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Federal Drug Laws Violate the American Constitution
By AlucardOrange3 | 10-10-04 | Marijuana.Com Exclusive

A simple poll would be enough to show that the vast majority of Americans agree with the need for the prohibition of certain drugs, and since the layman mistakenly believes that laws ought to reflect the moral atmosphere of the society they govern, there is no widespread movement to abolish drug laws (with the possible exception of laws prohibiting Cannabis). However, the government of the United States of America is itself governed by a document called the Constitution. This document, among other things, clearly delineates what powers the federal government shall have while explicitly stating that all powers not mentioned are reserved by the States or the people. The tenth amendment reads, “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.”

Anyone curious as to what those specific powers might be need look no further than Article I, Section 8 of the Constitution, “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; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; To provide for the punishment of counterfeiting the securities and current coin of the United States; To establish post offices and post roads; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; To constitute tribunals inferior to the Supreme Court; To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; And to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

As you may have noticed, the list of powers does not include creation and enforcement of bans upon actions considered morally wrong by society at large. Similarly, nowhere is the federal government granted the power to make laws to ensure that citizens do not inflict harm upon themselves or consume arbitrarily selected substances. Since the power to regulate consumption of drugs (or consumption of anything for that matter) is not contained in the above-mentioned Enumeration of Powers, the federal government does not legally have that power.

As the ninth amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” As applied to the issue at hand, the fact that there is no enumeration in the Constitution specifically granting people the right to regulate their own consumption of drugs shall not be construed to deny this right to the people. According to the Constitution, then, it is every free, American citizen’s right to regulate their own personal consumption of drugs, unless that right has been granted to a given state by the people within that state. Furthermore, it is clear that nothing short of a constitutional amendment can grant the federal government the power to take away or limit that right, as history proved with the Noble Experiment.

Despite being poorly thought out and poorly enforced, the Noble Experiment, known today as ‘Prohibition’, was at least constitutional in that an amendment was passed specifically giving the federal government the right to ban the transportation, commerce, possession and consumption of alcohol. No such amendment exists regarding any other intoxicating substance, and the Prohibition amendment was itself repealed by another amendment passed fourteen years later for the simple reason that Prohibition caused far more misery than it alleviated. Whether or not prohibiting free citizens from altering their consciousness chemically is a good idea is up to individual opinion; the point is that the Constitution, in its current form, does not legally allow the federal government that power.

Not surprisingly, Congress has taken it anyway in the form of the Controlled Substances Act of 1970. The presumptuous nature of this Act is readily apparent, and Section 801A announces, “The Congress has long recognized the danger involved in the manufacture, distribution, and use of certain psychotropic substances for nonscientific and nonmedical purposes.” How motherly of the Congress to recognize that danger on behalf of the helplessly ignorant citizenry. The condescension continues with the assertion that Mother Congress “has provided strong and effective legislation to control illicit trafficking and to regulate legitimate uses of psychotropic substances in this country.” The apparent strategy here is to use the text of the law to praise itself, drawing attention away from the fact that no matter how ‘strong and effective’ this legislation is, it is unconstitutional and therefore legally null and void.

Then there is the common sense perspective: it might seem odd to some that Congress recognizes the danger of private citizens self-administering certain drugs to be so imminent as to demand the fining and imprisonment of those citizens, while simultaneously failing to recognize the danger of many other perilous activities such as running on slippery pavement, breathing the air in Los Angeles, playing contact sports, and swimming in the ocean. It would be absurd to expect the government to regulate the activities listed above, and downright ludicrous to suggest that they be banned altogether because of the threat to public health. It is similarly ridiculous to let the government infringe on a private citizen’s liberty to use drugs in the name of protecting that citizen’s safety. As Benjamin Franklin said in the 18th century and many who value freedom have echoed since, “Those who are willing to sacrifice liberty for security deserve neither!”

The list of civil liberties that American citizens are entitled to by birthright is by no means limited to those specifically guaranteed by the Bill of Rights and subsequent amendments. The ninth and tenth amendments make it crystal clear that included on the list of civil liberties is every conceivable freedom not given over to government regulation by Article I, Section 8 of the Constitution. The choice to consume intoxicants is one of those freedoms which even a cursory examination of the Constitution shows is undeniably retained by the people, and until an amendment is passed granting the federal government jurisdiction over the issue of drug consumption, all current federal laws and statutes concerning that consumption are illegal assaults on civil liberty.

{Marijuana.Com would like to thank AlucardOrange3 for this excellent work.}

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