The latest ruse of some conservatives to garner the sympathy, support, and votes of libertarians is to declare that they are “constitutionalists.” Although they are sometimes referred to as “libertarians” in the media, sometimes even portray themselves as “libertarian-leaning,” and get ecstatic when real libertarians describe them as “liberty-minded,” these conservative “constitutionalists” are not only not libertarian, they are not even constitutional.
The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government. As James Madison succinctly explained in Federalist No. 45:
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
In article I, section 8, of the Constitution, there are eighteen paragraphs that enumerate the limited powers granted to Congress. Everything else is reserved to the states—even without the Tenth Amendment. Four of them concern taxes and money. One concerns commerce. One concerns naturalization and bankruptcies. One concerns post offices and post roads. One concerns copyrights and patents. One concerns federal courts. One concerns maritime crimes. Six concern the military and the militia. Once concerns the governance of the District of Columbia. And the last one gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
One can search the Constitution morning, noon, and night with an electron microscope, x-ray vision, and night-vision goggles and never see a reference to the national government having the power to identify drugs, regulatedrugs, classify drugs, set up a Drug Enforcement Administration, outlaw drugs, pass a single law related to drugs, or have anything whatsoever to do with any drugs.
Any drugs, whether they are stimulants, hallucinogens, or sedatives. Any drugs, whether they are opiates, cocaine, or cannabis. Any drugs, no matter how unhealthy, harmful, or immoral. Any drugs, no matter how addictive, potent, or dangerous. Any drugs, whether they are smoked, snorted, or injected. Any drugs, whether they are used for medical, therapeutic, or recreational purposes.
So why do constitutionalists support the drug war?
The federal government’s war on drugs is a monstrous evil that has ruined more lives than drugs themselves. The drug war has failed to prevent drug abuse, end drug overdoses, reduce drug use, or keep drugs away from teenagers. Instead, it has fostered violence, unnecessarily swelled prison populations, clogged the judicial system, corrupted law enforcement, hindered legitimate pain treatment, destroyed personal and financial privacy, violated civil liberties, and made criminals out of mostly otherwise law-abiding Americans. The war on drugs is truly a war on individual liberty, private property, personal responsibility, and a free society.
For the moral and philosophical case against the drug war, see my book The War on Drugs Is a War on Freedom. But aside from this, and aside from every negative thing I mentioned above about the drug war, what is most relevant here is that the war on drugs is a war on the Constitution, limited government, the free market, and federalism—things that constitutionalists claim to hold dear.
This is because the Constitution not only doesn’t mention drugs, it nowhere authorizes the federal government to regulate, monitor, or restrict the consumption, medical, or recreational habits of Americans. This is why when the Progressives a hundred years ago wanted to ban alcohol on the national level, they realized that an amendment to the Constitution was needed.
Constitutionalists claim to revere the Constitution. They say they adhere to the Constitution. They lambaste “activist” judges for not being strict constitutionalists. They criticize those who speak of a “living Constitution.” They talk about following the original intent or original meaning of the Constitution.
But Constitutionalists are hypocrites and enemies of the Constitution if they support the drug war. All of their talk about the Constitution is merely hot air. Just like when Republicans say in their platform that they are “the party of the Constitution.” And just like when conservatives awarded former Secretary of Defense Donald Rumsfeld the “Defender of the Constitution Award” at one of their Conservative Political Action Conferences.
A real constitutionalist would not support the federal government having an Office of National Drug Control Policy, a Drug Enforcement Administration, or a Substance Abuse and Mental Health Services Administration. A real constitutionalist would not support legislation like the Controlled Substances Act, the Comprehensive Drug Abuse Prevention and Control Act, or the Combat Methamphetamine Epidemic Act. A real constitutionalist would not support the federal government having a National Drug Control Strategy, a National Survey on Drug Use and Health, or a Domestic Cannabis Eradication/Suppression Program.
A real constitutionalist would support the Constitution instead of the drug war.
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