Supposedly, the Constitution is the "supreme law of the land" in these United States. I say "supposedly," because I haven't seen it get in the way of either ruling party in Washington, DC, since the day I was born. Reviewing our history, it's obvious that most American politicians have held the Constitution in contempt for quite some time now. But the sad part is that, "We the People" cheer these politicians on as they blatantly violate the Constitution. Particularly when "our" party is in charge.

January 16, 1919 was a milestone in American history ... The 18th Amendment was the last time that this country sought a Constitutional Amendment to expand the enumerated powers of the Federal government. -- Warren Meyer

Just think about that. Think about all of the massive powers the federal government has accumulated over the years without bothering to abide by the "supreme law of the land" - you know, as in actually passing an amendment. If the president can write whatever law he desires, and the Congress can do the same, we have abandoned the "rule of law" for tyranny - the unlimited rule of the State.

The "War on Drugs" is a War on the Constitution

This post is a response to Jack Camwell, author of "The War on Drugs: Should we admit defeat?" I'll address the moral and economic arguments against the "war on drugs" some other time, right now, I'd like to focus on the following exchange (in the comments to the above post):

Me: Let's say I decide to, oh, I don't know, start shooting heroin right now. Where do you derive this "right" to break into my home, exact violence against me, kidnap and lock me in a cage, and steal my property? Let's say you decide to smoke a joint. Where would I derive the "right" to put a gun to your head and demand you stop?

Jack: By living in society you submit yourself to the social contract, ie. that there are accepted rules for your safety and that of others, and to be a part of society you agree to follow those rules. When you break the contract, ie. break the rules, you’re punished for it ...

The Federal government has not broken that contract with the prohibition of drugs. Legislators, our elected representatives, legislated that certain substances are dangerous to the user and others around the user. Those substances were deemed illegal by force of law.

Where in the Constitution does it explicitly state that the government CANNOT tell us what harmful substances we can and cannot ingest? It doesn’t.

And this is where we're at today ... living under a government of unlimited powers.

Alcohol prohibition, established with the passage of the 18th Amendment in 1919, failed for a variety of reasons and was repealed in 1933. The reason we were able to repeal alcohol prohibition is because it operated within the U.S. legal system (as evidenced by use of the amendment process).

Declaring a "war on drugs" in 1970, Congress bypassed the amendment process altogether (broke the law), passing the Controlled Substances Act by fiat and assuming vast new powers by mere decree. For all intents and purposes, it was a police state coup d'état. After all, how can you repeal an amendment that doesn't exist?

Nothing, as far as I can tell, has inverted the roles of social and State powers in our country more so than the "war on drugs." When you consider that heavily-armed government thugs wearing black masks routinely kick homeowner's doors down, endanger children, kill family pets indiscriminately, murder innocent bystanders, kill innocent kids, steal private property, commit armed robbery, and kill military veterans in cold blood ... Far from being a government "of the people," the federal government today supersedes any and all social authority.

The Leviathan State has become the master of it's own creators.

Of Limited Powers

There are 18 specific powers granted to the federal government in Article 1, Section 8, of the Constitution. That's it. We call these the enumerated powers. Nowhere does the Constitution provide the federal government powers to ban, or even regulate, that which the individual ingests, inhales, or otherwise takes into their body. Nowhere does the Constitution provide powers for the federal government to prohibit the manufacture, sale, or use of drugs either. Quite frankly, the Constitution does not provide the federal government the power to ban anything.

Arguing against the addition of a Bill of Rights to the Constitution, Alexander Hamilton wrote in Federalist #84:

[I] affirm that [a] bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous ... For why declare that things shall not be done which there is no power to do?

Hamilton was arguing that adding a Bill of Rights was redundant, and therefore completely unnecessary.

Because a power not specifically listed in the Constitution, is a power the federal government does not possess. Furthermore, since rights are "unalienable," they have no place in the Constitution at all. His fear was that if the people ever came to believe their rights were mere grants of the Constitution, the federal government would assume unlimited powers unto itself.

Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

As we all know, the proponents of a Bill of Rights won the debate. But to pacify critics like Hamilton, they added the following 2 Amendments.

