You probably remember the good ole’ frying pan, fried egg, fried brain anti-drug commercial from back in the day. If taking a good beating from a frying pan is what happens to your brain on drugs, you should check out what’s happened to your Bill of Rights on drugs. Almost 40 years ago, perhaps sparking the Bush team’s bright idea to declare a “war on terror,” President Nixon declared a “war on drugs.”
By the time George Bush Sr. entered the White House in 1989, a Washington Post-ABC News Poll found that 62 percent of Americans would be willing to give up a few of their freedoms in order to fight the war on drugs. And Uncle Sam has been more than willing to take them up on it. Most of the court cases within the past 40 years that have methodically abridged individual rights like freedom of religion, freedom of speech, freedom from unreasonable searches and seizures and property rights, have all concerned drugs. Supreme Court Justice Thurgood Marshall even coined a term for the growing practice of sacrificing constitutional rights in the name of the fighting drugs: the “drug exception.”
It seems appropriate on this Constitution Day to take a few moments to mourn all that we’ve lost from the Bill of Rights and the Constitution due to these “drug exceptions:” Freedom from Unreasonable Search and Seizure: Perhaps the big loser of all has been the Fourth Amendment, which limits the power of the government to enter and search one’s private property. Think about it: Unlike other crimes, drug offenses do not often have complaining witnesses (i.e.: people who come forward to request police assistance). The parties who use, sell or manufacture drugs are consenting participants who likely wish to hide their drug activity. In order to unearth drug crimes, the police must engage in wiretapping, surveillance, undercover operations, the use of confidential informants, entrapment by offering to buy or sell drugs, and countless other practices that strike at the heart of what the Fourth Amendment is all about.
In the name of the drug war, courts have allowed suspicionless drug testing of wide swaths of students and private employees, and the State of Michigan almost got away with conducting random drug testing of welfare recipients. The incidence of surprise, paramilitary-style raids on people’s homes – and courts’ approval of them – in the name of routine drug policing has skyrocketed in recent years. Similarly, courts have repeatedly given the stamp of approval to the ever-increasing use of police drug dogs to search homes, cars, bags and people. Freedom of Speech: When it comes to speaking out against the government’s drug policy, the right to free speech has also fallen prey to the drug war. In 2007, the U.S. Supreme Court carved out a “drug exception” to one of the most central tenets of free speech jurisprudence: the government cannot discriminate on the basis of the viewpoints being expressed in speech.
In Morse v. Frederick the Court ruled that a student’s speech could be censored at a school-related event (even outside the school), not because it was disruptive or because it provoked imminent lawlessness, but because it contained the word “bong.” The Court drew on other drug-related precedent to find that when it comes to students in the school context (and even students who are near a school, as in this case), the government can make exceptions to free speech rights when it comes to speech about drugs. Freedom of Religion: In a 1990 case brought by Native Americans who use peyote for religious purposes, the U.S. Supreme Court shunned the longstanding rules protecting the free exercise of religion and ruled that all religious practices give way to the general laws of the land – in this case drug laws. In response, Congress passed the Religious Freedom Restoration Act (RFRA) which restored the rights of people to participate in religious activities even when their practices appear to be in tension with other laws.
The U.S. Supreme Court subsequently struck down RFRA protections as applied to state laws so that when state laws and religious practices conflict, the state laws essentially win out. The silver lining, however, is that courts have ruled that RFRA protections remain intact in matters of federal law, such as in the case of Gonzales v. UDV (involving a church’s use of ayuhausca tea as part of its ritual, in conflict with federal drug laws) and Guam v. Guerrero (involving Rastafarians’ religious use of marijuana, in conflict with federal drug laws). Currently, courts are considering the legality of the Church of Cognizance’s religious use of marijuana. Right to Vote: Because the laws of many states continue to deny voting rights to those with current or prior felony convictions – many of them for drug offenses – an entire class of citizens has been shut out of the democratic process. To da
The shame and disgrace of the drug war is so evident… Between the Patriot Act and our Drug War policies there is so little left of The Bill Of Rights. We will only be able to honestly claim 2 or 3 of the lesser 10 Amendments for our protection in Bill of Rights. Not enough left to wipe your ass with!