Asa's Choice

by Myles Kantor

Last week the Senate confirmed Rep. Asa Hutchinson of Arkansas to head the Drug Enforcement Administration. He said upon confirmation, "I am excited to have the opportunity to serve Arkansas and the country by beginning our great national crusade against illegal drugs."

Hutchinson makes no less than four affirmations here: 1) Certain drug use should be criminal, 2) It is within the federal government's purview to criminalize certain drug use, 3) The federal government ought to criminalize certain drug use, 4) Federal criminalization of certain drug use benefits the State of Arkansas and America.

Let's problematically assume that certain drug use – the non-aggressive introduction of a chemical into one's body – should be criminal. (Leave aside Ludwig von Mises's penetrating discussion in pp. 728-729 of Human Action.) Hutchinson's sentiments remain objectionable.

Hutchinson belongs to a party that claims to value constitutional norms, one of which is the separation of powers between the federal and state governments. This vital division of authority – also known as federalism – manifests in the Tenth Amendment and amendment process, among other areas.

The federal government's mandate is thus finite, constrained. The Founders' design does not contemplate a boundless central agent nationalizing quintessentially state and local concerns.

Even if one believes drug use should be criminal, that doesn't mean the federal government is the proper body to establish this policy, anymore than it's the proper body to establish a uniform penalty for burglary. On the contrary, a national law on drug policy or burglary displaces the separation of powers elemental to American government with counter-constitutional homogenization.

Anti-booze activists had the decency to recognize their objective required a constitutional amendment; pre-18th Amendment America did not permit congressional prohibition of alcoholic beverages. Anti-drug crusaders haven't felt obligated to fulfill nomocratic requirements, however.

Hutchinson has made federalist professions. For instance, he referred to "the Constitution and the concepts of federalism that we [Republicans] hold dear" last year in a conversation with Ray Suarez.

Plainly stated, anyone who endorses the War on Drugs can't care that much about constitutional government, the Bill of Rights – the whole American republic thing. This secular jihad has been the most violent, prolonged offensive against federal republicanism in U.S. history. (See Steven Duke's "The Drug War and the Constitution," in After Prohibition: An Adult Approach to Drug Policies in the 21st Century.)

Someone who wishes to criminalize drug use but respects American nomocracy would pursue a constitutional amendment or seek to criminalize drugs on a state by state basis. He would not leapfrog the rule of law and deliberative channels by encouraging less than six hundred legislators to determine whether a joint will be legal from Anchorage to Albany.

An eminent Southerner once wrote, "The legitimate powers of government extend to such acts only as are injurious to others." This Southerner also noted that "it is not by the consolidation, or concentration of powers, but by their distribution, that good government is effected."

It is to the continuing oppression of America that Asa Hutchinson, a Southerner but not a Southern conservative, chooses tyranny instead of Thomas Jefferson's truths.

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