The Drug War vs. the Bill of Rights

Anthony Gregory
Campaign For Liberty
Thursday, January 14th, 2010

This is from Ludwig von Mises’s economic masterpiece, Human Action, written sixty years ago in 1949:

The problems involved in direct government interference
with consumption. . . concern the fundamental issues of human life and
social organization. If it is true that government derives its
authority from God and is entrusted by Providence to act as the
guardian of the ignorant and stupid populace, then it is certainly its
task to regiment every aspect of the subject’s conduct. The
God-sent ruler knows better what is good for his wards than they do
themselves. It is his duty to guard them against the harm they would
inflict upon themselves if left alone.

Self-styled “realistic” people fail to recognize the
immense importance of the principles implied. They contend that they do
not want to deal with the matter from what, they say, is a philosophic
and academic point of view. Their approach is, they argue, exclusively
guided by practical considerations. . . .

However, the case is not so simple as that. Opium and morphine are
certainly dangerous, habit-forming drugs. But once the principle is
admitted that it is the duty of government to protect the individual
against his own foolishness, no serious objections can be advanced
against further encroachments. A good case could be made out in favor
of the prohibition of alcohol and nicotine. And why limit the
government’s benevolent providence to the protection of the
individual’s body only? Is not the harm a man can inflict on his
mind and soul even more disastrous than any bodily evils? Why not
prevent him from reading bad books and seeing bad plays, from looking
at bad paintings and statues and from hearing bad music? The mischief
done by bad ideologies, surely, is much more pernicious, both for the
individual and for the whole society, than that done by narcotic drugs.

These fears are not merely imaginary specters terrifying secluded
doctrinaires. It is a fact that no paternal government, whether ancient
or modern, ever shrank from regimenting its subjects’ minds,
beliefs, and opinions. If one abolishes man’s freedom to
determine his own consumption, one takes all freedoms away. The
naïve advocates of government interference with consumption delude
themselves when they neglect what they disdainfully call the
philosophical aspect of the problem. They unwittingly support the case
of censorship, inquisition, religious intolerance, and the persecution
of dissenters.

Radicalism on the drug issue is often seen in terms of the politics
of the 1960s and since, but twenty years before Woodstock, one of the
most serious and significant thinkers ever to ponder the importance of
human liberty said all this, going far beyond what most critics of drug
policy would say today.

But is Mises correct? Does he overstate his case? Is the abolition
of the right to consume whatever someone wants really taking all his
freedom away? And does drug prohibition really send us on the path to
censorship and religious persecution?

In America, our liberties our ostensibly protected by the U.S.
Constitution and particularly the Bill of Rights. How much has the drug
war compromised our Constitutional rights? Let us consider a countdown,
starting with the Tenth Amendment and moving to First.

The Tenth Amendment says “The powers not
delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the
people.” This effectively means that if the Constitution does not
grant the power to the federal government over something, then it is
for the states and people to decide. Some people here would say this is
the most important amendment. If the federal government obeyed it, the
entire drug war as we know it would be impossible.

In 1909, Hamilton Wright, U.S. official to the Shanghai Opium
Commission, complained that the Constitution was “constantly
getting in the way” of his drug war ambitions. Indeed, in
domestic politics, there is no Constitutional authorization for a
federal drug war whatever. Without a grant of power, the U.S.
government is supposed to butt out.

In 1914, Woodrow Wilson signed the Harrison Narcotic Act into law.
There was no constitutional basis for this, but at least by the time
alcohol prohibition came around, it was recognized that the federal
government would need constitutional authority to ban liquor. They
passed the 18th Amendment and repealed the disaster of alcohol
prohibition with the 21st amendment.

By 1937, however, there was no more such deference to Constitutional
procedure. That year, Franklin Roosevelt signed the Marijuana Tax Act
into law, effectively banning marijuana at the federal level. All the
major federal drug laws since then had no Constitutional basis, and all
of them seemed to come with general expansions of federal power. Just
as Wilson’s ban on heroin and regulation of cocaine came during
the activist Progressive Era and marijuana prohibition was part of
FDR’s New Deal, the next major wave of federal drug law came in
the 1960s, during the Great Society, and culminated in the 1970
Controlled Substances Act just as Nixon was continuing LBJ’s
policies of guns and butter.

