Part III of III
"IS THE BILL OF RIGHTS
A CASUALTY OF THE WAR ON DRUGS?"
ERIC E. STERLING
President, The Criminal Justice Policy Foundation
PeaceNet: esterling
2000 L St. N.W., Suite 702
Washington, D.C. 20036
Tel. 202-835-9075
Fax. 202-223-1288
Remarks prepared for
delivery to the
COLORADO BAR ASSOCIATION
92nd Annual Convention
Aspen, Colorado
September 14, 1990
(Revised, November 5, 1990)
Let me skip the Ninth and Tenth Amendments for a moment. The
Thirteenth Amendment prohibits slavery and involuntary servitude,
and the Fourteenth Amendment, guarantees equal protection of the
laws. Those amendments have been read to prohibit government
behavior which continues the badges of slavery -- the treatment of
African American citizens as second class citizens (See City of
Memphis v. Greene, 451 U.S. 100, 126 (1981). When the police get
the license to crack down on suspects as part of the war on drugs,
in what communities do they stop people without any cause
whatsoever? In what communities do the drag nets take place? You
know the answer. Overwhelmingly, it is in minority communities.
The Los Angeles Times ("Blacks Feel Brunt of Drug War", April 22,
1990, p.1) has shown that this is the case throughout the nation.
Consider the National High School Senior Survey of the
National Institute on Drug Abuse shows white youth use drugs at
higher rates than black youth. However, the U.S. Office of
Juvenile Justice and Delinquency Prevention reported that minority
youth detained for drug offenses increased by 71 percent between
1983 and 1985. The rate of detention of white youth was stable.
This is typical of how the burden of enforcement of the drug laws
is inflicted on Blacks, Hispanics and Native Americans. Even
though many more pregnant white women use cocaine than pregnant
Black women, 80% of all of the arrests of women for endangering
their fetus or delivering cocaine to their fetus are of Black
women.
The spirit of the 13th and 14th Amendments is violated
everyday because the police are carrying out the war on drugs much
more heavy handedly in communities of color. Equal protection of
the law is being denied.
Returning to the Bill of Rights.
The Ninth Amendment provides that "The enumeration in the
Constitution of certain rights shall not be construed to deny or
disparage others retained by the people." What are those other
rights? Those are every other right.
Now, when we think about rights, let's ask, "where do rights
come from?" Do our rights come from Constitutional amendments?
Are those our only rights? Or does the existence of our rights
precede the First Amendment? Wasn't it the Declaration of
Independence said that "we hold these truths to be self evident"
-- that we are "endowed by our Creator with certain unalienable
rights?"
Those rights don't flow from Congress. Uncle Sam doesn't give
us our rights. We had our rights before the government was
created.
Consider the right to vote. The Fifteenth and Nineteenth
Amendments to the Constitution say that the right to vote shall
not be abridged on account of race or on account of sex. Did those
rights come into existence because white males suddenly thought it
would be a neat idea to give those rights to the rest of us? Did
those rights come into existence because Congress finally decided
to vote for them? No. Those rights always existed. They were not
recognized by the society. But those rights were always there.
Was it Black Americans or women that changed in 1870 or 1920? No,
society changed -- it recognized that a right which existed, the
exercise of which was being denied, must now be guaranteed.
Society's recognition of our rights is slow, it evolves.
I argue that there is a right to use drugs. Last night a few
of you drank alcohol -- a drug. Today, a few of you have used
nicotine, a drug. We don't urine test people to prevent them from
using nicotine. We don't lock up the nicotine dealers. Most of
us have had caffeine today, a very powerful central nervous system
stimulant. We drink it in very carefully measured dosages, usually
in common six ounce ceramic cups or ubiquitous styrofoam cups.
Coffee cups are drug paraphernalia. A wine glass, a beer bottle,
they are drug paraphernalia. An ashtray is drug paraphernalia.
We use drugs in our society legally and illegally to an
enormous degree.
Why are the drug laws violated by tens of millions of our
fellow citizens? Because they intuitively know that they have a
right to engage in conduct that gives them pleasurable sensations
even though it is prohibited -- that those laws are unjust.
Many of us in this audience, probably a majority, recognize
a woman's right to control her reproductive freedom, to control
her reproductive tissues, to control her womb. How is the right
of all us to control our brains any less? Don't we have a right
to control our cerebral tissue?
To say that exercise of personal control over something so
intrinsically personal as one's brain and central nervous system
is not a right reserved under the Ninth Amendment means that the
Ninth Amendment is almost meaningless.
The Tenth Amendment says 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."
The powers not delegated to the United States by the
Constitution are reserved to the people. Where is the power in
Article I, Section 8 of the Constitution that allows Congress to
say, "We declare that your brain is off limits to you. You cannot
use those cells in your brain that opium can affect, or that
marijuana stimulates. Your brain is not really yours to control.
The space between your ears -- that's not really yours to control.
We're the Congress. That's our space. You are prohibited from
using your brain in unapproved ways." Is this a power that the
Congress has? If so, where did it get it and when?
