The Drug War and the Constitution

by Paul Hager

Following is a transcript of the speech I gave at the ICLU Conference. I am appending the companion notes to the end. Text between brackets [] is description or commentary and not part of the actual transcript.

I'd like to draw your attention to companion notes that I put together for this talk. They're located on the tables out back there, and I think that those of you who are doing CLE have them in your manuals.

Well, I'm going to attempt to descend into the murky depths of political philosophy and Constitutional analysis. At the outset, I do have a caveat: the arguments I am going to be presenting have never been endorsed by Congress or the courts and I hope that during the question and answer session we can get into this in a little bit more detail.

The thesis that I want to advance today is that the drug war and the laws that prohibit the private consumption of certain drugs are un-Constitutional. Prohibition laws, themselves, violate every tenet of limited government that is embodied in our Constitution.

To begin, let me pose a question: why was it necessary to amend the Constitution in order to prohibit the drug alcohol? And, while you are cogitating on that: how is it possible to prohibit other drugs without going through the formal amendment process? Well, I think, in order to answer these questions, it's necessary to take a look at what the Constitution is supposed to be.

At the recent confirmation hearings of Judge Clarence Thomas (uh, Clarence Thomas, by the way, -- he and I have at least two things in common: we're both ex marijuana users [chuckles from the audience], and we're both married to attorneys) -- in any case, there was a lot of discussion at the hearings about natural law and natural rights. Just about all of the participants seemed to agree that our system recognizes the existence of "inalienable" natural rights and that government exists to "secure" those rights for its citizens. It's just as well that they agreed on that -- the architects of our system of government, in fact, had that principle in mind, and they viewed the Constitution as being a blueprint for a limited government in which those powers that were to be made available to the federal government would be listed. If a power is not listed in the Constitution, it is not supposed to be available to the Federal government. Two hundred odd years ago, when the Bill of Rights -- which we're here to celebrate -- was being debated, there were those who opposed the Bill of Rights on the grounds that, uh, they're completely unnecessary. It's redundant -- the rights already exist and therefore they don't have a place in the Constitution. In fact, they made the argument that a Bill of Rights is dangerous because at some future point in time, people would get the idea that if a right wasn't to be found in the Constitution -- like privacy -- it did not exist. Perhaps the best articulation I've ever seen of this principle is to be found in _The Federalist Papers_. [I hold up a paperback of _The

Federalist Papers_.] Alexander Hamilton writing in Federalist number 84 -- and I'll just read some of this out to you. He says:

"... bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous."

And then his argument is:

"For why declare that things shall not be done which there is no power to do? 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 pretence 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", he concluded, "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."

Good writer, Mr. Hamilton. [I gestured with the book and put it aside.] Well, anyway, as we know, Hamilton's view did not prevail and 10 of the 12 Amendments that were proposed as a Bill of Rights were ratified in December of 1791.

In order to mollify critics and meet the arguments of people like Hamilton, language was added to the Bill of Rights to address this idea of limited government and natural rights.

I just happen to have a copy of the Constitution here -- don't leave home without it [I hold up my pocket copy of the Constitution]-- and I'll read the language that bears on this.

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

That's the 9th Amendment, this lays out that whole idea of rights existing apart from the Constitution.

And then we have:

"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."

That's the 10th Amendment and that has to do with delegation of powers and the idea of limited government.

Well, let's go back to those questions. I think the answer to the first question is fairly straightforward -- this idea of alcohol prohibition. We were talking about a new power that was being acquired -- surrendered by the people and the states - and so the 18th Amendment was passed to give that power to the Federal government. In the case of our second question -- prohibiting other drugs -- I would argue that we are talking about new powers being granted to the Federal government that have never been surrendered by the people and the states. Ergo, the drug war, prohibition laws, the DEA, the whole ball of wax, are all unconstitutional. I think what we have here is a prime example of the illegal acquisition of powers by a central government through a process of slow accretion. And this was exactly the sort of thing Hamilton was warning against back in 1787.

If it is the case the federal government can't get involved in the prohibition business, what about the state governments? Uh, I think one answer to this is to look at the right of privacy which is protected by the 9th Amendment and extended to the states by the 14th. The right has been invoked to protect privacy in such areas as family planning -- birth control -- and, at least so far, the right of privacy seems to be protecting a woman's choice whether or not to have an abortion. Furthermore, this same right should apply in matters involving an individual's decision to consume, privately, a recreational drug in his or her home.

One argument that might militate against this idea of a right of privacy taking precedence might be -- uh, well, what if the people who use drugs are infringing on the rights of other people. For example, users of cocaine and opiates. Is there a compelling state interest -- is there some kind of balancing test that we can apply that gives the state the right to intervene?

