conservative is in a perpetually uncomfortable and probably untenable
position. On the one hand, he agrees with religious and "social"
conservatives on the way many things ought to be in our culture.
On the other hand he believes in the necessity of limited government
and free markets. He prefers liberty to the violence of tyranny
and the poverty of socialism. And he believes that the Constitution,
though perhaps not perfect, is the best means of limiting government,
especially at the federal level. He becomes, by logical necessity,
a state's rights advocate. Better for injustice and bad laws to
persist in a few states, then to be imposed on all states.
He also becomes,
practically, an isolationist. The Constitution authorizes Congress,
not the President, to declare war. This is substantially different
from "authorizing" the President to start a war. By this
standard, the Constitutionalist would object to all of our wars
since World War II.
on to the conservative label and philosophically rejecting libertarianism,
the Constitutionalist discovers that he agrees with libertarians
on 90% of the issues facing our nation. And he is further alienated
from other conservatives as they rally around President Bush and
his neo-conservative advisors. He remembers loathing Bill Clinton
because of Waco, his military adventures, his anti-gun rhetoric,
busy-body legislation, and attempt to take over health care. He
finds out that his fellow Republicans and conservatives mainly despised
Clinton because, well, he was Clinton. And also, that he was married
to Hillary. And cheated on her. But they don't mind – they
even cheer for – similar policies from the Bush Administration
like non-defensive wars, unprecedented federal police powers, and
federal take-over of our schools.
I am thankful
that I never got on the Bush bandwagon. Five years ago, George W.
Bush looked like a significantly better Presidential candidate than
Al Gore. Bush was at least rhetorically on target on cutting taxes,
a "humble" foreign policy, federalism, and a conservative
judiciary. But his tax cut proposals were too modest – he wanted
to repeal Clinton's tax hikes but not his own father's. His "humble"
foreign policy was vague, as was his federalism; both had a "wouldn't
that be nice" ring to it, as opposed to "this is my plan."
That left only some dim hope that Bush would nominate several Clarence
Thomas clones to the Supreme Court.
enough for me. Bush did not promise to even try to shrink government,
and he called for unprecedented federal involvement in religious
charities and education. Although in my mind he was still better
than Gore, I had the sense that Bush would lead us along the wrong
path. Theoretical gains in the courts wouldn't overcome setbacks
for the causes of federalism and small government elsewhere. What
about constraining the federal government to the enumerated powers
of the Constitution?
I still thought
of myself as a conservative, and dismissed the libertarian philosophy
I thought I understood without actually studying it (although I
was actually far more libertarian then, than a lot of dope-smoking
warmongers who claim the label today). I still liked Rush Limbaugh
and William F. Buckley. And it was Buckley who unwittingly pushed
me into the intellectual adventure I'm on now. The instigator was
a Buckley column on a tragedy – a murder by the federal government
– that took place five years ago today. Buckley
is dead. Age? Fifty. Profession? Author, poet, publisher.
focus of interest? The federal judge in California (George King)
would decide in a few weeks how long a sentence to hand down,
and whether to send McWilliams to prison or let him serve his
sentence at home.
his offense? He collaborated in growing marijuana plants.
his defense? Well, the judge wouldn’t allow him to plead his
defense to the jury. If given a chance, the defense would have
argued that under Proposition 215, passed into California constitutional
law in 1996, infirm Californians who got medical relief from
marijuana were permitted to use it. The judge also forbade any
mention that McWilliams suffered from AIDS and cancer, and got
relief from the marijuana.
he doing when he died? Vomiting. The vomiting hit him while
in his bathtub, and he choked to death.
nothing he might have done to still the impulse to vomit? Yes,
he could have taken marijuana; but the judge’s bail terms forbade
him to do so, and he submitted to weekly urine tests to confirm
that he was living up to the terms of his bail.
Buckley, I thought, "That's it. I'm voting Libertarian."