Let's think about the First amendment broadly for a moment,
and think about the policy that underlies the First Amendment.
Ultimately, the First amendment is designed to guarantee our right
to make up our minds. ("Those who won our independence believed
that the final end of the State was to make men free to develop
their faculties . . . . They valued liberty both as an end and as
a means. They believed liberty to be the secret of happiness and
courage to be the secret of liberty. . . ." Whitney v. California,
274 U.S. 357 (1927) (concurring opinion of Justice Brandeis, joined
by Justice Holmes, 274 U.S. at 375). Brandeis defended the
"freedom to think as you will and to speak as you think" as
"indispensable to the discovery and spread of political truth. .
.." (274 U.S. at 375).)
How do our minds work? As you hear me speaking or if you read
this, there are biochemical changes taking place in your brain.
That's what's happening. Your brain is changing chemically. If
you remember what I say or wrote, your brain has been permanently
changed.
In fact, what I'm saying is more dangerous than any drug you
can take -- much more dangerous. You might get angry at your
members of Congress for deliberately or carelessly embracing a
policy that systematically degrades your hard won freedoms and
liberties. You might protest or take action and challenge the
government. Even though what I'm saying is very dangerous because
it's affecting your brain, and affects your ability to make up your
mind about drug laws, what I'm saying is protected by the First
Amendment.
Do you have a right to listen or a right to read? Even though
the First Amendment doesn't explicitly say "the freedom to listen
shall not be abridged", isn't it obvious that you have a right to
listen. If so, in material terms you have a right to chose to have
your brain changed by what you want to listen to or what you read.
Two centuries ago the King of England did not try to prevent
Americans from directly using their brains. He did what he could
do, which was to punish seditious speech and treasonous writings
-- things which profoundly influenced the minds of revolutionaries
through the chemical changes they caused in their brains.
Today, we know how the brain functions as a biological
processor of chemicals. But since Congress has by law acted to
intervene in your choice of brain-effecting chemicals, forbidding
you from choosing certain drugs that millions of Americans desire,
we must ask, "What is Congress' constitutional power for doing
this?"
Congress' legislative powers are set forth in Article I,
Section 8 of the Constitution. The authority to ban drugs is no
longer based on the power to tax, as it was from 1914 until 1970.
Congress now asserts its power to forbid the use of drugs in the
Controlled Substances Act (21 U.S.C 801; titles II and III of the
Comprehensive Drug Abuse Prevention and Control Act of 1970, Public
Law 91-513.) is based on it's power to regulate interstate and
foreign commerce. (United States v. Scales, 464 F.2d 371,373 (6th
Cir. 1972); United States v. Montes-Zarate, 552 F.2d 1330, 1331
(9th Cir. 1977), cert. denied, 435 U.S. 947 (1978).) Now what,
pray tell, does that have to do with your brain?
Congress recognized that if you grew marijuana in your
backyard for your own use, there would be a very strong claim that
such activities did not affect interstate or foreign commerce.
Therefore Congress asserted that "local distribution, and
possession, nonetheless have a substantial and direct effect upon
interstate commerce" and declared that it could not "feasibly
differentiate" or "distinguish" purely intrastate activity with
respect to drugs from the interstate or foreign commerce in drugs.
Therefore, it claimed jurisdiction over drugs grown in your
backyard, or always possessed by you in local, intrastate commerce.
(21 U.S.C. 801(3),(4),(5),(6)).
Now, is your brain interstate commerce? Is your bedroom
interstate commerce?
Consider the implications of this expansion of the
Congressional power to regulate interstate commerce. Beginning in
1933, Congress at the urging of President Franklin Delano Roosevelt
asserted an enormously expanded role in regulating interstate
commerce. Conservatives considered it an almost revolutionary
expansion. Only after a number of deaths and resignations, and the
electoral sweep of 1936 was this enormously expanded claim of
Federal power under the interstate commerce clause upheld by the
Supreme Court (NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
(1937)).
We therefore accepted the expansion of the power of Congress
to regulate interstate commerce to the maximum. Even if an
individual's act is trivial, that is irrelevant if it is a type of
act, when cumulated with other similar acts, might reasonably be
deemed by the Congress to have substantial national consequences.
(See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942); Katzenbach v.
McClung, 379 U.S. 294 (1964); Perez v. United States, 402 U.S. 146
(1971)).
There was also created the theory that Congress could enact
prohibitions to "protect" interstate commerce. The Fair Labor
Standards Act of 1938 excluded from interstate commerce goods made
in plants with did not meet Federal standards for wages and hours
of employees. (This was upheld in United States v. Darby, 312 U.S.
100 (1941): "Congress, following its own conception of public
policy concerning the restrictions which may appropriately be
imposed on interstate commerce, is free to exclude from [such]
commerce articles whose use in the states for which they are
destined it may conceive to be injurious to the public health,
morals, or welfare..." (312 U.S. at 114).) In the 1960's Congress
used the interstate commerce power to guarantee civil rights in
interstate travel and accommodations. (e.g. Heart of Atlanta
Motel, Inc, v. United States, 379 U.S. 241 (1964)).
