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The Eighteenth Amendment and the War on Drugs

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For more than 40 years now the U.S. government has been waging its War on Drugs. After declaring drug abuse to be “America’s public enemy number one” and “a national emergency,” Richard Nixon employed military rhetoric as he launched his war on individual liberty, personal freedom, and private property, calling for a “full-scale attack” on drug abuse “on many fronts” to “fight and defeat” the “enemy” by waging “a new, all-out offensive.”

The Drug War is an expensive, destructive failure just like the federal government’s earlier attempt to regulate and control Americans’ consumption: Prohibition.

Ninety-five years ago this week, the Eighteenth Amendment to the Constitution was ratified by 19 states (California, Tennessee, Washington, Arkansas, Illinois, Indiana, Kansas, Alabama, Colorado, Iowa, New Hampshire, Oregon, North Carolina, Utah, Nebraska, Missouri, Wyoming, Minnesota, Wisconsin), thus bringing the total number of states approving the proposed amendment over the necessary number of 36.

Of the 35 times a proposed amendment has been sent by Congress to the states, only 27 times has it been ratified, most recently in 1992.

A resolution proposing the Eighteenth Amendment to the Constitution was adopted by the U.S. House of Representatives on December 17, 1917, by a vote of 282 to 128. The Senate passed the resolution the next day by a vote of 47 to 8.

The ratification of the Eighteenth Amendment was completed on January 16, 1919. The Amendment also took effect this week on January 17 — 94 years ago.

The Eighteenth Amendment contains three sections:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the Legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Although this was the first amendment with a time limit for ratification, it took only about a year for ratification to take place. Note that the amendment doesn’t ban the consumption or possession of alcohol, just its “manufacture, sale, or transportation.” Nevertheless, it effectively curtailed the legal use of alcoholic beverages in the United States.

The follies and failures of Prohibition are well documented in the recent book by Daniel Okrent, Last Call: The Rise and Fall of Prohibition (Scribner, 2010), which was also made into a PBS documentary.

The Eighteenth Amendment was repealed by the Twenty-first Amendment. It was proposed by Congress on February 20, 1933, and was passed by a vote of 289 to 121 in the House and 63 to 21 in the Senate. It was adopted on December 5, 1933, after its approval that day by the states of Ohio, Pennsylvania, and Utah. Two more states (Maine and Montana) subsequently ratified the Amendment. The effective date of the Twenty-first Amendment was December 15, 1933. It is the only constitutional amendment whose sole purpose was to repeal an earlier amendment, and the only one to be ratified by state conventions instead of state legislatures.

So what does the Eighteenth Amendment on alcohol prohibition have to do with the war on drugs?

Everything.

The “appropriate legislation” mentioned in the text of the Eighteenth Amendment that was later passed by Congress to institute Prohibition was the National Prohibition Act, also known as the Volstead Act, after Andrew Volstead (1860–1947), the chairman of the House Judiciary Committee from 1919 to 1923.

The Volstead Act, which was passed over Woodrow Wilson’s veto, stated that “no person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act.” It defined “intoxicating liquor” as any beverage containing more than 0.5 percent alcohol by volume, granted exceptions and exemptions for medical and religious purposes (a loophole that was generously taken advantage of), and provided penalties for the law’s violation. (The first offense could result in a fine of not more than $1,000 or a term of imprisonment not exceeding six months.) And although the Volstead Act did not criminalize the possession of alcoholic beverages, it practically did:

After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the Provisions of this title.

That was especially the case, since the “burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used.”

The important thing to note here is that the Volstead Act could not be passed by Congress until after the adoption of the Eighteenth Amendment to the Constitution. That is because the Constitution nowhere authorizes the federal government to prohibit or control the manufacture, sale, barter, import, export, delivery, possession, or use of “intoxicating liquors.” When the Progressives wanted the national government to ban alcohol, they realized that an amendment to the Constitution was needed. Prohibition on the state and local level had already been implemented in some areas of the United States. Indeed, after the repeal of national Prohibition, state and local prohibition simply resumed in some areas. A limited number of “dry” counties still exist today in some states.

As James Madison succinctly explained our federal system of government in Federalist No. 45, “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

That is lost on conservatives, who are some of the most ardent drug warriors even while they claim to honor and follow the Constitution. “We are the party of the Constitution,” says the Republican Party platform.

The national War on Drugs is even worse than Prohibition not only because it violates the Constitution, but because it specifically criminalizes possession and use, which things the Volstead Act did not criminalize. And even if it were constitutional, it is simply an illegitimate function of government to concern itself with any substance that any individual wants to put into his own body.

Like Prohibition, the War on Drugs is a failure. It has failed to prevent drug abuse. It has failed to prevent drug overdoses. It has failed to reduce drug use. It has failed to reduce the demand for drugs. It has failed to keep drugs out of the hands of addicts. It has failed to keep drugs out of the hands of teenagers. It has failed to keep drugs out of schools. It has failed to keep drugs out of prisons. It has failed to stop the flow of drugs into the United States. It has failed to stop the violence associated with drug trafficking.

But the War on Drugs is not just a failure, it has also fostered great evils when it comes to privacy, the prison system, the judicial system, law enforcement, pain treatment, and civil liberties.

Although the Drug War is blatantly unconstitutional, an illegitimate function of government, a monumental failure, and the cause of a great many evils, we should never loose sight of the fact that above all its real problem is that it is a war on property and freedom.

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