Constitutionality of the Drug Prohibitions

From douzzer Sun Jan 14 23:21:20 EST 1996
Newsgroups: talk.politics.crypto,alt.politics.usa.constitution,alt.drugs.caffeine,alt.drugs.pot,rec.drugs.cannabis
Subject: constitutionality of drug use Was: Re: help
References: <DKtr6o.n5@scn.org> <4d5sib$9sk@news.atlantech.net>
Followup-To: alt.politics.usa.constitution,alt.drugs.pot,rec.drugs.cannabis
Organization: MIT Brain and Cognitive Sciences

[note followup field]

wyattcoppl@atlantech.net (Wyatt Copple) said:
"                                            Marajuana users 
 are basically criminals, but they don't usually get sent to 
 prison for a long time unless they are caught selling - even 
 then it's usually a county or a state prison.
"

Why are they "basically criminals?"
My drug of choice is nicotine. Perhaps yours is caffeine. Others
prefer ethanol, or sucrose. Still others prefer tetrahydrocannabinol,
or methyldimethamphetamine, or lysergic acid diethylamide, or
phencyclidine, or cactus or flower seeds, or nitrous oxide.

The government is given no specific authority by the Constitution to
decide what adults can and cannot consume, on their own time, and on
their own private property. Quite the contrary, the 4th amendment to
the Constitution, which along with the rest of the Bill of Rights had
to be added in order that a ratification by the States could take
place at all (and ought therefore to be considered to be an _original_
part of the Constitution, not amendments), are fairly clear in giving
to the people the right to do as they please in these areas:


                               Amendment IV

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.


The last two Amendments comprising the Bill of Rights address the
issue of government power beyond that spelled out in the Constitution:


                                Amendment IX

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

                                 Amendment X

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.


What we can get from this is that, although the Constitution does not
and could not at the time of its writing directly address a great
number of common modern activities including drug use, the federal
government is not nonetheless free to arbitrarily legislate upon
whatever grounds it pleases. A strong case can be made that the drug
laws are moral in origin, and that moral justifications for laws are
tantamount to religious justifications, which are quite explicitly
forbidden by the Constitution.

It is, therefore, fairly clear that federal drug laws are
unconstitutional, and therefore illegal. It is nonsensical to assert
that an individual who violates an illegal law is a criminal.

Amendment X spells out the illegality of DEA enforcement activities.
It does not make clearly illegal the enforcement activities of state
governments; the laws that empower these authorities must be attacked
more directly on the basis of their moral grounds and inconsistency in
spirit with the Constitution.

I opened this essay with a note about "drugs of choice." Does it not
imminently reveal the inconsistency of federal and state policy? Is it
not obviously suspicious that some drugs are illegal, whereas others
are legal? Ethanol consumption can result in behavior which is
substantially more likely to involve abridgement of others' rights
than is consumption of many of the substances forbidden by federal
and/or state laws. What is the justification? Can it be anything other
than the result of moralization and lobbying by powerful organizations
whose needs are best served by non-drug-using employees,
constituencies, communities, etc.? Does this not manifest a creeping
paternal state, the type Americans are traditionally taught to fight,
the type of state found in Soviet Russia, Mao's China, Castro's Cuba,
Hitler's Germany, Orwell's imaginary world of "1984," and Huxley's
Brave New World?

It is my position that, for reasons of clarity, one or more
"individual empowerment" amendments need to be added to the
Constitution, to the effect that the right of each adult individual to
engage in a consensual activity shall not be abridged, and
specifically enumerating as consensual the right to use any means at
their disposal to protect the privacy of personal documents and
communications, the right of adults to sell, purchase, and consume
anything whose primary purpose does not involve the abridgement of
others' rights (with an empowerment to the government to regulate in a
reasonable manner for quality and truth in packaging and advertising),
and the right of consenting adults to do as they please with eachother.
Additionally, the issue of proof-of-consent needs to be addressed.
This proof could involve anything up to a cryptographically certified
statement, as ought to be necessary to carry out euthanasia.


-Daniel Pouzzner


POSTSCRIPT, 1998-Nov-7:

An oft-invoked excuse for drug prohibition is Article 1, Section 8, of
the US Constitution, which begins "The Congress shall have power to
lay and collect taxes, duties, imposts and excises, to pay the debts
and provide for the common defense and general welfare of the United
States; but all duties, imposts and excises shall be uniform
throughout the United States;"

The Supreme Court, in decision "297 U.S. 2, #13," said

"...the phrase, 'to provide for the general welfare,' is not
     an independent provision authorizing Congress to enact wel-
     fare statutes, but is a qualification defining and limiting
     the power 'to lay and collect taxes,' etc."

Thus producing a precedent that directly abnegates the arguments of
the prohibition apologists.