Backwoods Home Magazine

California conservatives missed a chance to speak up for “all” constitutional rights

California conservatives missed a chance to speak up for “all” constitutional rights

By Dave Duffy

Issue #127 • January/February, 2011

As much as the results of the November elections gave me some hope for the future, the most important voter initiative, California’s Proposition 19 which would have legalized marijuana in that state, went down to defeat. It was a missed opportunity for conservatives to join with liberals, independents, and Tea Party activists to pass a measure that could have had a major impact on rolling back federal government power, especially its power to assert its will over states and individual constitutional rights.

Passage of Proposition 19 would have forced a legal showdown between the nation’s most populous state and the feds, since President Obama’s attorney general, Eric Holder, had vowed to enforce federal drug laws even if the measure passed. But conservatives were scared off by unfounded and exaggerated fears about the evils of marijuana, proving once again that conservatives are no better than liberals when it comes to protecting “all” constitutional rights, but prefer instead to protect only the ones they cherish.

Marijuana legalization, even legalization of all drugs, is no longer just a liberal cause to make it legal to get high. If you’re going to be for the U.S. Constitution, you have to be for all the rights it contains, and that includes the right to do with your body as you want. There is no prohibition in the Constitution about drugs and there is no power in it that grants the government the power to ban anything, whether it be guns or drugs. You may feel drugs are the worst evil, but that’s how some liberals feel about guns. It makes no sense to make a “constitutional exception” for either.

This issue is bound to come up again, and soon, because the tide in the country is clearly in favor of legalizing marijuana, and maybe even some other drugs made illegal by the government’s War on Drugs, if only to eliminate the violence and taxpayer expense that attend the drug war. It’s a cause that conservatives need to embrace. And it’s a cause, I think, that has the power to bring an out-of-control federal government to its knees.

Let’s take a look at what marijuana illegalization, and the rest of the War on Drugs, has cost us.

It is because of the police and court excesses allowed under the federal government’s War on Drugs that the police can now stop us on the street or in our vehicle without probable cause, seize our property without ever charging us with a crime, and imprison our children if they dare do what youths in every age have done, namely, experiment with mind-altering substances such as drinking a beer or smoking a joint. It is a rite of passage that has been taking place for thousands of years, and no law will change this aspect of human nature.

If you are against drugs, that’s fine. I am too! After experimenting with marijuana in my youth, I realized that drugs are by and large a handicap that destroys people’s lives when overused, just like alcohol is. But the War on Drugs, just like alcohol Prohibition of the 1920s and 30s, has undermined our individual freedoms to a level that borders on the destruction of the U.S. Constitution. It’s time to do with drugs what we wisely did in 1933 with alcohol’s Prohibition — take them out of the criminal arena and put them into the health arena where they can be monitored and where people with problems can get help. It works with alcohol and cigarettes, although there are those among us who want a return to alcohol prohibition and want to outlaw cigarettes. I suppose they’ll go after saturated fat next, another substance that is bad for people if overused.

As a result of the federal government’s War on Drugs, corruption among our police and public officials is nearing the levels seen in the Prohibition era of the 1920s and 30s. Not only that, our prisons are overflowing with our youth, the very people the feds said the War on Drugs was meant to protect. And violence on an unprecedented scale has been unleashed on our southern border as Mexican gangs vie for control of the drug trade with the United States.

Notice I used the phrase “drug trade.” It might as well be an illicit trade because the importation of drugs into America is almost as profitable for America’s criminal justice system as it is for international drug gangs and dealers. It keeps them employed! If drugs are legalized, the big losers will be both the drug cartels and the American criminal justice system. There will be significant layoffs among government bureaucrats when America’s prisons are emptied of our youth, when attorneys no longer have easy drug cases involving teenagers smoking pot, and when the cops will be restricted to going after real criminals whose belongings they won’t be able to seize and sell to add to their own coffers.

