Let’s do a little thought experiment.
Never mind, for the moment, the question of the Drug War’s moral legitimacy. Never mind whether the government has the right to prevent mentally sound grownups from deciding what substances to put in their own bodies, or what substances to buy from and sell to others.
Let’s just consider, as a practical question, what effectively enforcing the drug laws actually requires.
Imagine a government trying to enforce the drug laws, if the common law “search and seizure” protections, found in the Fourth Amendment and analogous provisions of the state constitutions, were enforced according to the plain meaning of their language. That means the government couldn’t use “no reasonable expectation of privacy” exceptions to nullify the Fourth Amendment for the purposes of helicopter infrared snooping or footborne trespassing on people’s land, traffic checkpoints, and drug-sniffing dogs. There would be no more “no knock” warrants. There would be no such thing as roving wiretaps or “Know Your Customer” laws.
Imagine the government trying to enforce the drug laws, if it were held to the plain meaning of the “due process” clause of the Fifth Amendment and analogous state constitutional safeguards. Can you imagine the consternation in police forces, if they had to file criminal charges and secure a conviction from a jury before they could seize your property?
Imagine how hard it would be for government to enforce drug laws, if courts automatically threw out evidence obtained from sting operations and entrapment in which undercover police actively solicited violations of the law.
Imagine how hard it would be to enforce drug laws, if the courts automatically threw out all “evidence” obtained in a manner that violated the alleged spirit of the law. No more evidence — or perjured testimony — obtained by threatening jailhouse snitches or offering them more lenient treatment. There would also be no guilty pleas based on “plea bargain” blackmail enforced by the manufacture of as many obviously spurious charges as possible; like “loser pays” rules in civil suits, this practice has the effect of artificially skewing the incentives so that the underdog has as much as possible to lose, and the big guy has little or nothing to lose. Imagine, as well, the effect of eliminating all the informal harassment and muscling cops do on their turf on a daily basis, to intimidate people into cooperating with them.
Imagine the cumulative effect of all these changes on the Drug War. I think it’s pretty obvious that without all the forms of lawlessness described above, the Drug War would be a dead letter.
And all the things I’ve described should be utterly loathsome and repugnant, to anyone who believes in principles like the due process rights of the accused.
It follows that the Drug War would be a moot point, in a society where the Bill of Rights actually served as a significant restraint on the powers of police and prosecutors, and due process rights of the accused had any real meaning.
Never mind whether the drug laws themselves are compatible with a free society; without the enforcement tools of a virtually unlimited police state, they are unenforceable.
You could have the substantive drug laws of Turkey or Singapore — death penalty and all — and with common law due process and search and seizure rights vigorously enforced, the drug laws would be toothless. The only people ever busted for drug production, sales, possession or use would be the most careless and stupid. Among those smart enough to take the most basic precautions, the risk of getting caught would be infinitesimal and the drug laws held in utter contempt. Every once in a while, some TV show does a “stupid criminals” bit with a news snippet about some brain-damaged hippie who leaves a sack of hash brownies on the steps of the police station, and then responds to a helpful “Lost and Found” ad placed by the cops on the local radio station.
The thing is, if cops were bound by the laws they claimed to enforce, such Darwin Awards fodder would be the only people ever arrested.
If you want the Drug War, you must sacrifice the Bill of Rights and the due process rights of the accused, and submit to a police state in which you have no rights or protections whatsoever. There are no other choices. It’s that simple.
This has broader implications. The market liberal notion of a written constitution as law that the state allegedly must submit to is ultimately just a temporary placeholder for the anarchist understanding of law being able to be derived independently of the state. This creates standards which the state ought to be held accountable to. Such accountability would result in its abolition.
