Drugs and the Constitution

October 6th, 2009 12:09 pm  |  by  |  Published in Big Government, Civil Liberties, Constitution, DownsizeDC.org, Drugs, Liberty, Politics  |  5 Responses

D o w n s i z e r – D i s p a t c h

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

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Alcohol prohibition was a failure, so in 1933 the 21st Amendment repealed the 18th Amendment.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

D o w n s i z e r – D i s p a t c h
is the official email list of DownsizeDC.org, Inc.

& Downsize DC Foundation


  1. Malcolm Kyle says:

    October 7th, 2009 at 6:16 pm (#)

    If you support prohibition then you've helped trigger the worst crime wave in this nation's history.

    If you support prohibition you've a helped create a black market with massive incentives to hook both adults and children alike.

    If you support prohibition you've helped to make these dangerous substances available in schools and prisons.

    If you support prohibition you've helped raise gang warfare to a level not seen in this country since the days of alcohol bootlegging.

    If you support prohibition you've helped remove many important civil liberties from those citizens you falsely claim to represent.

    If you support prohibition you've helped put previously unknown and contaminated drugs on the streets.

    If you support prohibition you've helped to escalate Theft, Muggings and Burglaries.

    If you support prohibition you've helped to divert scarce law-enforcement resources away from protecting your fellow citizens from the ever escalating violence against their person or property.

    If you support prohibition you've helped overcrowd the courts and prisons, thus making it increasingly impossible to curtail the people who are hurting and terrorizing others.

  2. Wally D says:

    October 7th, 2009 at 11:12 pm (#)

    Surely you really don't think that any of this will bring our elected representatives to think and act logically and morally. It's about money, and because of the lack of awareness and caring in this nation, the criminals who lie to us to get us to elect them and/or steal the elections will not ever change. In here we are just preaching to the choir and continuing the chain of ignorance. These statements should be made loudly to the people we "elect" to represent us.

  3. Ken Creamer says:

    October 9th, 2009 at 2:18 pm (#)

    You’ll be relieved to know that Congress has not attempted to control drugs in the 50 Union States. Think I’m crazy, go to Poor Clyde’s Almanac (PCA) at poorcludesalmanac.info and read the article “Drug Control.” If you still think I’m crazy, read the article “Dual sovereignty.” Now if you still think I’m crazy I can only conclude that you have a problem with comprehension or that you may be a religious follower of everything you see and hear from the mass media and are quite happy being a serf rather than a Sovereign Citizen.
    Now, in all fairness, I will admit that, like taxes, the federal government is engaged in (and the Union States are allowing) the misapplication of federal law on Sovereign Union State turf. To me, it is this misapplication of federal law within the Sovereign territory of the Union States that is our single most important issue which needs a solution in order to save the Republic. To get a little better insight to this, read the article “The Quiet Unconstitutional Invasion of State Lands by Colorable Federal Laws.”

  4. Ken Creamer says:

    October 9th, 2009 at 2:35 pm (#)

    Let’s not overlook that fact that incarcerated humans and the multitude of agents required getting and keeping them there amounts to a huge number of people who might otherwise be included in the unemployment numbers and keeping the unemployment numbers low, by any means, is politically attractive. The irony of this is that the funds needed to support these people while keeping the unemployment numbers low impacts the free market to such an extent that it, by its very nature, creates more unemployment. Just one more example of Catch 22 Politics, which inevitably is the hallmark of all politics.

  5. Ken Creamer says:

    October 9th, 2009 at 2:39 pm (#)

    Malcolm Kyle,