By Eric Lee | USA

Since the ratification of the Constitution in 1789, the federal government has expanded exponentially. Voter apathy, the misguided good intentions of many, and the malicious lust for power of a select few have combined to create a massive, labyrinthine bureaucracy that constantly interferes with the lives of the citizens whose rights it is entrusted with defending. Symptomatic of this trend is the War on Drugs, a stellar example of the federal government’s unconstitutional expansion and abuse of power. Acting of its own volition, the federal government has inverted the Constitution and given itself the power to decide what substances can be possessed by the individual, and in its zeal to protect Americans from their own questionable decisions, has stomped on the rights of the individual. In theory and in practice, the war on drugs is unconstitutional, and it is well past time for this illegal crusade against certain substances to cease.

The regulation of controlled substances within state boundaries is well outside the realm of federal authority. Congress is given very specific powers, and the regulation of various substances is not one of those powers. This is left up to the states, as per the Tenth Amendment’s requirement that “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” (Constitution of the United States). According to Laurence M. Vance of New American, since Congress is not authorized to regulate such matters, it would take a constitutional amendment to ban drugs such as heroin, marijuana, or cocaine, just as a constitutional amendment had to be ratified to ban alcohol and enact Prohibition, a horrific failure in its own right (Vance 5). However, in Gonzales v. Raich (2005), the Supreme Court held that since Congress has the power to regulate interstate commerce, it also has the power to regulate anything that might affect interstate commerce. As a result, it declared that the DEA’s destruction of privately grown marijuana plants, earmarked for personal medical use and legal under California state law, was constitutional. The fact that the small-scale cultivation of plants is neither interstate nor commerce, nor has any effect on interstate commerce, was seen as inconsequential (Gonzales). The idea that there can be blanket bans on naturally growing plants under the guise of regulating commerce is ridiculous. By this logic, Congress could ban the interstate transport of apple juice, and send federal agents out to destroy the nation’s apple trees in pursuit of its goal. In his dissent, Justice Thomas saw the dangerous folly of the ruling, reasoning that “if Congress can regulate [marijuana cultivation] under the Commerce Clause, then it can regulate virtually anything- and the Federal Government is no longer one of limited and enumerated powers” (Gonzales). Despite the preposterous legalese that the government uses to shroud its excesses, the federal government never had and never will have the authority to ban drugs, barring a future constitutional amendment.

Even if we pretend that the federal government had the authority to launch a war on drugs, it is undeniable that civil liberties have been violated many times in pursuit of its goals. In drug cases, the Fourth Amendment has been shredded. Probable cause is no longer necessary to obtain a warrant, and evidence from searches undergone without a proper warrant has been used in court. According to Judge Robert W. Sweet, “these holdings have been characterized as ‘the drug exception to the Fourth Amendment.’” The idea that the government can kick down your door based on the “good faith” of a police officer or “anonymous tips and tips from informants known to be corrupt and unreliable” and then use that evidence in court against you is a “debasement of the rule of law” (Buckley et al. 15-16). Thanks to a drug-related case, the Supreme Court now views probable cause as “a fluid concept- turning on the assessment of probabilities in particular factual contexts–not readily, or even usefully, reduced to a neat set of legal rules” (Illinois v. Gates). This standard is not one conducive to the defense of privacy rights. It leaves much up to interpretation, and there will inevitably be certain judges that stretch the “fluid concept” of probable cause to ridiculous and disturbing levels. Of course, illegal invasions of privacy are the only way to realistically restrict drug use, as few people are going to call the police to inform them of a nearby consensual sale or the smell of burning marijuana. As Ethan A. Nadelmann, former professor of political science at Princeton University, puts it, no endeavor meant to keep people from exercising their right to self-determination “can succeed so long as we remain a free society, bound by our Constitution” (Buckley et al. 5). Americans must choose between keeping their constitutional protections against unreasonable search and seizure or preventing their neighbor from smoking a joint, and it is fairly clear which road we should go down. In recent years, the war on drugs has been the primary catalyst in the destruction of our Fourth Amendment rights, and it is time for the erosion to stop.

The federal war on drugs is quite possibly the greatest attack on constitutional law in the history of the United States. The federal government has taken it upon itself to hunt down and punish Americans for ingesting substances into their own bodies, and has trampled over the rights of everyone in their zest to capture a select view. If Americans are to preserve the remaining scraps of federalism and privacy rights, they must reverse this trend of ever-increasing federal power and ever-more-lax restrictions on search and seizure. The American people are walking down the road to the gallows of the Constitution and the death of limited government, and it is imperative that we turn down a different path before we lose other fundamental rights.

Works Cited

Buckley Jr., Wm. F., and Others. “The War on Drugs Is Lost.” National Review 1996 feb: 34-48. Web. 4 Sept. 2017.

“The Constitution of the United States: A Transcription.” National Archives and Records Administration. National Archives and Records Administration, n.d. Web.

“GONZALES v. RAICH.” Web. 4 Sept. 2017.

“ILLINOIS v. GATES ET UX.” Web. 4 Sept. 2017.

Vance, Laurence M. “The Other Unconstitutional War.” New American 2011 nov: 20-24. Web. 4 Sept. 2017.