America’s War on Drugs

Recently, I was asked to defend my position on the effectiveness of the War on Drugs and whether this should continue as part of America’s domestic policy given the high cost and low (apparently) success of the policy. The writer correctly stated that the monetary cost to maintain this effort was staggering and the potential for abuse of personal liberties seemed to make a mockery of our Constitutional protections. He is right on both counts. Further, he pointed out that the 18th amendment was a blight on the constitutional landscape and that it was also ineffective as a behavior- altering mechanism. On this point, he is only partly right, as I explain below. For the benefit of my regular readers, I offer for your reflection and comment, the response that was incited by his query.

Dear *****

You make three points that are really worth pondering and that every American should think through carefully. First, and most important, is the legitimate role of the state in exercising its police power. Most people agree that the civil authorities DO have a legitimate police power which extends to the personal conduct of the citizens. Where it begins and ends is the matter for debate.

Second, the constitution of the United States is an articulation of the FORM of our Government, and NOT a legal code. The Declaration of Independence states the PRINCIPLES of civil government and functions as the CHARTER of our corporate government. The Constitution functions as the BY-LAWS of the corporation and provides the administrative framework within which the corporate state is free to exercise its legitimate authority. You are absolutely correct that the 18th amendment is a blight on our constitutional history, although NOT because it is a bad idea. It is a blemish because it acts as a code of law and not a principle of administration. The abuses of alcohol in the late 18th and early 19th century were so widespread that every level of society was adversely affected by violence, absenteeism, poverty, spousal abuse, and public drunkenness. The prohibition acts were a good example of a grassroots effort at various local levels which succeeded in shutting down taverns and passing "blue laws" prohibiting or limiting alcohol consumption. The movement spread and its influence reached to the highest levels of the political realm with many influential lawmakers being convinced that the federal government "must do something" . Lacking authority to regulate the states directly, the "solution" was seen in the form of an amendment to the U.S. Constitution. The problems that history reports are typical of what we might expect when the Constitution is treated as a legal code and the Federal Government is empowered to "help us" police ourselves.

The 21st amendment was needed to restore the constitution but these two amendments remain as a testimony of failed public policy brought about by attempting an arguably "good" outcome but using the wrong instrument to accomplish the end. (Side note: As a result of the temperance movement and the intense debate and public awareness generated over the alcohol problem, drinking was reduced nationally by about 35% and has remained more or less constant since that time [based upon gallons consumed on a per capita basis and comparing known data from the early 1900’s to 1990.] So, there is at least some empirical support in favor of the prohibition. But the reduction in consumption was likely brought about by the PROCESS, not the amendment itself!)

Regardless of the issue: whether, drug or alcohol abuse, homosexuality, abortion, or education, these are social problems that are, at their very roots, spiritual in nature and quite beyond the purview of national law to enforce. State legislators, properly influenced by the dictates of their constituency, and those dictates duly subject to the principles of the State Constitution, may properly sanction a wide variety of conduct which is quite beyond the legitimate reach of the federal authority.

Third, the cost of engaging in a "drug war" is, in dollars and cents, a tremendous economic burden and, as a tool of public policy, of doubtful effect. That does not mean that because a government effort directed at solving a social evil is both costly and of little effect that it should be abandoned, but it does (or should) force us to conduct a very critical cost-benefit analysis as part of our decision-making process.

Ultimately, all of these points are component parts of the national public policy. The legitimate police power of the state, if you are a traditional, Blackstonian, common-law theorist, is that the civil government may not declare evil that which is good nor declare good that which is evil. Good and evil are determined by the revealed Word of God in the Holy Bible and Christianity is the expression of that revelation. While the government may not compel Christian worship or even Christian belief, it can (and should) enforce conduct that comports with Christian principles. Whether our society believes and accepts that today is not my focus here, but that that belief was the cornerstone of American doctrine in the 1700’s a matter of historical truth validated by volumes of scholarship.

