In my research about law enforcement and their place in a Constitutional society, I realized that I can’t discuss law enforcement without also discussing drug policy, specifically, federal drug policy since the majority of federal incarcerations in the country are for violating federal drug laws.
Plus, haven’t you heard the common trope, “War on Drugs” that so many federal politicians use when running for office? It’s not a secret that the federal government’s “police force” is increasingly and incredibly fortified by the drug laws they have tasked themselves with enforcing. According to prisonpolicy.org, as of 2020, 78,000 of the 166,000 convicted felons in federal prisons are incarcerated because of a violation of drug policy. For some perspective, only 3,000 of the 166,000 are in federal prison because of homicide, 6,000 for robbery, 4,000 for some other violent crime, and 400 for burglary.
Again, the crimes committed must have some relation to the federal government for those in prison to have been tried and convicted in federal court (please take a look again at Article 1, Section 8 of the Constitution to refresh your memory regarding the types of laws Congress can write–hence the types of federal laws citizens can break and be punished for). Don’t forget the foundations that I’ve build prior to this article. We want to avoid arbitrary power at all costs. Arbitrary governments are unconfined and can do whatever they deem “necessary”; which, can be anything. Our government is not an arbitrary government, it’s a limited one, with enumerated powers and anything beyond those powers is arbitrary… no matter how good the idea.
Therefore, understand that when I write, my personal convictions about issues (abortion, drugs, healthcare, welfare, climate change) have nothing do with what the Constitution says and therefore nothing to do with how I educated you about the Constitution. I have personal convictions about every political issue, but those convictions don’t matter in the light of the Constitution and confining arbitrary power. This perspective is one I’m hoping catches on for more Americans so that we can all look at issues with a clear head rather than with a head muddled by emotions. So, I implore every reader to approach this rather controversial subject of drug policy with an open mind, and from the perspective of the Constitution and confining government power.
I started this article with every intention of giving you three subheadings: the one below, How Is Drug Policy Constitutionally Justified or Is It?, and How Does Drug Policy Impact the Federalization of the Police?. However, as subheading number one’s answer kept going and going, I realized that I can’t adequately give you all the information necessary to answer these three questions in one article. So, your next two articles will answer these aforementioned subheading questions.
For today, we’ll focus on the question below.
Where Does Drug Policy Come From?
So, let’s start with perhaps the most basic question. What are the origins of this mindset of making drugs “illegal”? First, in order to ask government to write laws limiting, regulating and criminalizing any product, but especially narcotics, means that one must first believe that it’s in some small way government’s job to regulate one’s personal morality (i.g. drugs, drinking, smoking as opposed to theft, murder–ALL issues left to the state anyway) and personal heath decisions is a rather dramatic shift in American expectations of government, especially the federal government. It presupposes that government is out for one’s best interest and is better equipped to inspire and protect the citizens’ best interest in this realm than the individual.
So, let’s take a look at history. Where did this mindset come from? The first time the criminalization of drugs really came to the policy forefront was during the Prohibition Era. There was a moral fever sweeping the nation, with women at the helm, because alcoholism and drinking was wreaking havoc on families and “destroying the moral fiber” of society. The nation (Congress and the states), in the height of its moral zeitgeist, passed an amendment that criminalized all forms of “intoxicating liquors”. In doing so, the zeitgeist also turned against drugs, marijuana in particular.
This criminalization of “drinking” triggered the use of federal enforcement armies to raid and force compliance to this new “federal” requirement (The 18th Amendment is incredibly unique in Constitutional history because it was a part of the Constitution that did not apply to government… but rather to the citizenry. Remember, the Constitution confines government while laws confine the citizenry. This is one of the first and only applications of the Constitution that I can find that applies exclusively to the citizenry and NOT government. In other words, the Constitution confined the citizenry, not government via the 18th Amendment. In fact, it gave government immense power to enforce, not a law, but a Constitutional mandate on the citizenry, regulating their moral behavior in this realm.) Now, the intentions to the amendment were, in some cases, commendable and pure, but the rationality and understanding of government’s job was incredibly flawed and dangerous to liberty–as history confirms.
