Even though it is true that the government currently bans all kinds of things, I am asking a serious question. Let me expand and clarify it. Is the federal government authorized by the Constitution to make illegal the possession of any substance that it deems it to be harmful, hazardous, immoral, addictive, threatening, damaging, injurious, destructive, unsafe, or dangerous to an individual or to society?
I am not talking about state governments—that is a separate issue. I am talking about the U.S. national government that was set up by the Constitution in 1789. The Constitution that was amended in 1791, 1795, 1804, 1865, 1868, 1870, 1913, 1919, 1920, 1933, 1951, 1961, 1964, 1967, 1971, & 1992. The Constitution that is the supreme law of the land. The Constitution that all conservatives claim to revere. The Constitution that all conservatives say they expect the federal government to follow. The Constitution that conservatives drag out and dust off every time there is an election. The Constitution that the Republican Party says it is the party of. The Constitution that all members of Congress swear to support and defend. The Constitution that the president swears to preserve, protect, and defend. The Constitution by which the Supreme Court is expected to judge all laws.
I have several times brought up this question of the government having the authority to ban anything in the context of the federal government’s War on Drugs. In arguing that the Constitution nowhere authorizes the federal government to concern itself with the nature or quantity of any substance that any American wants to eat, drink, smoke, inject, absorb, snort, sniff, inhale, swallow, or otherwise ingest into his body, I have sometimes added that the federal government has no authority to ban drugs because it has no authority to ban anything. I have also occasionally pointed out that when the federal government sought to prohibit the “manufacture, sale, or transportation of intoxicating liquors” after World War I, it realized that it could only do so by amending the Constitution, hence the Eighteenth Amendment. I have even written a whole article on this.
But is this really the case? Does the federal government really not have the authority to ban anything or was I just using hyperbole?
Well, first of all, in Article I, Section 8, of the Constitution, there are eighteen paragraphs that enumerate the limited powers the Constitution grants to Congress. Limited powers. Very limited powers. Four of them concern money or taxes. One concerns commerce. One concerns naturalization and bankruptcies. One concerns post offices and post roads. One concerns copyrights and patents. One concerns federal courts. One concerns maritime crimes. Six concern the military and the militia. One concerns the governance of the District of Columbia. And the last one gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Since the Twenty-First Amendment Repealed the Eighteenth, nothing in any of the Constitution’s amendments gives the federal government any additional power to ban something.
Second, anything not so enumerated in Article I, Section 8, of the Constitution is reserved to the states. Period. It can’t be any other way, since the states were in existence before the Constitution, the states sent delegates to the Constitutional Convention who created the Constitution, and the states ratified the Constitution. And just to make sure there is no doubt about what is delegated and what is reserved, the Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
James Madison succinctly explained this simple federal system of government in Federalist No. 45:
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
So, what does all of this mean for Americans in the twenty-first century? It means the same thing it meant in the eighteenth, nineteenth, and twentieth century.
The federal government has no authority whatsoever under the Constitution to ban the possession of not just any drug—including cocaine, heroin, and meth—but also moonshine, any kind of gun, any type of ammunition, elephant ivory, exotic animals, Cuban cigars, unlicensed dentures, home-brewed beer and wine, and bald eagles.
Just like the federal government has no authority whatsoever under the Constitution to mandate that pharmacies keep Sudafed and other allergy medicines behind the counter.
Just like the federal government has no authority whatsoever under the Constitution to declare a portion of your property a wetland and fine and imprison you for filling it in with dirt.
Just like the federal government has no authority whatsoever under the Constitution to limit the number of withdrawals that Americans can make from their savings accounts each month.
One can search the Constitution all morning, all afternoon, all evening, all day, and all night with an electron microscope, x-ray vision, and MRI machine, the latest NSA spyware, and night-vision goggles and never find the hint of a reference to the federal government having the authority to prohibit Americans from possessing some object.
Conservatives want to be applauded for expressing their fidelity to the Constitution just for saying that Obamacare should be repealed because it is unconstitutional. But since it is clear that the Constitution doesn’t authorize the federal government to ban anything, it is likewise clear that conservatives—and especially Republican members of Congress—are not only woefully ignorant of the document they claim to hold in such high esteem, but are in fact enemies of the Constitution because they support almost every one of the federal government’s illegitimate and unconstitutional prohibitions on possessing certain objects.
That the federal government unconstitutionally criminalizes the possession of so many things is bad enough. But that the vast majority of Americans accept this as legitimate is even more troubling.