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

This confirms that rights are "unalienable," and therefore not granted, nor created, by the government or Constitution.

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.

This confirms that the federal government is strictly limited to the powers specifically enumerated in the Constitution.

Why did Congress find it necessary to amend the Constitution in order to prohibit alcohol? The answer is obvious. The power to prohibit alcohol was not provided to the federal government by the Constitution. So in order to acquire this new power, the 18th Amendment was passed.

Why did Congress find it unnecessary to amend the Constitution in order to prohibit other drugs? That's a good question. The Constitution does not provide the federal government powers to regulate or prohibit what an individual ingests, therefore, the entire "war on drugs" represents an illegal (unconstitutional) acquisition of power by the federal government. A police state coup d'état.

[I]f those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence ... that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers ... -- Thomas Jefferson, Kentucky Resolution of 1799.

Opposing the central bank, Jacksonian Era constitutionalist William Leggett wrote (1834):

The Government of the United States is a limited sovereignty. The powers which it may exercise are expressly enumerated in the Constitution. None not thus stated, or that are not “necessary and proper” to carry those which are stated into effect, can be allowed to be exercised by it. The power to establish a bank is not expressly given; neither is incidental; since it cannot be shown to be “necessary” to carry the powers which are given, or any of them, into effect. That power cannot therefore be exercised without transcending the Constitutional limits.

In a strong dissent in Gonzales v. Raich, Supreme Court Justice Clarence Thomas declared:

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers ...

In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana ...

This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

Indeed. If Congress (or the president) can simply deem "illegal by force of law" whatever they want, there's no point to having a written Constitution in the first place.

In Summary

As a constitutional matter - you know, the "supreme law of the land" and everything - if an amendment was required to outlaw alcohol, it should take nothing short of an amendment to ban other drugs too. Until then, anyone who supports the "war on drugs" has simultaneously declared a "war on the Constitution!" Hey, it's either the law or it's not. There is no in between.

If you insist on a paternalistic government, preferring the chaos of government planning to the relative peace of natural society, pass an amendment or take it up in your own state. If you believe heavily-armed SWAT teams, "no-knock" raids, arbitrary searches, civilian deaths, and massive prison populations will immanentize the eschaton, pass an amendment or take it up in your own state.

But until an amendment is passed ... Realize that it's the "drug warriors," along with all their groupies, who are breaking the "supreme law" of our land. And in their zeal to prove themselves "morally superior," they're creating the chaos that's literally tearing our American civilization apart.

  • Sherman Broder

    You are correct. Your article is correct. I agree completely.

    On the other hand, Jack Camwell is correct when he writes:

    "By living in society you submit yourself to the social contract, ie. that there are accepted rules for your safety and that of others, and to be a part of society you agree to follow those rules. When you break the contract, ie. break the rules, you’re punished for it ..."

    What Mr. Camwell does not understand is that the "social contract" of which he speaks IS The Constitution (in addition to our local criminal codes). Another thing Mr. Camwell does not understand is that members of a society may organize themselves anyway they want. They may write whatever rules they want and establish any punishment they want for violations of those rules. They may make any human action they want taboo. The only criteria logic and the economics of cooperative action imposes is the requirement that murder and theft (however defined) be taboo. Without such taboos cooperative action is impossible.

    However, cooperative action in society is a two-edged sword. Just as individuals may agree to cooperate under whatever mutually agreed upon social compact they can come up with, individuals can also decide not to cooperate, or not to cooperate in an established society any further.

    History is rife with examples of societies that have cracked up. Most crackup because intractable disputes develop over differing interpretations of the society's social contract.

    What your article describes is the growing dispute over the powers vested in the federal government by our Constitution. The beauty of our Constitution, as originally written and interpreted, is that power was vested in the states and in individuals, not in the federal government where one-size-fits-all rules inevitably become embroiled in disputes and these disputes inevitably become intractable.

  • Pingback: Saturday Morning Links: The Visions of our Future Edtion |

  • Pingback: Right Wing Extremists: 4th of July - Independence Day Edition | REPUBLICAN REDEFINED