So, this federal army regulating illegal alcohol consumption began to comb the country and force compliance. The problem was, the more that the government tightened their grip around the citizenry, the more the citizenry squirmed, fought back and found ways around the Constitutional mandate. Speakeasys (bootleg alcohol and underground bars) became rampant as did the mafia and related crime syndicates, bristling against the suffocating force of the federal government. Crime, suicides and homicides increased dramatically during this era of American history, with some considering it one of the greatest failures in American history. Naturally, this caused a spike in prison growth at the state and federal level and the introduction of a much more militarized police force. This era, which lasted from 1920-1933 at the amendments’s repeal, took an immense toll on poor or marginalized communities and left the country reeling, with an empowered federal police force and rampant mafia and crime syndicates.
It was during this era that the criminalization of drugs was first introduced in the United States. The first federal law criminalizing the private use of narcotics was The Harrison Narcotic Act of 1914. The act was”“an act to provide for the registration of, with collectors of internal revenue, and to impose a special tax upon all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes.”
One critique of this law says, “Almost immediately, damaging effects were felt from the bill’s passing. A vaguely worded clause in the bill declared that doctors could no longer prescribe opiate-based drugs, since ‘addiction was not a disease.’ This led to numerous doctors being targeted by police and eventually imprisoned. In turn, the cloudiness of wording led to underground market formation, resulting in criminal involvement by both users and producers of opiates and cocaine. Police enforcement began to go up, and quality of life for those using opiates and cocaine began to plummet.”
The most powerful drug laws that we see being enforced today really started to take hold in the 1970s. One of the first was the Comprehensive Drug Abuse Prevention and Control Act in 1970. The Controlled Substances Act (CSA), a part of this broader legislation, allowed for federal jurisdiction over specific plants, drugs and chemical substances. Then, in 1986 and 1988 Congress passed the Anti-Drug Abuse Act which set the sentencing for federal drug trafficking and attempted to reduce the accessibility of drugs by creating an Office of National Drug Control Policy (ONDCP) and a drug czar to head up the agency. For more on this, check out this pdf detailing federal and state drug policy.
While there were some federal “agencies” in the early 1900s (i.e. The Bureau of Drug Abuse Control or BDAC and the Federal Bureau of Narcotics or FBN), it wasn’t until 1973 that the Drug Enforcement Administration or DEA was created via executive order. Constitutionally, no executive agency can ever be created by the executive branch because the executive branch can only execute laws written by Congress, so creating an agency to execute “law” without a Congressional law to justify such a creation is rather absurd. But, this is how the DEA (and a select few other agencies) have come to be. The agency precedes the law and Congress retroactively chooses to support the agency by writing a subsequent law or funding the agency, thereby legitimizing it (there are a few instances where Congress refused to legitimize an agency created via executive order and the agency fizzled away), or in Nixon’s case, Congress approved the merger of agencies to create the DEA. In other words, Congress approved the executive creation but did not create the agency.
The amount of federal funds, agencies, law enforcement divisions, task forces, and training the creation of the DEA and drug policy has generated is immense. Just read this article about the DEA written by the DEA if you want a greater understanding. I’ll unpack this more in my next two articles.
The fascinating thing about federal drug policy is that there’s not actually that much “policy”… in other words, the big broad laws written by Congress are rather vague. Most of the power and minutia is dealt with by federal agencies made up of unelected bureaucratic officials, and federal law enforcement.
Fundamentally, the most important question to be asked is this: what is government’s job, according to our Constitution? Is it a state job to deal with drug policy or should it reside in federal hands? The Constitution is rather clear on this, but I’ll unpack the Constitution’s perspective in greater detail in my next article.
What we should tackle here is from where the mindset of federally criminalized narcotics comes. Do we look to the federal government to have our best interest in mind for anything, especially something like drug control? Or do we assume that government simply appreciates the power they possess over the citizenry because of drug control policies?
The government always wants to candy coat their lust for power by telling citizens they’re trying to “save” them or “help” them make their lives better–when history tells us that no government (made of humans) has ever only possessed pure motivations. This is why our founders created a limited federal government, one with no policing power.
It’s time we stop being allured and conned by government’s candy coating. We need to step back long enough to honestly and Constitutionally assess the powers our government has in this realm of drug policy, and how it has affected our police and our liberty. Because, friends, it doesn’t matter what anyone’s political preferences, ideological convictions, or personal beliefs are, if government can act arbitrarily in one area of law, it can do so in all areas of law.
The Liberty Belle