From: [h--ge--p] at [iuvax.cs.indiana.edu] (Paul Hager)
Date: 2 Oct 91 04:45:22 GMT
Newsgroups: alt.drugs,talk.politics.drugs
Subject: ICLU talk and companion notes


		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.

-----------------------begin speech-------------------------

	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 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 thepeople."

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 --
prohibitting 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 acquistion 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 existance 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 prohibitting
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 derivitives.  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 softdrinks, 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 abrout 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 convicingly 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.
-- 
paul hager		[h--ge--p] at [iuvax.cs.indiana.edu]
_Abstainer_, n.  A weak person who yields to the temptation of denying
himself a pleasure.  A total abstainter is one who abstains from 
everything but abstention, and especially from activity in the affairs
of others.		from _The Devil's Dictionary_ by Ambrose Bierce