We Should All Agree On Drug War Federalism

There are conflicted views among Republicans on the Drug War. The majority maintains that it should continue. I happen to agree with icons such as Barry Goldwater, Milton Friedman, and William F. Buckley that is should be ended.

Whatever your opinion, we should all be able to agree that drug laws belong on the state and local level. Proponents of Prohibition in the early 20th century clearly understood that in order for a nationwide ban to be Constitutional, an amendment would have to be ratified. And one was in the form of the 18th Amendment. No such amendment has been passed for drug prohibition.

The enumerated powers in Article 1, Section 8 of the Constitution do not grant Congress the authority to regulate or prohibit drugs. That should be the end of the argument. Inevitably though, some Republicans will end up justifying federal involvement using one of the three common clause fallacies in Article 1, Section 8: the General Welfare clause, the Commerce Clause, or the Necessary and Proper clause. Ilya Shapiro of the Cato Institute does a great job of breaking down the purpose of those three clauses:

  • Contrary to modern readings, the General Welfare Clause does not grant Congress an independent power to tax and spend for the “general welfare.” If it did, there would be no need to enumerate any other powers.  Rather, it authorizes Congress to enact the specified taxes for the specified purposes—headings more precisely defined by the 17 enumerated powers or ends that follow. And Congress’s power to tax for the “general welfare” precludes it from taxing to provide for special parties or interests.
  • The Commerce Clause too does not authorize Congress to regulate anything and everything, which again would put an end to the idea of a government of enumerated and thus limited powers.  Under the Articles of Confederation, states had erected tariffs and other protectionist measures that were impeding interstate commerce. To end that and ensure free interstate commerce, Congress was given the power to regulate, or “make regular,” such commerce—the main sense of “regulate” at the time. Were Congress thought to have the all but unbounded regulatory power it exercises today, the Constitution would never have been ratified.
  • The Necessary and Proper grants Congress the means to execute its enumerated powers or ends and those of the other branches. It adds no new ends. And the means must be “necessary and proper.”  That means they must respect the Constitution’s structure and spirit of limited government; they must respect federalism principles; and they must respect the rights retained by the people.

So there you have it. Drug laws are undeniably a state issue and a function of federalism.

The idea behind federalism is simple and I shouldn’t have to explain it. The basic premise is that states, being sovereign, granted specific powers to the federal government to carry out. The rest were to be retained by the states, period. The federal government derives its authority from the states, not from itself. If a person does not like the policies in one state, that person could move to a state which more suits them. This prevents the bad decisions of a central authority from causing all of us trouble.

It would be intellectually dishonest for any Republican who claims to support the Constitution to also support the federal Drug War. The federal Drug War is a good litmus test to find out if a candidate or politician really understands the Constitution or not.