• Judge Jim Gray

Drug Prohibition is Unconstitutional!



The Constitution provides that all powers belong to “We the People,” such that the federal government only possesses the powers that We expressly have delegated to it in the Constitution. And there is no such delegation in the Constitution for the federal government to prohibit the use or sale of presently illicit drugs, as long as the products are not involved in interstate commerce. None! That fact is strongly reinforced by noting that when the federal government desired to prohibit the sale of alcohol it was forced to pass the 18th Amendment to the Constitution in 1919 to gain that power. Then, when it became apparent that this approach was not working, it was forced to pass the 21st Amendment in 1933 to change the Constitution by repealing the 18th.


So, with that history, how was the federal government able to prohibit these other drugs? The answer is that it was creative – and sly. The first statute that attempted in effect to prohibit narcotics was the Harrison Narcotics Act of 1914. But that statute did not make the actual sale of narcotics illegal, it instead required that anyone selling that product pay a ridiculously high sales tax for the sale. Then if the seller did not pay the tax, it was a punishable violation of federal law. The same thing happened with marijuana with the passage of the Marijuana Tax Act of 1937. So by the time that the first statute that actually prohibited these drugs was being considered and passed, which was the Controlled Substances Act of 1970, there was barely a peep of protest, because almost everyone by then was accustomed to these drugs effectively being verboten. On this subject, I also must address the 2005 Supreme Court case of Gonzales v. Raich. In that case Ms. Angel Raich was growing six marijuana plants in her own garden for her own personal use in California, which was a medical marijuana state, to alleviate a serious medical condition. But federal agents entered her property and destroyed the plants, so she brought suit to enjoin any such future conduct. In this badly-decided case, the Supreme Court held that federal agents had the power to destroy the marijuana plants based upon the “fact” that if she did not grow the marijuana herself, she would then be forced to purchase other marijuana that could have been transported in interstate commerce. And that was enough of a link to justify that federal seizure. In essence, that means that the rocks in your back yard could be considered to be involved in interstate commerce, which also means that the federal government could control any items that it desired. A senseless result!


But, with the demonstrable harms that drug prohibition has caused to our country and the world, we all should rally and demand that this failed policy be repealed – not only politically but constitutionally! Just like with alcohol prohibition, enforcing drug prohibition results in there being virtually no quality control. Thus virtually all of the deaths from fentanyl can be attributed to drug prohibition. No one will intentionally put fentanyl into their bodies, but with illicit drugs they do it unknowingly! In addition, it is easier for children to obtain illicit drugs today than it is for them to obtain a six-pack of beer. (If you don’t believe me, ask the next ten teenagers you find, and that is what most of them will tell you!) Age restrictions are the last thing an illicit dealer is concerned about. And then there is drug money crime! As an example, virtually all of the violence, extortion, fraud and even beheadings in Mexico have nothing to do with drugs. They are mostly directly caused by drug money – and it is mostly our money that is involved. (How does that make you feel?) And then often many adult drug dealers will recruit young people to act as drug couriers or lookouts. Why? Because they are a cheap source of labor. And then, once the youngster’s reliability is established, the drug dealer often will trust them to sell small amounts of drugs in their community. So ask yourself, when a 15 year-old boy – or girl – sells drugs, whom are they going to sell to, people like us? No, they will sell to their young friends and acquaintances, thus introducing more young people to a life of drug usage and drug selling. It is not at all a pretty sight. Finally, juvenile street gangs use the sale of illicit drugs as a recruiting tool. “Hey, you want to make some easy money? Join our gang and that’s what will happen.” Not at all a good thing. So, once again, please make it a priority to help us repeal the failed and unconstitutional policy of drug prohibition!

This article is a reprint of an original post published on Judge Jim Gray's site. The views expressed in it are those of the author and not necessarily the views of the Libertarian Party of Orange County.


James P. Gray is a retired judge of the Orange County Superior Court, and presently works as a private mediator and arbitrator for ADR Services, Inc. He was also the 2012 vice presidential nominee for the Libertarian Party, and can be contacted at JimPGray@sbcglobal.net, or through his website at www.JudgeJimGray.com.

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