The War on Rights

Well, I’m sure you noticed that this place you’ve arrived at is known as “Fresno Criminal Defense.”  So I’m also sure you’re not expecting me to write about the War in Iraq, or Afghanistan, nor will I — as I did yesterday — have anything to say about the Mexican-American War, although actually all those countries have some kind of tie-in with the War about which I will write: a War we are losing in every possible way.

A War, in fact, which we cannot win.  Because to win, you see, we’d have to be something other than what we are…

…humans.

The Fresno Bee, publishing an Associated Press story, began my day with this:

After 40 years, the United States’ war on drugs has cost $1 trillion and hundreds of thousands of lives, and for what?  Drug use is rampant and violence even more brutal and widespread.  (Martha Mendoza, “A Failed Plan? Fight against drugs costs more than ever with no end in sight” (March 18, 2010) B1, col. 2.)

I guess it’s been long enough since Prohibition that everyone forgot we lost that War, too.  Call it “Drug War I.”  We’ve been stuck for quite some time in “Drug War II.”

Like the World Wars after which I modeled those names, the United States, while a key player, is just one piece in the war.  Unlike those Wars, there are no heroes: we’re not riding to anyone’s rescue.  (The War does let us occasionally do something, though, that the United States has been good at since before it was born: there’s been a lot of “collateral damage” to indigenous peoples.)  Like its older siblings, the World Wars, this one has seen our troops distributed around the globe.

Not everyone agrees that this War has been as much a waste of resources and has brought on as much human misery as the original Prohibition.

“To say that all the things that have been done in the war on drugs haven’t made any difference is ridiculous,” [former U.S. drug czar] Walters said.  “It destroys everything we’ve done.  It’s saying all the people involved in law enforcement, treatment and prevention have been wasting their time.  It’s saying all these people’s work is misguided.”  (Mendoza, supra.)

In other words, as with the original Prohibition, that would require us to admit a colossal mistake.

If only we could destroy everything they’ve done!  But, alas, the legacy of this failed War will likely outlast the United States.  It has already outlasted the Constitution.

In fact, a fairly strong argument can be made that Drug War II necessitated — and thus it is no surprise that it brought about — the death of that Constitution.

First, it necessitated the death because, as the previously-linked page delineates, the War on Drugs is almost certainly unconstitutional.  In earlier times, virtually all Americans would have recognized this.  That’s why our original Prohibition required a constitutional amendment.  So far as I know, that amendment is the first-ever constitutional stripping away of rights.  Finally realizing the stupidity of that act, the 21st amendment repealed the 18th — repealed Prohibition — and restored the rights which had been stripped away by that one-of-a-kind amendment.

That, to my knowledge, is the only time rights have been constitutionally stripped away from us.  It would not, however, be the last time we were stripped of our rights.  After the gyrations the government had to go through first to implement Prohibition and then to repeal it — as any supporter of the Equal Rights Amendment can tell you, getting constitutional amendments passed is hell! — they just decided it would be easier to ignore the Constitution whenever it got in the way, rather than to amend it.  A primary argument of this post is that the War on Drugs has actually been a War on Rights, stripping away nearly everything, as the United States Constitution has been quite literally flipped on its head.  It’s as if the Constitution, invented long before photography, were a negative.

Oh, crap.  I forget that most of my readers probably grew up with digital cameras.

Short aside: In the old days, a “negative” was a piece of glass, or (in more recent times) a piece of chemical-coated plastic.  We called the plastic versions, at least, “film.”  You’ve heard the term.  You probably just didn’t know what it meant.  Anyway, when the shutter opened on a camera, it exposed the “film” to light.  The bright parts of the original subject — the thing you were taking a picture of — became represented on a negative as dark parts; the dark parts ended up on the negative as light parts.  It was the exact opposite of the scene you were photographing.

Like our Constitution.  And your rights.  And the power of the government.

The Constitution was meant to place limitations on what governments could do.  The rights — actually we called them “powers” — of government were limited.  The rights — we actually called them rights! — of human beings were not.  Except to the extent that it was necessary to give some up in order to give those rights — now called “powers” — to government.

The idea was to give up just enough of our rights to allow a government to do the most basic of tasks: keep us safe from people — like Kings, or maybe dictators, foreign countries, or maybe despots within our own country — who would try to reduce the rest of our rights.  The ones we kept.