The damage caused to our Constitutional freedoms thanks to the War on Drugs is appalling. To understand why we as a formerly free people have allowed this to happen, it helps to go back through the history of alcohol and drug prohibition.

The War on Drugs is pretty much a rerun of alcohol’s Prohibition Era, which held its reign of terror in the United States from 1921 to 1933. Both had their beginnings in the minds of moralists and those would-be do-gooders in society who are determined to change people to fit their view of how people should behave.

Women provided the muscle to ban alcohol in 1921. With the help of suffrage which empowered them to vote, they were the main supporters of the Anti-Saloon League, the most powerful political pressure group ever in American history. In an effort to reform their men and free them from the evils of booze, the moralists and their army of suffragettes succeeded in 1921 in passing the Eighteenth Amendment, which outlawed alcohol. It unleashed a wave of criminal violence unlike anything in the nation’s history and caused the suspension of major freedoms in the U.S. Constitution to enforce it. It took the wholesale corruption of the nation’s police forces, judges, and politicians, along with an out-of-control gangster war to control the illicit alcohol trade (gangster income exceeded U.S. Government income) to convince the public, in 1933, that Prohibition didn’t change a man’s determination to have a drink. It was a catastrophic lesson for the thousands imprisoned, left dead, or poisoned by bathtub gin. The end of Prohibition calmed American society like the passage of a great storm, but much of the erosion of freedoms remained permanent.

America’s War on Drugs is the sequel to Prohibition, only modern day do-gooders didn’t go to the trouble to pass a Constitutional amendment. Drug banning initially began in 1914 when religious missionaries who had been to China’s opium dens got Congress to pass the Harrison Act, which outlawed opiates. But it wasn’t until the 1960s that government got serious. I was in my 20s then and everyone my age experimented with drinking beer and smoking pot. Others who admit they at least experimented with marijuana during their younger years include former presidents Bush and Clinton, current President Obama, and notables such as Sarah Palin, Newt Gingrich, and Al Gore.

Just like in the 1920s, the moralists went to work. No one was willing to redo Prohibition, so instead they went after drugs, especially marijuana, the demon weed that was turning our kids into crazed and violent dope addicts. Nothing could have been further from the truth, according to testimony from former New York narcotics officer Joe McNamara, who has testified and written extensively on the subject and states, “There is no record of anyone dying from marijuana or committing a murder under its effects.”

But the government crackdown began, and it gradually built up until, in 1972, President Nixon declared a War on Drugs. The price for an ounce of marijuana increased tenfold almost overnight, drugs went underground, and police arrests, incarcerations, and the corruption of officials began its dramatic rise just like in Prohibition days. At a 1999 Cato Institute Conference on Drugs, McNamara said, “… in hundreds of thousands of cases, police officers violated their oath to uphold the Constitution and often committed perjury so that the evidence would be admitted. The practice is so prevalent that the term ‘testilying’ is often substituted in police jargon for ‘testifying.'”

The main difference from Prohibition is that drugs became the choice of youth. Alcohol still provided the high for the older generations, but marijuana was an irresistible lure for youth. The more government cracked down, the more young people lit up. It became a rite of passage.

It has now been 38 years since Nixon declared the War on Drugs. Government statistics show there were 850,000 arrests for marijuana last year, yet usage by young adults increased 9 percent during that time. Surveys repeatedly show that at least half of all high school kids say they have smoked marijuana.

The government has now spent more than a trillion dollars of taxpayer money on the War on Drugs, with last year’s government expenditure topping more than $40 billion. Approximately half of our prison population, which is the highest in the world, contains young people doing time for minor drug offenses. After tens of thousands of our youths have had their lives ruined due to imprisonment, many being labeled felons unable even to vote, surveys now show more than 75% of Americans acknowledge the drug war has failed.