And I've never looked back.
was McWilliams a random victim of mindless federal intrusion in
our private lives? Was taking marijuana his real capital crime?
The winter before he died, McWilliams
told his side of the story and mentioned this:
I was questioned
by four DEA Special Agents. They gave me an interesting – and telling – piece
of information. All four said they had known about me for some
time, because most every bust they go on, they find a copy of
my book Ain’t
Nobody’s Business if You Do: The Absurdity of Consensual Crimes
in Our Free Country. They didn’t say it, but it was clear
that, to them, I was the guy who wrote the bestselling book against
the Vietnam War, the DEA Special Agents were the Green Berets.
I was a traitor to their cause, and I was spreading my treachery
through the written word.
1, 1997, I published as an advertisement in Variety a
two-page essay highly critical of then-DEA Administrator Constantine’s
harsh criticism of the sitcom character Murphy Brown’s use of
medical marijuana to quell the nausea of chemotherapy.
As you can
tell by even a quick skim of the Variety ad, the DEA was not happy
with moi. Seventeen days later, on December 17, 1997, nine DEA
agents came a-callin’ with the IRS and a search warrant in tow.
I was handcuffed, sat in a chair, and watched as they spend the
next three hours going through every piece of paper, sheet by
sheet, in my home. They found an ounce or two of medical marijuana,
but they didn’t seem to be looking for drugs; they were looking
and IRS agents then repeated this at my brother’s house and
at the office of my publishing company, Prelude Press, Inc.
Of eight computers they had to choose from, they took only my
personal computer, the one with my unfinished books on it. Their
reason for taking this was that they were looking for records
of drug transactions. If this were the case, why didn’t they
take the computer in the accounting department at Prelude Press?
Could they have been looking for something else, such as! that
book critical of the DEA I told them I was working on? They
also took “eight plastic bags” of documents that I was not allowed
to see and which have not yet been returned.
harassed, hounded, and killed by the federal government for using
marijuana? Or for writing libertarian, anti-government literature?
the Supreme Court's Gonzales v Raich decision upheld the
federal government's authority to ban medical marijuana, overruling
state laws to the contrary, and essentially saying that McWilliams'
death was well-deserved. This, through Congress's Constitutional
power to regulate commerce among the states. Which is apparently
so broad, as to include growing your own plants on your own property
for your consumption. In other words, through the Commerce clause
of the Constitution, the federal government has absolute power over
If the majority
in Raich is correct, then the Constitution does not protect
our liberty and limit the size of government, but actually authorizes
and legitimizes unlimited and tyrannical government. But if
the majority is incorrect, then what we have is a complete breakdown
of the Constitution. Congress passes an unconstitutional law, the
executive signs it and then argues for it before the Supreme Court,
and the Court affirms it.
mean, the Constitution is good in theory, but it requires good and
wise men to defend it, which we don't have today. But that makes
it no different from any other political arrangement or constitution.
If the culture favors liberty, we will get it; if it does not, then
no Constitution will bring it about. The Constitutionalist is without
his Constitution. Where will he go?
himself said it best, in an
interview in the autumn of 1999:
so far away from what the constitution was written as, we as
well just tear the whole thing up. It’s a sham. It’s ridiculous.
The constitution was based upon the fact the federal government
had exceedingly limited powers. It was only allowed to do eighteen
very limited things – the enumerated powers, period. And everything
else belonged to the states and the individuals to regulate.
become such that if the constitution doesn’t specifically guarantee
you can have it, it’s okay for the government to regulate it or
make laws against it. That is putting the constitution on its
head. It’s like saying, if a woman doesn’t carry a sign on her
back that says you can not rape me, she has permission to be raped.
It is that. And boy, has lady liberty been raped – repeatedly.
I never met
you, Peter, but I miss you.
February 5, 2010:
read more about Peter, please visit “Peter’s
Page,” a Tribute to Peter McWilliams. View what writers
such as James have to say about Peter and read and leave comments,