Well, around about the time we started to develop glass plates — those were the predecessors to film, but I didn’t want to really do a full-on photography history lesson here — government, primarily driven by then-President Abraham Lincoln, got the idea that the Constitution, paper though it was, was a kind of negative as well.  Where we previously thought the Constitution limited the rights (remember, we called them “powers”) of the government, our government began to promulgate the theory that the limitation was actually on our rights (remember, we called them “rights”; actually, sometimes we referred to them as “freedoms”).

So it came to be that today people mistakenly believe that the Constitution limits the rights of individuals.  And if a right claimed by a person is not “in the Constitution,” then it doesn’t exist.

Oh how I wish someone would have told Hamilton “show me where the Constitution grants people a right to privacy!”

This confusion about what the Constitution does and does not do happened for two reasons.

The first is that people don’t read anymore.  After all, you can’t actually read the Constitution — in English, Spanish, or even Swahili (I don’t know if it’s actually printed in Swahili) — and not realize that it is the government which is being limited.  You can’t read the Constitution and actually not see that there is a Ninth and a Tenth Amendment in The First Ten Amendments, a.k.a., the Bill of Rights.  (Hamilton was 100% spot-on about the dangers of that damn thing.)

The second reason is that over the years since America’s first dictator — Abraham Lincoln — saved us from ourselves, our government has increasingly desensitized us to the idea that it was, in fact, limited; that we were, in fact, not intended to be, except to the smallest extent necessary, as mentioned above.

Besides, most of the other nations left us alone after the first few decades following the Revolution.  With no one else to fight, we’ve had to start or invent various wars — the Mexican-American War (oh, darn, I wasn’t going to mention that after yesterday’s debacle), Civil War, Drug War I (Prohibition) and, most recently, Drug War II — just so our government would have something to do.

Besides, our leaders can’t survive without war.  Or, at least, they can’t survive in the style to which they’ve become accustomed.

But the fact of the matter is that, for the rest of us, for the average American, the War on Drugs has been an abject failure.

[President] Nixon’s first drug-fighting budget was $100 million.  It’s now risen to $15.1 billion, 31 times Nixon’s amount even when adjusted for inflation.

Regardless of the additional funds, high school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have “risen steadily” since the early 1970s to more than 20,000 last year.  (Mendoza, supra.)

Nixon, by the way, started Drug War II after being forced to end the Vietnam War.  As I said, our leaders need wars.

The Justice Department estimates the consequences of drug abuse — “an overburdened justice system, a strained health-care system, lost productivity and environmental destruction” — cost the United States $215 billion a year.

Harvard University economist Jeffrey Miron says the only sure thing taxpayers get for more spending on police and soldiers is more homicides.  (Mendoza, supra, emphasis added.)

Now we know how this happens.

Much of the meaninglessness of the Fourth Amendment to the Constitution — that which controls searches and seizures by the government — can be directly traced to Drug War I and Drug War II.  During Prohibition, the case law allowing searches of automobiles developed to combat bootleggers. Likewise, the initial development of case law regarding wiretaps grew out of the Prohibition. In a very real sense, then, the Wars on Drugs — what I’ve called Drug War I and Drug War II — brought an end to the Lochner Era, and to the United States Supreme Court’s interpretation of the Constitution as somehow limiting the government.

In spite of this, we have gained little.  Never did Benjamin Franklin’s words ring truer; we have given up nearly all our liberty, for less safety.

From the beginning, lawmakers debated fiercely whether law enforcement — no matter how well funded and well trained — could ever defeat the drug problem.  (Mendoza, supra.)

It can’t.  What it has done, however, is to bring our once-great nation to its knees. As former Alaska Senator Mike Gravel put it:

Look what happened.  It’s an ongoing tragedy that has cost us a trillion dollars.  It has loaded our jails and it has destabilized countries like Mexico and Columbia.  (Mendoza, supra.)

First, the Drug Wars broke our Constitution.  Then Drug War II broke the backs of our weaker southern neighbors.  Now the War on Drugs stands to break all our budgets.  Our governments can no longer support our anti-drug habit.

The problem with War, though, is that — at least for human beings — it’s the strongest of addictions.