I'd like to pose a hypothetical here that we can use for the purposes of analysis. Let's posit the existence of a drug that is 100% addicting and potentiates violence in its users 100% of the time. I think we'd have a very clear case of there being a compelling state interest to get itself involved in prohibiting this drug on the grounds that the state is protecting the rights of the non-users. Well, suppose we begin reducing those percentages. Let's suppose that we're talking about a drug that is 15% addictive and potentiates violence in some lesser percentage of its users. We have an empirical answer for that:

I've just described alcohol. And, just for another for instance, let's suppose that we have a drug that is 90% addictive but doesn't seem to correlate with violence at all. Again, empirically we have an answer: I've just described cigarettes.

I would argue that pharmacological and population data can be adduced to compare alcohol and tobacco with other drugs like opiates and cocaine derivatives. And, if we do this, we find that alcohol is, in fact, more addictive than many forms of opiates and many forms of cocaine although less addictive than crack cocaine. Furthermore, smoked tobacco is generally recognized as being the most addictive drug around. That other area, having to do with violence and anti-social behavior, once again we find that the drug that is the greatest potentiator of violent behavior is alcohol. And if we look at the other drugs like opiates and cocaine, we find that most of the violence that is associated with these drugs is associated with the black market/organized crime component of the drug trade and is not a pharmacological feature of the drug itself.

Well, I'm the political coordinator of the Hoosier Cannabis Re-legalization Coalition, and I haven't said a word about marijuana yet and I probably should -- uh -- marijuana, which is the Nation's number one illegal drug, which is estimated to have been used by over 60 million people, is recognized as being relatively non-addictive. For a point of comparison, if we look at the common drug caffeine -- which I was dosing myself with earlier today -- caffeine, which is in coffee and soft drinks, is generally recognized as being more addictive than marijuana.

Furthermore, no scientific evidence has ever been brought forth that would support the idea that marijuana leads to violent, anti-social behavior. Thus, by no stretch of the imagination is there a rational or scientific justification for marijuana prohibition and, perforce, there is no marijuana prohibition law that passes Constitutional muster. Moreover, using alcohol and tobacco as our metrics, even heroin and crack prohibition cannot be justified.

At this point, it's probably time to boldly go where no Constitutional interpreter has gone before and so I'm going to move into more speculative areas. The 1st Amendment, which protects religion and speech, I think also by extension protects thought and belief. Well, what is the seat of religion, thought and belief? [A pregnant pause.] The brain, right? [Tapping my cranium.] In fact, speech and belief are manifestations of the internal state of a person's brain. Science is beginning to inform us as to how chemicals and neurotransmitters, indeed the physical "wiring" of our brain defines who we are and how we think. Unless we get involved in metaphysics I think we have to recognize that there is physical basis for belief. Where I'm heading with this is that, if it is the case that your physical brain state determines whether you are a Methodist, an agnostic, or a Nazi then clearly the state of your brain is protected in some sense. The question I'd like to put to you is: if it is the case that the 1st Amendment allows a person to alter his or her cognitive system by reading "Mein Kampf" -- which might well alter it permanently, you might become a Nazi for the rest of your life -- then how is it possible for the government to step in and say that a person may not temporarily alter his or her cognitive system for two or three hours by smoking a marijuana joint? [Scattered applause.] Also, another way of looking at this same thing is, what is the rationale for saying that programming your brain across the visual or aural pathways is OK but programming your brain _chemically_ across the blood-brain barrier is not?

And finally -- uh, and I think that this is the most frightening prospect in this whole thing -- consider this: if a state government can come up to you and can say, you may not pass delta-9-THC -- the principal intoxicant in marijuana - you cannot pass that across your blood-brain barrier, what is to prevent a state from saying at some point in the future, you _must_ pass drug X -- let's call it soma like in _Brave New World_ -- you must pass soma across your blood-brain barrier? I guess what I'm arguing is that the government has intruded into your biochemical and physiological brain and in principle, once the government can do this, then in principle the government can control any part of your body.

I think I've just about wrapped up the general comments I wanted to make. One thing I might suggest: we might also talk about some specific areas where government has been in violation of Constitutional rights all at the behest of this drug war.

Thank you.

---------------------companion notes to talk-------------------

The Drug War and the Constitution

by Paul Hager

Companion Notes

By focusing on the Constitutional dimension of drug prohibition, I've attempted to approach the issue from a different perspective. In claiming that the drug war and drug prohibition violate the U.S. Constitution and fundamental principles of civil liberty I am aware that there is a dearth of present day case law to support my arguments. Instead, I have relied on the writings of Hamilton, Madison, and Jay in The Federalist Papers and, to a lesser extent, selected writings of Thomas Jefferson that appear in Jefferson: Writings (Merrill D. Peterson wrote the notes and selected text, ISBN 0-940450-16-X).

I assert that current prohibitionist policy entails a grant of power to government that was never contemplated and was, in fact, explicitly rejected by the framers of the Constitution.