The money that keeps the war alive

Unfortunately the drug war will not die easily. It now represents a $400 billion industry to international drug cartels and a $40 billion annual taxpayer-funded payday for the giant federal and state bureaucracies responsible for arresting, prosecuting, and imprisoning their fellow Americans who use drugs. Not only are prisons that hold nonviolent drug offenders the main source of income for many towns in America, but policing agencies have gotten themselves hooked on both the annual billions of taxpayer dollars, plus the billions they seize from innocent bystanders through the use of civil asset forfeiture laws.

Civil asset forfeiture laws are one of the most sinister aspects of the drug war. It is a direct government assault on one of the cornerstone’s of America’s Constitution — private property. Federal forfeiture laws were used on a widescale basis during alcohol Prohibition in the 1920s and 30s, and in 1970 they were reintroduced to American society with the Racketeer Influenced and Corrupt Organizations (RICO) Act, then were greatly expanded in 1984 with the Comprehensive Crime Control Act. Originally designed to seize the assets of drug lords, they are now used regularly by cops to seize the assets of ordinary people. The laws became so lucrative for the feds that all 50 states now have their own civil asset forfeiture laws.

As opposed to criminal asset forfeiture where prosecutors must prove someone has committed a crime to seize their property, civil asset forfeiture allows police to seize property that police “suspect” was involved in a drug crime. The property’s owner doesn’t have to be charged with a crime, and in more than 80 percent of cases, according to a major study done by the Institute for Justice, a libertarian civil liberties law firm, they are not.

The typical scenario is this: you get stopped by the cops for any reason and they discover you have $10,000 in cash on you. The only reason someone would have that much money on their person is because it’s payment for drugs, the cops reason, so they seize it. That money is confiscated, and the burden of proof and the expense is on the hapless victim who must go to court to try and get it back. Most instances of civil asset forfeiture are never challenged in court, according to the Cato Institute, because the cost of going to court to prove the property was not involved in a drug crime typically exceeds the cost of the property. In addition, the cops often threaten to bring drug charges against the victim if they don’t relinquish their property willingly.

Abuse of asset forfeiture laws has been rampant for years, as BHM writer John Silveira has pointed out in several past articles (contained in his book, The Coming American Dictatorship). The forfeiture fund controlled by the federal government’s Justice Department contained more than $3 billion as of 2008, but it’s difficult to ascertain how many millions or billions are in state asset forfeiture funds because there is no strict accounting required; it is tantamount to a slush fund divvied up among the cops.

The Institute for Justice study found that “Civil forfeiture laws at the federal level and in 42 states dangerously shift law enforcement priorities toward the pursuit of property and profit.” Disturbingly, it also found that when states try to reform their own forfeiture laws, police circumvent the reforms by turning over seized property to the feds who then return some of the seized loot back to the state under their own more law enforcement-friendly forfeiture laws. In my own state of Oregon, voters in 2000 passed an initiative curtailing some of the worst abuses of our state’s civil asset forfeiture laws. The cops challenged the initiative, tied it up in court until 2006 when the law was upheld. So the cops merely agitated for a new law, passed in 2008, which circumvented many of the reforms of the 2000 voter initiative. At least Oregon cops get to keep only 63% of the assets seized, while in other states’ cops often keep 100%.

The study ranked states by how onerous their forfeiture laws were. States that got an “F” were Massachusetts, South Carolina, Montana, Alaska, Wyoming, and Delaware. But by using a combination of factors, including how aggressive the cops are when going after assets, and how willing they are to circumvent their own laws to nail you, you are most at risk if you live in West Virginia, Virginia, Texas, Michigan, and Georgia. Only Maine, North Dakota, and Vermont got an overall grade of “B” or higher. The entire report is available online at

If this type of behavior were happening in non-government segments of society, someone would be arrested for robbery, extortion, racketeering, and other crimes, but thanks to the War on Drugs, it’s “just business” for America’s criminal justice system.

