09 May 2008
The War on Some Drug and Users:
And it’s Effects on Civil Liberties in America
Since its inception, the War on Some Drugs and Users has been an active influence on civil rights and liberties for the American citizen. This can be shown by several acts passed through Congress, and also by decisions held by the Supreme Court that have taken civil liberties away as well as given them back. Though not all acts passed through Congress and decisions held by the Supreme Court were are a part of this system, but those that held the most prominence and standing most often have worked to take basic civil rights and liberties away from American citizens. There have been times when the Federal Government has reversed decisions; however, they only replace them with stronger and more invasive pieces of law. Some of the acts passed by Congress that will be reviewed include; The Harrison Narcotics Act, The Volstead Act, The Marihuana Tax Act, The Controlled Substances Act and the Aid Elimination Penalty Provision of the Higher Education Act. Some the cases seen by the Supreme Court include; Linder v. United States, Leary v. United States, and Gonzales v. Raich.
The first piece of law that began the War on Some Drugs and Users, before anyone had even heard of a War on Drugs, came in response to an international treaty signed at the International Opium Convention in The Hague, The Netherlands in 1912 by the United States and twelve other countries including Persia (Iran), Russia, China, France and Japan. In response to this treaty, which was signed by the United States as a means to better control opium users in the newly acquired territory of the Philippines, then Secretary of State William Jennings Bryan spoke before the Senate in 1914 and urged them to pass the Harrison Narcotics Act in order to comply with the international treaty. A submissive Congress passed the Act with little debate, and what seemed like a simple registration law act was manipulated into being the United States’ first federal drug prohibition law. A piece of the statute read; “[n]othing contained in this section shall apply . . . to the dispensing or distribution of any of the aforesaid drugs to a patient by a physician, dentist, or veterinary surgeon registered under this Act in the course of his professional practice only.” The key to manipulating this phrase was “in the course of his professional practice only”, which law officials took to mean that a doctor could not prescribe an addict opium to fulfill his addiction. At this time in history, addiction was not seen as a disease but a choice, and as such a doctor could not prescribe an addict his fix, since he couldn’t be a patient if he wasn’t sick. The Harrison Narcotics Act was the first drug “registration” law in the United States, and henceforth was the first viable source of denial of basic civil rights, like an access to medicine, that pushed the United States Government to further expansions and interventions into the private lives of Americans around the country.
Linder v. United States was decided in 1925 in response to the Harrison Narcotics Act. Dr. Charles Linder had been prescribing opiates to patients of his who were addicted to the medicine. He was subsequently prosecuted and charged with violating the Harrison Act considering that the act prohibits that very action. The Supreme Court saw the case and immediately overruled Linder’s charges, saying that the Federal Government had doesn’t have the authority to regulate how doctors can prescribe medicine. Here is a perfect example of Congress overstepping its bounds, with the Supreme Court putting them back in their place. In writing the majority opinion, Justice James McReynolds wrote; “Federal power is delegated, and its prescribed limits must not be transcended even though the end seems desirable … [W]e cannot say that …the doctor necessarily transcended the limits of that professional conduct with which Congress never intended to interfere.” Here Justice McReynolds clearly says that Congress has overstepped their bounds by trying to regulate how doctors prescribe their patients. There are many other cases where the Supreme Court has decided that the Congress has overstepped their authority; some examples include United States v. Lopez, and City of Boerne v. Flores both instances where the Supreme Court decided that Congress had gone too far in enacting laws. Congress itself has no authority to regulate drugs, just commerce, which is what they used as a basis for the Controlled Substances Act.
The Harrison Narcotics Act, by means of a simple phrase, had been manipulated to be used as a method of prohibition of opiates. The next pair of prohibition laws was not as sneaky in prohibiting their illicit drugs. The Volstead Act of 1919, paired with the Eighteenth Amendment of the Constitution made up the brunt of alcohol prohibition law. An era so infamous it can be called Prohibition. Unlike the Harrison Narcotics Act and the Marihuana Tax Act, which will be covered later, which were enforced by means of easily-manipulative language, the Volstead Act and the Eighteenth Amendment explicitly prohibited the use of alcohol. The Volstead Act read; “No person shall…manufacture, sell, barter, transport import, export, deliver, furnish or possess any intoxicating liquor” and the Eighteenth Amendment reads; “After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.” Both of these pieces of law directly outlawed the possession, consumption, sale, etc of alcohol explicitly and did not leave any room open for manipulative text. Another interesting difference between the alcohol prohibition and opiate and marihuana prohibition is that it seems Congress pulled their authority to implement the Harrison Act and the Marihuana Tax Act out of thin air, while with the Volstead Act, they actually wrote their authority into the Constitution with the Eighteenth Amendment. Along with the Thirteenth Amendment, the Eighteenth Amendment was one of only two constitutional amendments that actually prohibit private conduct. Once the Twenty-First Amendment was ratified in 1933, and Prohibition had ended, the transfer of alcoholic beverages across state lines was still prohibited; still prohibiting what some may argue is still private conduct.