The Harrison Act of 1914 was the first major step by the Federal government in the direction of drug prohibition. The 18th Amendment and the enabling legislation of the Volsted Act were to come later, in 1919 and 1920 respectively. An excellent analysis of the case law interpreting the Harrison Act is to be found in Arnold S. Trebach's book, The Heroin Solution (Yale University Press, 1982, ISBN 0-300-02773-7), chapter 6. For a short overview of drug prohibition "cycles" in U.S. History, and the place of the Harrison Act in them, see "Opium, Cocaine, and Marijuana in American History", by David F. Musto, Scientific American, July 1991, volume 265, number 1.

An excellent source on the "heroin problem" and possible solutions is The Hardest Drug: Heroin and Public Policy , by John Kaplan (University of Chicago Press, 1983, ISBN 0-226-42427-8). Professor Kaplan devotes the first two chapters of the book to exploding the myths about heroin's addictiveness and dangers that have been used to justify its prohibition. Kaplan also argues that the Harrison Act was in large part responsible for the development of many of the social problems that we now associate with heroin use and considers the Act to have been a mistake. Unaccountably (given the foundation he lays), Kaplan shies away from legalization strategies completely and offers heroin maintenance programs with possible coercive treatment as his alternative to the present approach. Arnold Trebach, on the other hand, argues in his book that doctors should be allowed to prescribe heroin to addicts as needed and to include heroin in their pharmacopoeia. Trebach's legal analysis of the Harrison Act (mentioned above) is used to buttress his argument in favor of a liberal interpretion of the Act. Interestingly, Kaplan, who considers the Act to have been a mistake, favors a much more restrictive solution than does Trebach who considers the Harrison Act to have been an appropriate piece of social engineering.

On the subject of marijuana, John Kaplan is also the author of a book entitled Marijuana -- the New Prohibition (1970). Kaplan argued convincingly for marijuana decriminalization in this book. Arnold Trebach is currently the head of the Drug Policy Foundation, an organization that seeks alternatives to the drug war. The organization generally favors full legalization of marijuana but embraces a variety of opinion regarding changes in the legal status of other drugs.

The issue of "addictiveness" of drugs is complicated. The term itself has fallen into disfavor among the scientific establishment and "drug dependence" is generally preferred. I will stick with the more common term for simplicity. It turns out that the picture of addiction that is a favorite with police departments and drug czars is far from accurate. In "The Tragedy of Needless Pain", (by Ronald Melzack, February 1990, Scientific American), scientific evidence is presented that morphine used for pain relief is not addictive. Trebach notes statistics that gave a rate of 500,000 heroin addicts and 3,500,000 "chippers" or non-addicted occasional users in the late 1970's which would mean a 12.5% addiction rate. Laboratory studies show a higher rate but these studies use medical grade, pure heroin. In Health Consequences of Smoking: Nicotine Addiction (Surgeon General's Report, 1988), a comparison is made of the relative addictiveness of smoked tobacco and several other drugs (the 15% figure for alcohol comes from this source). The Surgeon General's Report observes that of service men who became addicted to heroin in Vietnam, aproximatedly 90% were able to avoid readdiction upon return to the U.S. The report also mentions the frequency of "chipping" in heroin use but notes that nonaddicted cigarette users are exceedingly rare. The addiction rate of 90% for cigarette smokers also derives from the Surgeon General's Report.

Other sources that give some picture of comparative addiction include "Drug Prohibition in the United States: Costs, Consequences, and Alternatives" by Ethan Nadelmann (Science, September 1, 1989). In building his case for drug legalization, Nadelmann cites National Institute on Drug Abuse (NIDA) research that gives a surprisingly low value for cocaine addiction rates.

A more complete comparision of addictive potentional is to be found in the magazine, In Health, in an article entitled "Hooked, not Hooked" by Deborah Franklin (Nov/Dec 1990). Franklin cites addiction experts' rankings of various legal and illegal drugs as follows (p. 41):

1) Nicotine

2) "Ice" (smoked methamphetamine)

3) Crack

4) Crystal Meth (injected methamphetamine)

5) Valium (diazepam)

6-8) Quaalude

6-8) Seconal (secobarbital)

6-8) Alcohol

9-10) Crank (snorted methamphetamine)

9-10) Heroin

11) Cocaine

12) Caffeine

13) PCP

14) Marijuana

15) Ecstasy (MDMA)

16-18) Psilocybin Mushrooms

16-18) LSD

16-18) Mescaline

(The rankings as they appear in the magazine are in the form of a bar graph -- I've converted them to a rank ordering. Note also that, although amphetamine is broken down according to the method of administration, other drugs with multiple modes of administration are not. I.V. injection will, for a number of reasons, be more addicting than oral ingestion. Concentration is also an important factor as well. Although the "potency" of heroin is considered to be 3 to 4 times that of morphine, heroin is actually diacetylmorphine -- morphine reacted with acetic anhydride. In the body, heroin breaks down to morphine in order to produce its effect. Apparently, the "potency" of heroin is the result of the ease with which heroin crosses the blood-brain barrier before it breaks down to morphine.)