This relates to the medical marijuana debates since the 1990s. When
states began allowing medicinal pot, Bill Clinton and George W. Bush
both cracked down on their dispensaries, and many advocates of
states’ rights decried this violation of federalism. A case went
to the Supreme Court on 10th Amendment grounds and all the liberals on
the court, all favoring a federal government with few limits on its
power, upheld Bush’s raids. Three conservatives dissented,
including Clarence Thomas, arguing that the federal government had no
authority through the commerce clause to interfere with
California’s medical marijuana policy.

If Obama indeed stops the medical marijuana raids, it will probably
not be because, as his spokesman says, he believes “that federal
resources should not be used to circumvent state laws.” On
general questions of policy, including the drug war, Obama and most
liberals favor federal supremacy. If California goes through with
legalizing marijuana outright, will Obama really do nothing about it?
Will the administration actually find ways to crack down on medical
marijuana while claiming the operations it’s targeting are not
for medical use — as it has done before? Is it possible that
Obama, not believing in the constitutional principles at stake, will
accelerate other aspects of the drug war?

The Tenth Amendment alone invalidates the federal drug war, and so too does the next one down.

The Ninth Amendment says “The enumeration in
the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”

This means that just because a personal right is not specifically
mentioned does not mean the federal government can infringe upon it.
Certainly the rights to use and sell drugs are being attacked in this
very way.

And in moral terms, this is what the drug war means. It is the
denial of self-ownership. Someone who can’t decide what to put in
himself does not own himself. The logic of the drug war is that the
government owns you.

We look at all the rights trampled in the name of the drug war and
we see how all rights are connected. People are denied the right to
self-medicate and take the treatment they desire. Not just in regard to
illegal drugs either, but those that are regulated.

The Food and Drug Administration is tied at the hip to the Drug
Enforcement Administration. The pharmaceutical interests who control
federal prescription drug policy have a stake in maintaining a control
on what drugs people can do. The FDA, by keeping life-saving drugs off
the market, has forced tens and tens of thousand Americans to die
prematurely. Mary Ruwart puts the number in the millions.

What would amuse me if it were not tragic is that so many liberals
defend the FDA even as they question the drug war. But if you have a
right to do drugs to get high, you surely also have a right to do any
drug that you think might save your life. Medical freedom in its true
sense is totally impossible without drug freedom.

Because of the drug war, the right to travel is impeded, and the
right to have and transfer money. Laws against money laundering —
itself a victimless crime — have sprung up almost entirely
because of the drug war. And anyone who believes that the right to
practice free enterprise is important and guaranteed by the Ninth
Amendment must necessarily oppose the drug war, which violates free
market principles in a million ways.

Next on our list is the Eighth Amendment, which guarantees that
“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”

Well surely any punishment is cruel for a victimless crime.
Conservatives might say this is a liberal reading of the Amendment. But
at the time the Bill of Rights was adopted, prisons as we know them
hardly existed, and the notion of imprisoning someone for ten years for
growing hemp, on which the Constitution was drafted, would have been
seen as quite cruel and quite unusual. In the 1970s and 1980s, Congress
passed mandatory minimum laws which reduce the discretion of judges in
handing out sentences — almost all such federally determined
sentences are for drugs or guns.

The average sentence in federal prison for drug trafficking is
longer than for sexual abuse. The burgeoning prison state is one of the
most horrifying features of modern American history, with the drug war
playing a huge part. About one in four or five Americans prisoners are
there for non-violent drug offenses — acts that were totally
legal in the nineteenth century. Before Reagan stepped up the drug war,
there were half a million Americans in prison or jail, and another 1.5
million on parole or probation. There are now more than two million
behind bars and seven million total in the correctional system. Prisons
grew by 500 percent from 1982 to 2000 in my state of California.