Several cases have been decided by the Supreme Court that signifies a right to privacy delegated by the Constitution. Griswold v. Connecticut and Roe v. Wade are perfect examples of Supreme Court cases that show that the Constitution grants citizens a right to privacy. Consumption of alcohol, opiates or cocaine in one’s home seems to be something that would be protected by a right to privacy, as they are all victimless crimes that can be committed within one’s own home and do not affect anyone else but the user. A passing of the Twenty-First Amendment by state conventions shows that the Eighteenth Amendment was truly against the will of the people in that in was passed via delegates elected at a convention rather than political elites on Capitol Hill. The passing of the Twenty-First Amendment returned the power of regulating alcohol to the States, where it belongs, per the Tenth Amendment which says; “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.”
The Marihuana Tax Act would be the next piece of law attempted to be pushed through Congress. Just like in 1914 when William Jennings Bryan pushed the Harrison Act, Henry Anslinger, the then Commissioner of the Federal Bureau of Narcotics, was the major influence on Congress to push the Marihuana Tax Act. Just as the Harrison Act was passed under a blanket of racism against Chinese, and the Volstead Act under a blanket of racism against Germans, the Marihuana Tax Act was passed under a blanket of racism against Mexicans. The Marihuana Tax Act would have gone nowhere if it wasn’t for the racist propaganda propagated by William Randolph Hearst. Hearst, owner of Hearst Newspapers, often published yellow journalism pieces in his newspapers, which at their height, reached eighteen major United States cities, totally over twenty million readers. His articles greatly exaggerated the effects of marihuana, even delving into racism against African Americans claiming; “Marihuana influences Negroes to look at white people in the eye, step on white men's shadows and look at a white woman twice.” The great majority of Anslinger’s statements during his congressional hearing were merely quotes from Hearst’s newspapers and magazines. Again, like the Harrison Act, the Marihuana Tax Act was passed with easily manipulative language. The Act was another prohibition law disguised as a registration law. The law reads; “[e]very person who imports, manufactures, produces, compounds, sells, deals in, dispenses, prescribes, administers, or gives away marihuana shall …pay the following special taxes respectively…”. Here again what seems like a simple tax law, is instead a prohibition law. Had Congress written a prohibition law more similar to the Volstead Act
In 1966, on a vacation with his daughter and son to Mexico, Timothy Leary was arrested for possession of marihuana, under the Marihuana Tax Act. Leary, already well-know throughout the counterculture as a psychedelic prophet, he was also later to be known as “the most dangerous man in America” by President Richard Nixon. He appealed his conviction all the way to the Supreme Court on the grounds that the Marijuana Tax Act was a violation of the protection from self-incrimination, given to American citizens by the Fifth Amendment of the Constitution. In a unanimous decision, the Court decided that the Act was, in fact, a violation of self-incrimination. Justice Harlan wrote in the majority opinion for Leary v. United States; “[the law] required him, in the course of obtaining an order form, to identify himself not only as a transferee of marihuana but as a transferee who had not registered and paid the occupational tax … [therefore] we can only decide that when read according to their terms these provisions created a ‘real and appreciable’ hazard of incrimination.” So, once again, the Supreme Court shuts down a law written by Congress as a violation of a civil liberty, this time the right to protection from self-incrimination, which according to Miranda v. Arizona, “…has had a long and expansive historical development, [and] is the essential mainstay of our adversary system…”. Unfortunately for Leary, who was an avid advocate of recreational drug use, the repeal of the Marihuana Tax Act did not last long, and we soon replaced, not even a year later, with the Controlled Substances Act.
