativity Scene. No word on scenes or symbols associated with Saturnalia, Festivus, or other winter festivals which are undoubtedly part of somebody’s tradition. However, the use can’t include just one religious symbol – it has to include either more than one religious symbol or a religious symbol and a secular scene or symbol. Presumably a devotional to Jesus is acceptable in a kindergarten class if there is a Santa Claus or Christmas tree laying about somewhere nearby.

As far as I can tell, this bill is useless. If there is a prohibition on these sorts of activities (and for the most part I don’t think there is in the first place), that prohibition is imposed by the U.S. Constitution. The General Assembly can’t do a thing about restrictions imposed by the Constitution. More likely is that this legislation would tend to encourage school corporations to violate the Constitution in reliance on the statute; thereby incurring unnecessary legal fees.

It also tends to reinforce the persecution complex of those who believe the hype about the “War on Christmas.” If the General Assembly had to step in to protect Christmas, things must have been serious! At the end of the day, it feels like a manifestation of cultural panic by those who perceive that the culture is changing and don’t like the change.

Legally, I don’t see that this legislation does any particular damage, but I guess I regard its passage as symbolically questionable.