One out of four or five prisoners are there for drugs alone. And for
their non-crime, they are sentenced to a personal totalitarianism: Gang
violence, an alarming frequency of prison rape, beatings and sometimes
death. Americans by the hundreds of thousands who have never raised a
finger against anyone are in constant fear of being abused and turned
into slaves by their cellmates. How any American can think this is in
any way consistent with civilized society boggles the mind.

Bail is often ridiculously high for drug war victims — $1
million or more. The advent of asset forfeiture — whereby the
government confiscates your property and essentially accuses it of
being guilty of a civil offense — has become an effective way to
circumvent the “excessive fines” clause.

What about the Seventh Amendment? It reads: “In suits at
common law, where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise reexamined in any Court of the United States,
than according to the rules of the common law.”

I mentioned civil asset forfeiture. It is important to recognize
that there is no criminal hearing for the vast majority of forfeiture
victims. The property is seized through civil litigation. But since the
property itself, and not the owner, is on trial, the Bill of Rights
offers no protection. There’s no right to a trial. If a person
wants to reclaim his confiscated property, he must ask for a trial. If
the court rules that the property be returned, the government can ask
for another one, or merely make return of the property contingent upon
the victim paying tens of thousands of dollars in fines.

You might be a charter pilot who has his plane taken as part of a
drug investigation, and be unable to pay the six grand to get your
plane back after being bankrupted by the legal system. This happened to
Billy Munnerlyn in the early 1990s. You could be the wrong color or
have the wrong amount of cash on you and lose it all to confiscators
who get to keep a cut of what they steal.

One point of the Seventh Amendment was to protect the rights of
Americans to sue government officials for wrongdoing, and have a fair
trial — not the type of mock trial the Founders saw used by the
British Crown to let their officials off easy. The drug war has turned
this entire idea on its head. Now the government can just take your
property without charging you and all you can do is hope that it lets
you make your case in a fixed sham proceeding that you are innocent.

The Sixth Amendment reads, “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have
been committed, which district shall have been previously ascertained
by law, and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.”

For standard crimes like murder, theft, rape and the like, it is
perhaps possible to have trials reasonably available to every suspect.
But there are simply too many drug offenders for this and no victims to
serve as reliable witnesses. So the standard of evidence has been
lowered to the point where the mere existence of enough cash and a
cop’s say-so is enough to convict.

What’s more, defense attorneys are often burdened with a
hundred clients at once, so they must prioritize and leave those who
are fated to only a year in prison to lesser hearings. Some judges have
even refused to assign public defenders in drug cases.

A dangerous alternative to the trial system is the “drug
court,” wrongly touted by some reformers, including the Obama
administration. In Obama and Biden’s “Blueprint for
Change” they propose to “Expand Use of Drug Courts”
to “give first-time, non-violent offenders a chance to serve
their sentence, where appropriate, in the type of drug rehabilitation
programs that have proven to work better than a prison term in changing
bad behavior.”

But as Morris Hoffman, a state trial judge in Denver and an adjunct
professor of law at the University of Colorado, warned at the USA Today
blog in October last year:

[It’s] not just that drug courts don’t work, or
don’t work well. They have the perverse effect of sending more
drug defendants to prison, because their poor treatment results get
swamped by an increase in the number of drug arrests. By virtue of a
phenomenon social scientists call “net-widening,” the very
existence of drug courts stimulates drug arrests.

Police are no longer arresting criminals, they are trolling for
patients. Denver’s drug arrests almost tripled in the two years
after we began our drug court. At the end of those two years, we were
sending almost twice the number of drug defendants to prison than we
did before drug court.

Attempting to win the drug war, even in a more progressive sense, is
thus no substitute for abandoning it altogether. The only change I can
believe we’ll see under Obama is more erosion of the Sixth
Amendment.

We’re just getting started. The Fifth Amendment states:
“No person shall be. . . subject for the same offense to be twice
put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private property be
taken for public use, without just compensation.”