It is time to consider, where does interstate commerce end?
I'm standing here in this conference center, a facility of
interstate commerce. I'm carrying an airplane ticket to
Washington. My pocket is full of credit cards, tools of interstate
commerce. However, I spent the night here, I've had a beautiful
hike, I've had a couple of meals here. Am I actually here in
Colorado, or am I still in the limbo of interstate commerce? If
I am still in interstate commerce now, when do I leave interstate
commerce? Can I ever leave interstate commerce? (Notably, Justice
Rehnquist suggested that "it would be a mistake to conclude that
Congress' power to regulate pursuant to the Commerce Clause is
unlimited. Some activities may be so private or local in nature
that they simply may not be in commerce. Nor is it sufficient that
the person or activity reached have some nexus with interstate
commerce." Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 452 U.S. 264 (1981) (concurring opinion at 310). Departing
from the post New Deal line of cases he concluded, the commerce
power "does not reach activity which merely 'affects' interstate
commerce. There must be a showing that a regulated activity has
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From : Jim Rosenfield 1:2613/335 Tue 30 Aug 94 15:17
To : All
Subj : Pt 2/2: Bill of Rights & WOD pt3
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a substantial effect on that commerce." 452 U.S. at 312. (Bold in
the original, underlining added.) So far, no other justices have
joined this argument.)
But if I am in interstate commerce, what about those of you
who have not left your home state to come to this conference. Are
you in interstate commerce?
If interstate commerce can constitutionally be claimed to be
the basis for anything that Congress wants to regulate, what part
of our lives is not regulatable by Congress? If Congress can use
this power this broadly in the regulation of our brains, then the
Federal government is omnipotent and the notion of constitutional
checks and balances is non-existent.
If our brain is regulatable as interstate commerce, then
certainly our wombs and genitals are too, aren't they, and our
blood, our heart, our lips, our fingers, our eyes, and our ears?
Is there any part of us that is not in interstate commerce?
I believe that at some point the tissues inside our skin must
be totally outside interstate commerce, or else Congress has
unlimited power to tell us to do whatever it wants us to do.
It is this, it seems to me, that is the most dangerous heart
of the war on drugs and which strips the Ninth and Tenth Amendments
of their meaning. Essentially the legal basis for the war on drugs
depends upon the assumption of total power by the Congress and the
Federal Government to regulate the most intimate aspects of our
lives, the very dreams that we have. And the propaganda arm of the
war on drugs has been successful persuading us to unwittingly
surrender this vital power over ourselves to the Federal
government. Indeed the propaganda of the urgency of the war on
drugs has been so successful, many of our fellow citizens
consciously believe we must surrender ourselves for the good of the
state.
Seen in this light, the war on drugs is the corner stone of
an as yet unbuilt edifice of totalitarianism.
Challenging the war on drugs is the most important issue
facing civil liberties and the preservation of the Bill of Rights.
You are lawyers. You know that aside from the questions of
due process and constitutionally required criminal procedure, the
criminal justice system is going down the tubes. The American Bar
Association issued a special report, Criminal Justice in Crisis,
which found the criminal justice system is being overwhelmed with
drug cases. (CRIMINAL JUSTICE IN CRISIS, American Bar Association,
Section on Criminal Justice, Special Committee on Criminal Justice
in a Free Society, 1988, p.6.) It functions as an assembly line.
No longer does individualized justice takes place. The attorneys -
- prosecutors, defense counsel, and judges -- are mere mechanics
that keep the machine of arrest and imprisonment functioning.
I won't discuss today the many serious costs our society is
suffering from undertaking the prohibition approach to the problem
of drugs -- the increased crime, the spread of disease, the
economic price of enriching organized crime by $100 billion per
year. I won't analyze our national drug control strategy to
explain how it cannot succeed in stopping the cultivation and
shipment of drugs into the United States. Someone who might be
indifferent to the hits taken by the Bill of Rights, should be
alarmed by the problems caused our nation by drug prohibition
because they effect everyone -- in their pocketbook, in their
personal safety, in the availability of quality health care.
The organized bar, such as the Colorado Bar Association, is
one of the institutions in the society that is sensitive to the
Bill of Rights implications of the war on drugs. Next year will
be the bicentennial of the ratification of the Bill of Rights.
Many bar associations are planning programs to commemorate the Bill
of Rights. Now is the time for bar associations to begin to
educate the public about the jeopardy our heritage of liberty faces
from the war on drugs. If the bar fails to do this, who will do
it? If no one does it, then surely the celebration of the
bicentennial of the Bill of Rights on December 15, 1991 will be a
hollow exercise.
It should be obvious that all of these comments do not deny
that drug abuse is not a terribly tragic situation. As is
alcoholism. As are 300,000 annual deaths from tobacco and
cigarette addiction. Those are terrible things too. But we are
not going to solve any of these problems by allowing the war on
drugs to make our Bill of Rights into a shattered remnant of the
vital shield it once was.
End Part III of III
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