A Constitutionalist 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.
Still holding 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.
Which wasn't 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 wrote:
Peter McWilliams is dead. Age? Fifty. Profession? Author, poet, publisher.
Particular 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.
What was his offense? He collaborated in growing marijuana plants.
What was 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.
What was he doing when he died? Vomiting. The vomiting hit him while in his bathtub, and he choked to death.
Was there 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.
After reading Buckley, I thought, "That's it. I'm voting Libertarian." And I've never looked back.
But 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.
And
On December 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 for information.
The DEA 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.
Peter McWilliams, harassed, hounded, and killed by the federal government for using marijuana? Or for writing libertarian, anti-government literature?
Last week, 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 our lives.
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.
Which would 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?
Peter McWilliams himself said it best, in an interview in the autumn of 1999:
We are 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.
Now it’s 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.
Update: February 5, 2010:
To 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, too!
June 14, 2005