Mandatory drug testing can be seen as self-incrimination, as soon as
the results are used in criminal prosecution. Civil asset forfeiture
has allowed for the deprivation of life and liberty without due
process, and also for the effective phenomenon of double jeopardy, as
people are punished both in the civil and criminal systems.

The Psychotropic Substances Act of 1978 expanded the use of
forfeiture to include any property connected to the drug crime in any
manner. An early 1990s study estimated that 80% of people who lost
their property to civil asset forfeiture were never charged with a
crime.

We often hear of money being confiscated for drug residue, which can
be found on over 90% of the cash in circulation. We hear of people
losing their homes, cars, boats and businesses because of the presence
of marijuana seeds. The drive to get loot, some of which police get to
personally keep, has even led to some deaths, as was the case with
Donald Scott, a California rancher gunned down because bureaucrats
wanted to seize his land on which they claimed they found some seeds.
Michael Bradbury, the Ventura County DA, said that the police raid was
“motivated at least in part, by a desire to seize and forfeit the
ranch for the government… [The] search warrant became Donald
Scott’s death warrant.”

I shouldn’t even have to discuss how the Fourth Amendment has been compromised.

“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.”

Where to begin? Warrants have become a mere bureaucratic
technicality, rubberstamped or often neglected altogether in the
pursuit of drug offenders. No-knock raids have become a commonplace in
modern American life. 92-year-old women are murdered and have drugs
planted on them. Men who shoot no-knock invaders are sentenced to
death, and if they’re lucky, have their sentences reduced to life
— this happened to Cory Maye in Mississippi. Children are shot in
the back. Family pets are killed by laughing officers as they break
into homes searching for drugs.

With a real crime, it is often possible to have an “Oath or
affirmation” backing the warrant, which can actually
“describe the persons or things to be seized.” In a murder
case, a warrant can describe a bloody knife. Drug war warrants are
typically too vague to pass constitutional muster. Mere suspicion that
some law is being broken is often enough.

The courts have ruled that if the government tries to arrest you
when you’re in public, and you escape into your home, they can
now search the home without a warrant. As for automobiles, drug war
roadblocks have erased the Fourth Amendment concerning cars, which are
now treated as the property of the state.

The Supreme Court recently ruled that police may prevent people from
entering their own homes while the police apply for a warrant. These
abuses are often glorified on television as the necessary implements to
catch vicious criminals, but they originated with, and are principally
used for, the war on drugs.

Americans tend to look at the Third Amendment as an anachronism.
“No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a manner
to be prescribed by law.” Surely this hasn’t been touched
by prohibition, has it?

Even by a very narrow reading, I believe it has. In one instance, in
1997, 40 members of the Army National Guard moved into the Las Palmas
Housing Project in Puerto Rico to search for drugs. Years later, there
were hundreds there.

More broadly, the entire spirit of the Third Amendment has been
trounced. The point of the amendment was to prevent the abuses seen
with the British Quartering Act, to protect Americans from having to
quarter soldiers — to support them, even financially —
except at wartime when and through legal means. But all around us, we
have seen the police militarized in the name of the drug war.

Some conservatives objected when Bush modified the insurrection act
and amassed more presidential power to call up the National Guard on
his own say-so. But this trend began before 9/11. In a hearing on the
drug war in 1994, then Congressman Chuck Schumer said, “The
National Guard is a powerful, ready-made fighting force. Redefining its
role in the post Cold War era presents exciting possibilities in the
war against crime.”

Also troubling have been the attempts to weaken Posse Comitatus,
which since Reconstruction has forbade the use of the military in
civilian law enforcement. But before the war on terrorism, there was
the drug-war loophole. In the 1980s, Posse Comitatus was amended to
allow for military-police cooperation in drug interdiction. Whereas the
military was understood to be inappropriate for the enforcement of
federal civil rights during Reconstruction, it was supposedly okay for
the drug war. This precedent culminated in the largest massacre of
American civilians by their own government since Wounded Knee.

