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 --- * Origin: COBRUS - Usenet-to-Fidonet Distribution System (1:2613/335.0) - [68] TALK.POLITICS.DRUGS (1:375/48) -------------------- TALK.POLITICS.DRUGS - Msg : #3002 [205] From : Jim Rosenfield 1:2613/335 Tue 30 Aug 94 15:17 To : All Subj : Pt 2/2: Bill of Rights & WOD pt3 -------------------------------------------------------------------------------- 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 --- * Origin: COBRUS - Usenet-to-Fidonet Distribution System (1:2613/335.0)