The founders, though not all Christians, all professed a conviction of the rock-solid principles of Christianity as the theological and philosophical basis of our system of government. (see the recommended reading list on my web page for a partial list of some good books on the subject.) It is from these principles that the founders saw the need to limit all government and, specifically, federal government in its exercise of authority over the citizens from whom its power was derived. It was deemed critical to the survival of the corporate state that its leaders manifest the Christian character outwardly, if not inwardly, which is why an oath of office is administered to every public official. Specific doctrinal issues are not to be used to select leaders because of the fear that one sect or denomination might predominate and then try to compel all others to conform to that particular belief system. That is why the U.S. Constitution is not contradictory when it requires an oath of office that solemnly invokes the judgment of God, but, at the same time, prohibits any "religious test" for public office. Virtually everyone agreed that Godly men were the ideal candidates for political leadership. The balancing test was to keep Godly men in political leadership while, at the same time, keeping the government out of the business of the church.

At the same time, it was universally agreed that man’s sinful nature predisposed him to excesses and that a system of control must be built into the political process. Our system of checks and balances (formed from patterns of Hebrew Polity in the Old Testament) was devised as the best model of self-government. Bold, and excitingly innovative, the expectation of endurance of such a system was predicated on the notion that the internal influence of Christianity would allow for the least possible external control of the police power of the state.

You will hear frequently that "You can’t legislate morality!" Horsefeathers! If "morality" is being defined in terms of conduct (behavior) then that is exactly what the force of law IS intended to enforce. Of course, if "morality" is understood to contemplate what one believes in one’s own heart, then the law certainly does NOT legislate morality. Our jurisprudential history has consistently distinguished between "criminal thoughts" (mens rea, or "guilty mind") and "criminal acts" (actus reas). This is the crux of the current debate on "Hate Crime" legislation. To suggest that the law may not proscribe (or prohibit) certain conduct (which is motivated or induced by one’s beliefs) is ludicrous. It is PRECISELY the legitimate function of civil authority (whose proper authority is derived from the consent of the governed) to regulate such conduct. The real question becomes one of when, or how much government may control, NOT whether it has the power to do so.

There may be many public policy reasons why people may choose to restrict or expand the police power of the state. Two important considerations are that the authority is always delegated to the government BY THE PEOPLE, and then, always consistent with the limitations of the Constitution. Economic considerations are valid, but not exclusively the determining factor. The will of the people is also important, but even the people must agree to be bound by the Constitution. (NOTE: There is, and will continue to be, debate on whether the Constitution should be a "living" document which conforms to the changes in society; or, as I maintain, the fixed standard of law by which the behaviors of society must conform.) If some special interest group maintains a position so adverse to the current state of the law that they must resort to a constitutional amendment, there should be grave concern and considerable trepidation over the weight of the issues at stake. Tradition should not be tossed into the trash heap as one might an old shoe. As Jefferson wrote in the Declaration, "Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." (Slavery was an issue which struggled against the corporate state for a hundred years and racial discrimination continued for another sixty before the machinery of state finally enforced what the Declaration of Independence proclaimed. This exception serves only to prove the rule. But the moral justification against slavery has it firm foundation in the principles of Christianity, which the claims of the homosexuals, abortionists, and legal- drug advocates, do not!)

These public policy issues are not the type to be addressed by pure economic analysis or through advocacy of federal "protection". To argue solely on the basis of the former is to deny the moral component its due consideration and to argue based upon the latter is to put us on the same road as did the 18th amendment. More government is NOT the solution and many of the same people who argue that the 18th amendment was a farce, will argue that a new amendment is needed to guarantee (for example) "gay rights" or "freedom to smoke pot". This is logically inconsistent and intellectually dishonest. Such convolutions of logic are of the same genre as those for which the Liar-in-Chief is currently being mocked.

Respond to:
John A. Sterling
jsterling@acninc.net