Why was the military involved in Waco sixteen years ago? Because the
government decided to treat their upcoming publicity-stunt raid as a
drug measure. They claimed the Branch Davidians had a meth lab.
That’s how they got the warrant and military involved.
That’s how they got the military weapons. It was only later that
the excuse shifted to child abuse or illegal gun ownership.

Which brings us to the Second Amendment. One of the terrible
tragedies of our time is that more people do not understand the
connection between the drug war and gun rights.

As soon as violating people’s rights to find drugs became
excusable, the crusade against private gun ownership got a big boost.
Both concern the ownership of inanimate objects. As wars on possession
crimes, both government crusades rely on the same kinds of dirty
tactics, the punishment of minor offenders with disproportionately long
sentences as a deterrent, the erosion of due process, privacy and the
rights of the accused.

The relationship between the drug war and violent crime has been
documented. The spike in violent crime following prohibition has
traditionally led to more severe enforcement of gun laws. Both gun
control and the drug war lead to violent black markets, and thus more
state power in a spiraling vicious cycle of mutual reinforcement.

It was, after all, the bootlegging gangs that emerged out of alcohol
prohibition that served as the inspiration for the first major federal
gun law: The National Firearms Act of 1934. A year after the Marijuana
Tax Act of 1937, the Federal Firearms Act of 1938 passed on a similarly
used an abusive interpretation of the Commerce Clause.

Moreover, just as with terrorism, the two issues became linked in
law enforcement. Federal law mandates additional penalties if drug
dealers are caught in mere possession of a firearm. Nobody wants to
stick up for the rights of drug dealers to keep and bear arms. But so
long as they are violating no one’s rights, they should be left
in peace. There are many legitimate reasons, from a moral perspective,
that a dealer would want to defend himself.

Many non-violent drug convicts are automatically denied the right to
bear arms. This is a serious and grave attack on the human rights of
drug convicts who have already paid a debt to society that they
didn’t even owe.

The lesson is clear: If you want your right to self-defense protected, you must oppose drug prohibition.

Last but not least is the First Amendment, which states
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances.”

For years, politicians have wanted to censor us, using the drug war
as an excuse. Probably the most notable example was Senators Feinstein
and Hatch’s proposed Methamphetamine Anti-Proliferation Act,
which in its original language would have outlawed speech that
advocated drug use or production and cracked down on websites that
merely linked to sites that sold drug paraphernalia. Then there is the
more general chilling effect of students being harassed in public
schools for outwardly advocating drug use or legalization.

Here in New Hampshire, Ian Freeman has been threatened with criminal penalties for the act of advocating drug possession.

As for religious liberty, American Indians have long used
hallucinogens as religious rites, and have risked penalties under
federal law for the peaceful exercise of religion. This brings us to a
fundamental incompatibility between the First Amendment and the drug
war.

Under the American Indian Religious Freedom Restoration Act of 1994,
American Indians can use peyote because it is part of their religion.
But if something is peaceful, anyone should be allowed to do it,
whether it is recognized by the government as religious or not. For
peyote users to be jailed because they do not believe in its spiritual
dimension is a de facto official government endorsement and granted
privilege for some religious groups. If it can conceivably be allowed
for the religious, it must constitutionally be allowed to everyone. Yet
for peyote users to be jailed despite their religion is a violation of
their religious liberty. The only way to reconcile religious liberty
with federal drug law is to abolish it altogether.

Thus we see that Ludwig von Mises was hardly off the mark. The
entire Bill of Rights has been shredded in the drug war. In
Constitutional terms, “If one abolishes man’s freedom to
determine his own consumption,” one does indeed “take all
freedoms away.” With even the precious First Amendment battered,
Mises was right that the drug warriors “unwittingly support the
case of censorship, inquisition, religious intolerance, and the
persecution of dissenters.”

The alternative, say the drug warriors, would be worse. They persist
in their claims that we are utopians and unrealistic. But it is their
vision of a drug-free America that is unrealistic. America’s
prisons are constantly monitored and prisoners have very little of what
we would call civil liberty, yet drugs flow throughout the system.
America itself could become one big drug prison and their vision would
be no closer to being obtained.