The Drug War vs the Bill of Rights

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by Anthony Gregory

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.

Anthony Gregory is Editor-in-Chief at Campaign for Liberty, a research analyst at the Independent Institute, a columnist at LewRockwell.com, a policy adviser for the Future of Freedom Foundation, a freedom activist, and a musician. See his webpage for more articles and personal information.

Copyright © 2009 Anthony Gregory. Licensed under creative commons. A longer version of this piece appeared on LewRockwell.com

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This entry was posted on Thursday, January 14th, 2010 at 10:05 am. It is filed under Drug War, Federalism, Liberty and tagged with bill-of-rights, ninth-amendment, tenth-amendment. You can follow any responses to this entry through the RSS 2.0 feed.