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This is your Bill of Rights...on Drugs

Anjuli Verma,
Drug Law Reform Project
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September 17, 2008

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 date, an estimated 5 million Americans have lost their fundamental right to vote, and in 11 states you can be barred from voting for life.

These are just a few of the “drug exceptions” to the Constitution. To learn more about how our basic rights as Americans have been compromised in the context of the drug war, check out the excellent article, “This Is Your Bill of Rights, On Drugs,” by the director of the ACLU Drug Law Reform Project, Graham Boyd, and writer Jack Hitt.

If you think the original drafters of the Constitution would be rolling over in their graves about now, you’re probably right. While it’s unlikely, in a time before the existence of heat-sensing surveillance, wiretapping and drug testing technologies, that they could have imagined the kind of power our government would someday have over our private lives, the drafters did include important, explicit rights in the Constitution and the Bill of Rights meant to shield individuals from just the kind of insidious government overreach we have sadly seen come to pass in recent years.

Constitution Day reminds us that all the good words written on a piece of paper (which, as some historians have suggested, may have even been made from industrial hemp, which is made of marijuana, now an illegal, Schedule I drug) don’t mean a thing unless today’s judges and policymakers interpret and enforce the rights that they accord to us all. This makes our role as the people to whom policymakers and elected officials are accountable all the more critical.

Let’s hope that public views on civil liberties and the drug war have changed since 1989 when 62 percent of us said that we’d accept a “drug exception” to the Constitution. There’s good reason to think the tide is shifting. Polls consistently show that a strong majority of Americans think the drug war is a failure and that resources should be shifted away from arrest, prosecution and prison and toward treatment and education. But the fact remains that the United States remains the world’s largest jailer of drug offenders, disenfranchises an entire class of people with drug convictions and even denies educational funding to would-be students with drug convictions.

If history is any lesson, our constitutional rights will continue to slip away in the name of the drug war unless we fight to keep them. Here’s to keeping up the fight. Happy Constitution Day!

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