The Drug Policy Letter, Vol II, number 2, Mar/Apr 1990 (a newsletter published by the Drug Policy Foundation) uses a back- of-the-envelope calculation to expose the myth that "crack is the most addictive drug known to man." It is often said that if one uses crack just once, a person is addicted. According to the NIDA-sponsored National Household Survey, 2.5 million people have tried crack, and 480,000 used it in the month prior to the survey. Even if one assumed that anyone who used the drug in the past month was an addict, that would still give an addiction rate of only 19%. Using this same method for alcohol would give a 62% rate and, for powdered cocaine a 13% addiction rate. Though this is not the sort of analysis that should be used to gauge addiction rates, it does give the lie to the "one puff and you're hooked" claim.

A number of the sources cited above present evidence that violent criminal activity associated with heroin and cocaine use is actually the result of the high cost of the drugs coupled with the low socio-economic status of inner-city addicts. In other words, violent crime is not a pharmacological feature of the drug itself but a reflection of black market economics. The same Drug Policy Letter cited above also reports on research done by Goldstein, Brownstein, Ryan, and Bellucci on the drug component of violence in New York City. They found that only a very small proportion of drug-related murders were a function of the drug itself and most of those were caused by alcohol. Heroin and other opiates, in particular, are well known to not provoke aggressive or violent behavior in people under the influence.

Two monographs by Professor Bruce L. Benson and Professor David W. Rasmussen of the Policy Sciences Program of Florida State University in Tallahassee give another view of drug use and violent crime from the perspective of incarceration rates in Florida. Benson and Rasmussen find that the overwhelming number of people who have been arrested for a drug offense have no arrest history for a violent or property crime. (See "Drug Offenders in Florida", July 1990, and "Drug Crime and Florida's Criminal Justice Problem", December 1990.) This is not the result one would expect if the drug-violent crime connection were as intertwined as apologists for the drug war would have us believe.

Notes on Additional Materials

Along with these notes, I'm including two additional items. The first is "Marijuana Myths", a collection of some typical anti-marijuana and D.A.R.E. Program falsehoods and their refutation. Each of the numbered refutation sections has an associated reference section which will allow readers to check my sources. The second item is Report #126 of the ABA Law Student Division which recommended that the ABA reverse its 18 year position favoring marijuana decriminalization. Report #126 offers no references of any kind, scientific or otherwise. This is understandable because most of its assertions are without scientific foundation. If this represents the sort of evidence that is considered acceptable for a major policy reversal of the ABA, I believe it reflects badly on the level of scholarship practiced by the national organization.

One item that appears in #126 deserves a comment. Much is made of the increased potency of marijuana. In the Journal of Psychoactive Drugs, Vol. 20(1), Jan-Mar 1988, Tod Mikuriya, M.D. and Michael Aldrich, Ph.D. address this matter in "Cannabis 1988 Old Drug, New Dangers The Potency Question." In a careful piece of research, Mikuriya and Aldrich demonstrate that a review of independent, contemporary assays of imported marijuana from the early 70's show it was every bit as potent as modern domestic sensimilla varieties. (Anyone who has personal experience with Thai Sticks, Panama Red, and Oaxacan in the period from the late 60's to early 70's can attest to the potency of the imports.) They also reveal that improper DEA and police evidence handling techniques (e.g., no refrigeration of seized marijuana) led to an underestimate of street potency in the 1970s because samples degraded rather quickly in evidence warehouses. Besides the country's illicit experience with marijuana, Mikurya and Aldrich point to the extremely potent forms of cannabis (i.e., marijuana) tonics that were in common use in the United States prior to marijuana prohibition in the 1930's. Such tonics were frequently given to children with no reported ill effects. Eli-Lilly and Parke, Davis, & Co. entered into a "joint" venture to produce a potent strain of domestic cannabis sativa for their cannabis pharmaceuticals which they called cannabis americana (note: a picture of the 1929 Parke-Davis catalogue for "Cannabis U.S.P." can be found on page 113 of Dr. Andrew Weil's book, Chocolate to Morphine: Understanding Mind-Active Drugs, written with Winifred Rosen, 1983, ISBN 0-395 -33108-0). Parke-Davis claimed uniform effectiveness for their cannabis extract at a 10 milligram dose level (the effective dose of pure delta-9-THC, the main cannabinoid, is between 25 and 50 micrograms per kilogram). For those who appreciate irony, take note that Parke-Davis, which used to make a profit from selling legal cannabis, now makes money from marketing drug testing kits which primarily detect marijuana use.