The Other Unconstitutional War

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It wasn’t long after World War II ended that U.S. troops were once again involved in another foreign war. This time, however, there was a notable difference. After North Korea invaded the South in 1950, President Truman intervened with U.S. combat troops in a United Nations “police action.” There was no congressional declaration of war. There was not even the slightest pretense of consulting Congress.

On five different occasions, the United States had declared war on other countries: the War of 1812, the Mexican War (1848), the Spanish-American War (1898), World War I (1917), and World War II (1941 against Japan, Germany, and Italy; 1942 against Bulgaria, Hungary, and Romania).

That Congress issued these declarations of war doesn’t necessarily mean that they should have been issued. It just means that it was recognized that a major military engagement called for a real declaration of war by the Congress according to Article I, Section 8, of the Constitution.

But not only did over 36,000 American soldiers needlessly die in the Korean War when we entered that conflict under the auspices of the UN, the results of this unconstitutional action are still with us today. Since the armistice was signed in 1953, a day has not gone by when the United States has not had thousands of troops stationed in South Korea. There are at least 25,000 U.S. soldiers still in Korea, some no doubt the grandchildren of the soldiers who fought in the Korean War.

But this Korean intervention also set a terrible precedent, as no declaration of war has ever been issued since World War II even though the United States has been involved in many military conflicts since then, with some of them being major wars like Vietnam, Iraq, and Afghanistan.

A War for Our Own Good

Aside from U.S. military operations in Iraq, Afghanistan, Pakistan, Yemen, Somalia, Libya, and now Uganda, there is currently raging another destructive and unconstitutional war at home. And this one has been going on for over forty years.

It was just over 40 years ago that President Richard Nixon began the federal war on drugs. Said Nixon: “In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive.” The President declared drug abuse to be “America’s public enemy number one” and “a national emergency.” He continued his military rhetoric in a special message to Congress on drug abuse prevention and control, calling for a “full-scale attack” on drug abuse “on many fronts.” To wage “an effective war against heroin addiction,” he called for “a worldwide escalation in our existing programs for the control of narcotics traffic.” Legislation then recently passed in Congress provided “a sound base for the attack on the problem of the availability of narcotics in America.”

None of this means that the federal government didn’t fight against drugs and drug abuse before Nixon. Although all drugs in the United States were legal up until the 20th century, the federal government began introducing anti-narcotics laws in 1905. It was Nixon, though, that formally declared war on drugs, appointed the first drug czar, and oversaw the establishment of the Drug Enforcement Agency (DEA) in 1973. The drug war escalated again under President Ronald Reagan in the 1980s with his wife’s “Just Say No” campaign. Although 15 states and the District of Columbia have legalized marijuana for medical use, the federal war on drugs continues unabated and enjoys wide bipartisan support.

But what has the decades-long federal war on drugs actually accomplished? How much has it cost? Has it curtailed drug abuse? Has it, in fact, been any more successful at curtailing drug abuse than Prohibition was at curtailing alcohol abuse? Why, unlike Prohibition, was it imposed without a constitutional amendment granting the government the power to do what it is doing? And should the power even be granted through the amendment process, or should the federal war on drugs be ended?

Another Failure

Even though the federal war against alcohol known as Prohibition was constitutional owing to the 18th Amendment, most Americans would today undoubtedly agree that its repeal via the 21st Amendment was a good thing. But all of the unconstitutional wars the federal government is now waging – including its war on drugs – should be ended as well.

Like Prohibition, the war on drugs is a failure. It has failed to prevent drug abuse or reduce the demand for drugs. It has failed to keep drugs out of the hands of addicts and away from teenagers. It has failed to stop the flow of drugs into the United States. According to the latest National Survey on Drug Use and Health conducted by the Substance Abuse and Mental Health Services Administration: “Drug use in the United States increased in 2009, reversing downward trends since 2002.” There was even a spike in the number of Americans admitting to using ecstasy and methamphetamine. The government’s own Government Accountability Office has even said that the anti-drug D.A.R.E. program has had “no statistically significant long-term effect on preventing youth illicit drug use.”

But that’s not all.

The costs of the war on drugs exceed its benefits. According to a study released last year by the Cato Institute, spending on the drug war tops $41 billion a year.

The war on drugs has clogged the federal court system. Chief Justice William Rehnquist made this point as far back as 1989. And in testimony before the Senate Judiciary Committee last month, Supreme Court Justice Antonin Scalia remarked that “it was a great mistake to put routine drug offenses into the federal courts.”

The war on drugs makes criminals out of too many otherwise law-abiding Americans. The DEA made almost 31,000 arrests last year. According to the FBI’s latest report on “Crime in the United States,” over 1.6 million Americans were arrested on drug charges in 2010, with almost half of those arrests just for marijuana possession. There is one drug arrest in the United States every 19 seconds.

The war on drugs unnecessarily swells prison populations. Over half of the federal prison population and about 20 percent of the state prison population are imprisoned due to the drug war.

The war on drugs hinders legitimate pain management. Physicians that specialize in pain treatment face the increasing danger of arrest by the DEA for prescribing their patients a dose of painkillers higher than some government-set maximum.

The war on drugs has resulted in gross absurdities. Due to the Combat Methamphetamine Epidemic Act, which is title VII of the USA PATRIOT Improvement and Reauthorization Act of 2005, over-the-counter allergy-relief products like Sudafed have been rationed and their use criminalized because they contain pseudoephedrine, which might be used in the illegal manufacture of methamphetamine.

The war on drugs has destroyed financial privacy. Deposit more than $10,000 in a bank account and you are a suspected drug trafficker. Travelers carrying what the government thinks is too large an amount of cash are subject to harassment and having their property confiscated.

The war on drugs has provided the rationale for militarizing local police forces. The Pentagon has transferred millions of pieces of surplus military gear to local police departments. The majority of the 130-150 raids per day conducted by SWAT teams are to serve search warrants on people suspected of drug crimes.

The war on drugs has resulted in outrageous behavior by police in their quest to arrest drug dealers. The city of Daytona Beach Shores was recently ordered to pay four dancers and two bartenders (and their attorneys) a total of $195,000 to settle a federal lawsuit after they were illegally strip-searched during a raid on their club. The women were strip-searched in front of a group of male officers after police were told that some employees were selling prescription pills and other illegal narcotics to patrons. A federal judge found that “the search warrant did not authorize a strip search of anyone in the club.”

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