Policy Analysis No. 180

A Society of Suspects: The War on Drugs and Civil Liberties

By Steven Wisotsky
October 2, 1992

Executive Summary

Every friend of freedom … must be as revolted as I am by the prospect of turning the U.S. into an armed camp, by the vision of jails filled with casual drug users and of an army of enforcers empowered to invade the liberty of citizens on slight evidence.

— Milton Friedman[1]

On December 15, 1991, America celebrated the 200th anniversary of the Bill of Rights. On October 2, 1992, we mark the 10th anniversary of an antithetical undertaking—the War on Drugs, declared by President Reagan in 1982[2] and aggressively escalated by President Bush in 1989.[3] This country’s Founders would be disappointed with what we have done to their legacy of liberty: The War on Drugs, by its very nature, is a war on the Bill of Rights.

When the Founders rebelled against British tyranny, they grounded their cause in a belief in the natural rights of the individual and the Enlightenment ideas of progress through reason. Understanding the dangers of an excessive concentration of political power, they divided and limited the reach of that power through a federal structure with the states, the separation of powers among the three branches, and the guarantees of personal freedom in the Constitution itself and in the Bill of Rights.

With the War on Drugs, however, the wisdom of the Founders has been cast aside. In their shortsighted zeal to create a “Drug-Free America” by 1995,[4] our political leaders—state and federal, elected and appointed—have acted as though the end justifies the means, repudiating our heritage of limited government and individual freedoms while endowing the bureaucratic state with unprecedented powers.

That the danger to our freedom is real and not just a case of crying wolf is confirmed by the warnings of a few judges, liberals and conservatives alike, who, insulated from elective politics, have the independence to be critical. Supreme Court Justice Antonin Scalia, for example, denounced compulsory urinalysis of Customs Service employees “in the front line” of the War on Drugs as an “invasion of their privacy and an affront to their dignity.”[5] In another case, Justice John Paul Stevens lamented that “this Court has become a loyal foot soldier” in the War on Drugs.[6] For his part, Justice Thurgood Marshall was moved to remind the Court that there is “no drug exception” to the Constitution.[7]

But these have been futile dissents. In a rare majority opinion, the Court of Appeals for the Ninth Circuit declared that

[t]he drug crisis does not license the aggrandizement of governmental power in lieu of civil liberties. Despite the devastation wrought by drug trafficking in communities nationwide, we cannot suspend the precious rights guaranteed by the Constitution in an effort to fight the “War on Drugs.”[8]

In that observation, the court echoed a ringing dissent of the chief justice of the Florida Supreme Court:

If the zeal to eliminate drugs leads this state and nation to forsake its ancient heritage of constitutional liberty, then we will have suffered a far greater injury than drugs ever inflict upon us. Drugs injure some of us. The loss of liberty injures us all.[9]

Unfortunately, those warnings are cries in the wilderness, unable to stop the relentless buildup of law enforcement authority at every level of government. In fact, the trend toward greater police powers has only accelerated; one summary of the Supreme Court’s 1990-91 term observed that its criminal law decisions “mark the beginning of significant change in the relationship between the citizens of this country and its police.”[10]

Despite such warnings, most Americans have yet to appreciate that the War on Drugs is necessarily a war on the rights of all of us. It could not be otherwise, for it is directed not against inanimate drugs but against people—those who are suspected of using, dealing in, or otherwise being involved with illegal drugs. Because the drug industry arises from the voluntary transactions of tens of millions of people—all of whom try to keep their actions secret—the aggressive law enforcement schemes that constitute the war must aim at penetrating the private lives of those millions. And because nearly anyone may be a drug user or seller of drugs or an aider and abettor of the drug industry, virtually everyone has become a suspect. All must be observed, checked, screened, tested, and admonished—the guilty and innocent alike.

The tragic irony is that while the War on Drugs has failed completely to halt the influx of cocaine and heroin, both of which are cheaper, purer, and more abundant than ever,[11] the one success it can claim is in curtailing the liberty and privacy of the American people. In just 10 years, Americans have suffered a marked reduction in their freedoms in ways both obvious and subtle.

Among the grossest of indicators is that the war leads to the arrest of an estimated 1.2 million suspected drug offenders each year, most for simple possession or petty sale.[12] Because both arrest rates and incarceration rates rose for drug offenders throughout the 1980s, the war has succeeded dramatically in increasing[13] our full-time prison population. That has doubled since 1982 to more than 800,000,[14] giving the United States the highest rate of incarceration in the industrialized world.[15]

For those not behind bars, it is now established that law enforcement officials—now joined by the military forces of the United States—have the power, with few limits, to snoop, sniff, survey, and detain, without warrant or probable cause, in the war against drug trafficking. Property may be seized on slight evidence and forfeited to the state or federal government without proof of the personal guilt of the owner.[16] Finally, to leverage its power, an increasingly imperial federal government has applied intimidating pressures to shop owners and others in the private sector to help implement federal drug policy.[17]

Ironically, and tragically, just as the winds of freedom are blowing throughout central and eastern Europe, most Americans and most American politicians say that the solution to “the drug problem” is more repression—and the Bill of Rights be damned. As Peter Rodino, former chairman of the House Judiciary Committee, said in expressing his anger at the excesses of the Anti-Drug Abuse Act of 1986, “We have been fighting the war on drugs, but now it seems to me the attack is on the Constitution of the United States.”[18]

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Steven Wisotsky is a professor of law at Nova University, in Fort Lauderdale, Florida, and is the author of many studies on drug law and policy including Beyond the War on Drugs (1990). He is also a member of the advisory board of the Drug Policy Foundation in Washington, D.C.