James Leroy Wilson's blog

Monday, October 05, 2009

Don't read this if you don't care about the Constitution


Quote of the Day: "I want a government small enough to fit inside the Constitution." -- DownsizeDC.org co-founder Harry Browne (1933-2006)

Subject: Drugs and the Constitution

Our last Drug War Dispatch generated some concerned emails.

You can read our response here.

What we didn't mention in the previous Dispatch was the Constitutional problem of the War on Drugs. That's because . . .

Many people seem not to care what the Constitution requires. Today's message is for those who do care.

Drug control is NOT a Constitutional power of the federal government. At the very most the federal government could, perhaps, ban the importation of drugs, and prohibit their sale across state lines under the Commerce Clause of Article I, Section 8.

But nowhere in the Constitution is Congress empowered to prohibit the sale or possession of any item within state boundaries. The Tenth Amendment dictates that whatever Congress is not empowered to do must be left to the States, or to the people. This means Congress cannot . . .

* forbid the personal possession or use of drugs
* prohibit drug sales within the same state
* intervene in other countries with money or troops to fight undeclared drug wars

This means that drug prohibition laws can only exist at the state level. Imagine what could happen if some states had no prohibition laws, while other states had prohibition laws of differing severity. Competing claims about drug prohibition could be tested, in the real world. As it is . . .

Federal prohibition laws not only prohibit the sale and use of drugs, they also prohibit us from learning what would work best.

The 10th Amendment's Constitutional restrictions on federal power used to be well-known and understood. For instance, those who wanted to prohibit alcohol in the 1910's knew that the Constitution didn't give Congress the power to do this. So they had to pass the 18th Amendment, ratified in 1919.

Alcohol prohibition was a failure, so in 1933 the 21st Amendment repealed the 18th Amendment.

If prohibiting alcohol required a Constitutional Amendment, how does prohibiting other drugs NOT require a Constitutional Amendment?

It's an important question. To ignore the Constitutional process is to ignore the rule of law. No matter how one feels about drug use, the rule of law, especially as applied to government power, is essential to protecting our lives, freedoms, and property. With this in mind . . .

We want to ask you to do something different today. We've changed the message to Congress for our "Help End the Mexican Civil War" campaign. For today's action item it reads . . .

"You've sworn an oath to protect the Constitution, so could you please answer three questions. 1. Where does the Constitution authorize the federal government to wage a War on Drugs? 2. If alcohol prohibition required a Constitutional Amendment, how does prohibiting other drugs NOT require a Constitutional Amendment? 3. Shouldn't we be allowed to learn what works best by having states with different drug laws, or NO drug laws, in keeping with the 10th Amendment? I would appreciate an honest, thoughtful response."

If members of Congress receive enough of these messages, some will feel compelled to reply. We want to see what form these responses take, and we'd like to compare the names of those who respond with the list of those who have co-sponsored the "Enumerated Powers Act."

Remember, the "Enumerated Powers Act" would require Congress to cite its Constitutional authority for every law it passes. This would be impossible for them to do in the case of most drug prohibition laws, except those provisions that might squeeze through under the Commerce Clause.

If you receive a response could you please forward it to us, so we can publish it on our blog? Please let us know if you want us to omit your name to protect your privacy. Or, you can post the response in the Comments section of this blog post.

You can send your Constitutional questions to Congress here.

Please share this Dispatch with any friends who care about Constitutional requirements.

James Wilson
Assistant Communications Director


  1. One need not travel to China to find indigenous cultures lacking human rights or to Cuba for political prisoners. America leads the world in percentile behind bars, thanks to ongoing persecution of hippies, radicals, and non-whites under banner of the war on drugs. If we’re all about spreading liberty abroad, then why mix the message at home? Peace on the home front would enhance global credibility.

    The drug czar’s Rx for prison fodder costs dearly, as life is flushed down expensive tubes. My shaman’s second opinion is that psychoactive plants are God’s gift. Behold, it’s all good. Canadian Marc Emery sold seeds that enable American farmers to outcompete cartels with superior local herb. He’s being extradited to prison, for doing what government can’t do, reduce U.S. demand for Mexican.

    Only on the authority of a clause about interstate commerce does the CSA (Controlled Substances Act of 1970) reincarnate Al Capone, endanger homeland security, and throw good money after bad. Administration policy burns tax dollars to root out the number-one cash crop in the land, instead of taxing sales. America rejected the plague of prohibition, but it mutated. Apparently, SWAT teams don’t need no stinking amendment. Father, forgive those who make it their business to know not what they do.

    Nixon promised that the Schafer Commission would support the criminalization of his enemies, but it didn’t. No matter, the witch-hunt stays on. No amendments can assure due process under an anti-science law without due process itself. Psychology hailed the breakthrough potential of LSD, until the CSA shut down research and pronounced that marijuana has no medical use, period.

    The RFRA (Religious Freedom Restoration Act of 1993) allows Native American Church members to eat peyote, which functions like LSD. Americans shouldn’t need a specific church membership or an act of Congress to obtain their birthright freedom of religion. Denial of entheogen sacrament to any American, for mediation of communion with his or her maker, precludes his or her free exercise of religious liberty.

    Freedom of speech presupposes freedom of thought. The Constitution doesn’t enumerate any governmental power to embargo diverse states of mind. How and when did government usurp this power to coerce conformity? The Mayflower sailed to escape coerced conformity. Legislators who would limit cognitive liberty lack jurisdiction.

    Common-law must hold that adults are the legal owners of their own bodies. The Founding Fathers undersigned that the right to the pursuit of happiness is inalienable. Socrates said to know your self. Mortal lawmakers should not presume to thwart the intelligent design that molecular keys unlock spiritual doors. Persons who appreciate their own free choice of path in life should tolerate seekers’ self-exploration.