The toll on our youth

And let’s not forget the human cost of the War on Drugs. At least half of our prison population consists of nonviolent youthful drug offenders. Their lives are ruined, their families devastated. I was lodged among some of them for two days between issues of this magazine when I was convicted of drunk driving, a first offense of any kind for me. Although I vehemently asserted my innocence at trial, I quickly realized my brief incarceration was a godsend. For years my senior editor, John Silveira, and I had written about the abuses of our prison system and the fact it mainly houses nonviolent offenders. Now I was incarcerated (and how easy it was to go to jail) among 19 and 20-year-old kids whose only offense was possessing small amounts of drugs, either marijuana or meth.

These kids were hapless and clueless, represented by overwhelmed public defenders who had to do battle with a state armed with unlimited resources. Most of them had been picked up on probation violations. One was 19 years old, the same age as my son, Jake, who is in his first year of college. It occurred to me that Jake too could be busted and put in jail if he experiments with marijuana in college, like most college students do. Three of my fellow inmates, in their 20s, had lost their jobs when they were jailed for probation violations involving charges like “being in the presence of a known drug user” and “having an unopened case of beer in a car in which he was a passenger.”

These kids were part of a revolving-door local jail system that kept the cops, prosecutors, judges, and jailers employed at an average salary, according to county records, of more than $70,000 a year. They simply represented paychecks for the bureaucracy charged with arresting, incarcerating, releasing, following, then rearresting them for minor probation violations. I interviewed the kids extensively and wrote about some of them in my online blog at the BHM website, www. None had committed violent crimes. These kids needed counseling and help, not jailing in a dungeon-like cell with nothing to do and no job prospects when they got back out.

America is a police state

America has become a de facto police state thanks to the War on Drugs. Many Americans can’t see what has happened to their country because they have become the frogs in the slowly heated pot of water. They don’t yet realize they have been boiled and their freedoms evaporated away. We let our government violate our rights, seize our property, and imprison our youth because we have been conditioned to believe that drugs are the ultimate evil in society — so evil that it is worth giving up freedom to eradicate them.

We hear a lot of talk from politicians about how Mexico is on the verge of becoming a failed state due to its ongoing drug violence. I would argue that America is already a failed state in terms of it having thrown out its own Constitution and given our police nearly unlimited power over us in the name of winning the War on Drugs. For God’s sake, the percent of our population in jail is the highest in the world, nearly eight times higher than Europe’s.

But how do we repeal the War on Drugs? By 1933, Americans had had enough of alcohol Prohibition and demanded its repeal. But by that time police had a vested interest in maintaining the huge bureaucracies it had built to battle illegal alcohol and in the huge amounts of assets the government was seizing from ordinary people, including the cars of those who had alcohol on board. With the Depression in full swing, it had become a money and employment issue for government, and some people thought Prohibition would never be repealed because of that fact. But it did get repealed, although the freedoms lost during that era were never fully restored.

We are in the same position today, with a steep recession and huge bureaucracies dependent on all those billions they get to fight the War on Drugs. Government wants to keep drugs illegal, and they’ll wage a campaign of lies and threats every time voters have a chance to change things.

And what about all those terrible predictions about how legalized marijuana will unleash hordes of marijuana-addicted criminals among us who will be driving and going to work under its influence? Portugal has been the testing laboratory for this theory since 2001, when it decriminalized (next best thing to legalizing) all drugs, including even heroine and cocaine. In those intervening nine years, Portugal’s drug usage rates have not increased, and Portugal has gone from one of the worst drug-abusing nations in the European Union to one of the least abusing, especially when compared to European countries that have increased their crackdown on drug use. According to the Portugal experiment, government crackdowns make drug usage worse, while a government backoff, which takes drug abuse out of the criminal arena and puts it into the medical arena, does not increase usage rates.

The next time a measure like Proposition 19 comes up for a vote, conservatives need to get beyond the government lies, understand that it is a freedom issue and not just a drug issue, and vote to support the U.S. Constitution.