In 1970, in response to the Court’s unanimous decision in Leary v. United States, Congress quickly passed the Controlled Substances Act as Title II of the Comprehensive Drug Abuse Prevention and Control Act. This Act separated all controlled substances into five different schedules based on potential for abuse, potential for dependence, and accepted medical use. Here, Congress assumed the power of drug regulation via the Commerce Clause of the first article of the Constitution. While the Controlled Substances Act was being drafted, President Nixon created the National Commission on Marihuana and Drug Abuse, also known as the Shafer Commission. Prominent Republican and former Governor of Pennsylvania Raymond Shafer was the chairman of this commission, who, in his findings, recommended that small amounts of marijuana be decriminalized for simple possession. Shafer also wrote;
“While the judiciary is the governmental institution most directly concerned with the protection of individual liberties, all policy-makers have a responsibility to consider our constitutional heritage when framing public policy. Regardless of whether or not the courts would overturn a prohibition of possession of marihuana for personal use in the home, we are necessarily influenced by the high place traditionally occupied by the value of privacy in our constitutional scheme.”
Citing a Supreme Court of Kentucky case, Commonwealth v. Campbell, as well as United States Supreme Court cases; Ah Lim v. Territory, Olmstead v. United States, and Griswold v. Connecticut, Shafer argued that the Fourth Amendment’s protection from unreasonable search and seizures reflected a value of individual privacy. He argued that no court could legally declare a drug prohibition law to be constitutional, as it violated this fundamental right of individual privacy in the Constitution. Nixon completely disregarded this commission and signed the Comprehensive Drug Abuse Prevention and Control Act on October 27th, 1970.
Since its signing into law, the Controlled Substances Act has been brought on trial before the Supreme Court twice; first in the case United States v. Oakland Cannabis Buyers Co-Op in 2001 and then in Gonzales v. Raich in 2005, with both cases coming out of the state of California. In the first case, the defendants argued that patients needed their medicine and there was a “medical necessity” that superseded the federal law prohibiting marijuana use. The Supreme Court disagreed and in writing for the majority Justice Clarence Thomas wrote; “When it passed the Controlled Substances Act, Congress made a value judgment that marijuana had ‘no currently accepted medical use.’ It was not the province of the Court to usurp this value judgment made by the legislature.” Here, Justice Thomas makes the seemingly contradictory claim that it is not the Court’s jurisdiction to reverse decisions made by the legislature. Though in cases that have already been mentioned including City of Boerne v. Flores and Linder v. United States the Supreme Court has done exactly that and “usurped the value judgment made by the legislature”, and specifically in Linder, where they deal with how the government deals with doctors and what they prescribe to patients, which is extremely similar to this case. In Gonzales v. Raich the defendants moved passed the “medical necessity” argument and instead argued that the Commerce Clause does not grant Congress the authority to regulate marijuana. The Supreme Court disagreed, seemingly contradicting cases like United States v. Lopez and United States v. Morrison where the Court scaled back the authority of Congress to use the Commerce Clause as means of making laws.
All of these pieces of legislation and cases display the role that the War on Some Drugs and Users plays on civil liberties in the United States. While, in the past, most of the laws that hurt civil liberties in America were overturned and ruled unconstitutional by the Supreme Court, the Controlled Substances Act has stood up against several trials in front of the Supreme Court, and has yet to be deemed unconstitutional. Not many new drug prohibition laws have been passed since 1970, but in 1998, Mark Souder, Representative from Indiana, introduced the Aid Elimination Penalty Provision to the Higher Education Act. This Amendment required students applying for Financial Aid to answer a question on their FAFSA forms which asked whether or not they had been convicted of a drug felony. If the student answers ‘Yes’ to the question, they are denied aid. There is a current case in the U.S. Court of Appeals for the Eight District called SSDP v. Spellings which considers significant historical evidence that shows that the Aid Elimination Provision violates the Double Jeopardy Clause of the Fifth Amendment, considering that a ‘Yes’ answer may prevent a student from going to college. This is a punishment for the same offense twice, which is violation of the Fifth Amendment.
Since its inception, the War on Some Drugs and Users has been a major hindrance on civil liberties in America. Whether it be a citizen’s right to medicine, right to privacy, protection from self-incrimination, or protection from double jeopardy, the War on Drugs has tried to take these away, only to be protected eventually by the Supreme Court. In all of these cases, it takes a single person and single case to overturn the law, whether it is Dr. Linder or Dr. Leary. What can be learned from this is that it seems unfeasible to prohibit drug use by private individuals without severely harming a citizen’s civil liberties. As our Founding Fathers were private drugs users, so are tens of millions of citizens in this country. All that needs to happen from this point on is for an individual to challenge the constitutionality of the Controlled Substances Act, which, if looked in the proper light, cannot be seen as constitutional by any means.