Vera Verba

December 5th is the anniversary of the ratification of the 21st amendment to the U.S. Constitution which served to repeal the 18th amendment. The 18th amendment, as you probably know, brought the prohibition of Alcohol to the federal level. Previous to the 18th amendment there had been some dry states, but between January 16, 1920 and December 5th, 1933, the United States of America was a dry country.

Prohibition has been called the “Noble Experiment,” and what this experiment demonstrated (pretty convincingly) was a that you just can’t legislate away a product or service while market demand still exists. The basic economics of the equation is that efforts spent on reducing supply just increase the potential rewards for meeting the additional untapped demand.

Every black market supplier you put in jail reduces competition in the field. Every container of product confiscated (or theatrically destroyed for the press) increases the market value. All of this makes it more appealing for new bootleggers to enter the market - to figure out new and better ways to produce and supply the product.

Many people have drawn parallels between this prohibition of alcohol and the current “War on Drugs,” and the George Santayana quote “those who can not remember the past are condemned to repeat it” is often thrown around. And rightly so of course. What is the point of having such a noble (as well as costly) experiment if you don’t learn anything from it?

But what is more interesting to me is how the parallels between early 19th century alcohol prohibition and modern scheduled drug prohibition highlight the disappearance of our constitutional rights. If I were a “glass half full” or “every cloud has a silver lining” type, I might say that the similarities between the two situations offers us a lucky opportunity to really take notice of the things that have changed - perhaps even give us some insight that we might never have gleaned had we not all been condemned to repeat this (certainly not as noble the second time around) experiment.

In 1919 it was clearly understood by everyone that the Federal Government could not say “Boo” about what substances you chose to put in your own body, nor what you could buy or sell as long as you were doing business with someone in the same State. That is why a constitutional amendment was required before Congress could pass the Volstead act and prohibit alcohol sale and consumption.

It’s also why, when that amendment was repealed, it was understood that these laws were no longer constitutional. Prohibition stopped being enforced immediately, without the need for a test case to go to the Supreme Court to overturn the law. That is how clearly it was understood by everyone that the constitution protected us from laws regulating what we choose to eat, drink, snort or inject directly into our veins.

Today almost none of the people who understood this are alive - and somehow we again have pretty much the exact same sort of prohibition going on.

The constitution must have lost its power to protect us from these sort of laws sometime in the past 75 years. But when did this happen? Our government is built on the concept that we extend it power only by our consent - and that we can only lose constitutional protections by our consent. The only mechanism the Constitution provides by which our constitutional rights can be reduced (or increased) is the passing of a new amendment by a two thirds majority vote of our representatives.

There have been only six new amendments ratified since the 21st amendment returned to us our constitutional protection against prohibition type laws. They are:

• 22 - Presidential Term Limits
• 23 - Presidential Vote for District of Columbia
• 24 - Poll Taxes Barred
• 25 - Presidential Disability and Succession Rules
• 26 - Voting Age Set to 18
• 27 - Limit on Congressional Pay Increases

None of these has anything to do with prohibition or its like.

So after prohibition was repealed, we were clearly once again constitutionally protected from all substance prohibiting laws. And none of the amendments passed since then have removed that protection. And passing such an amendment is the only constitutionally valid way for us to lose such protections from our own government. Logic would then dictate that all such laws MUST still be unconstitutional.

How then is it that this is not the current understanding of our politicians, our police, and our courts?

The mechanism by which we have been slowly stripped of our constitutional rights without our consent is based on the Supreme Courts power of judicial review. As you may already know, the Supreme Court claims the right to interpret the language of the constitution, and there is no control on this power. They can re-interpret the constitution to mean whatever they choose. Interestingly, this is not a power that the Constitution grants to the Supreme Court, but one that it simply claimed for itself.

The power to interpret the Constitution is not specifically delegated to any branch of the government, and the 10th amendment reserves all such unmentioned powers to the states/people. However, this did not stop Supreme Court Chief Justice John Marshall from claiming in his opinion of the 1803 case Marbury v. Madison that, since courts routinely interpret law, and since the Constitution is the highest law of the land, that the highest court of the land should have the power to interpret it - and that this is what the he interpreted the Constitution to say.

John Marshall’s circular logic bootstrapping of the Supreme Court’s power created a means by which our rights can be removed without our consent. It gets around the difficult to obtain, but constitutionally required, two thirds majority vote by our legislatures. And it has lead to many changes to (almost exclusively reductions of) our Constitutional protections over the past 200 years.

This slowly creeping increase of government power, as the Supreme Court re-interprets the Constitution, prompted David Friedman to write in his excellent book “The Machinery of Freedom”:

It took about 150 years, starting with a Bill of Rights that reserved to the states and the people all powers not explicitly delegated to the federal government, to produce a Supreme Court willing to rule that growing corn to feed to your own hogs is interstate commerce and can be regulated by Congress.

Now, I am not saying that the mechanism by which the Supreme Court decides cases and interprets the constitution is necessarily a bad one. There has to be some mechanism by which unconstitutional laws can be struck down. However, each majority opinion that is handed down has, in theory, the power to change our country and affect our rights as much as any constitutional amendment. Therefore, I believe that the people should ( and are even constitutionally entitled to) have a greater voice in these decisions.

This problem of the Supreme Court re-interpreting our rights away is further exacerbated by the ever growing willingness for our congress to pass (and the executive branch to enforce) laws that they all know are unconstitutional. There is no down side for them to do this. Even if the Supreme court agrees to hear a relevant case, the law will still be enforced for many years before it can be struck down, and can theoretically just be passed again in a slightly different form. Additionally, every unconstitutional law passed is a chance for congress to play the power lottery - the Supreme Court might just re-interpret the constitution, allowing the law to stand and thus increasing congressional power.

So how do we correct this problem? How do we reclaim the power to control our constitutional protections? How do we prevent congress from deliberately passing laws to test just how far the current Supreme Court will allow constitution can be bent?

One solution might be a new amendment to the Constitution to add “checks and balances” limiting this otherwise unlimited power to re-interpret the Constitution. It would assert our right to be involved in any change to the Constitution, and it would spell out a punishment for those who would attempt to take away our rights without following the correct procedure for amending the Constitution. It might read something like this:

1. No supreme court decision shall be considered valid until it can first put to a vote by the state legislatures.

2. Votes may be cast for any opinion generated by the court. A simple majority of states is required to ratify the courts majority/plurality opinion. A two thirds majority of states is required to ratify a minority opinion. State legislatures that fail to put the matter to a vote in their next session immediately after the courts decision shall be counted as abstaining.

3. If no court opinion is ratified, the court must decide to either return to deliberations and issue new (or the same) opinions, or let the matter rest as if they had never chosen to hear the case.

4. U.S. Congressmen will receive a sentence of 1 year in a federal correctional facility for each yes vote that was recorded on a law that is subsequently struck down as unconstitutional by supreme court decision.

(Please Note that I have no rigorously logical reason to believe that the specific amendment I am suggesting here would do the job - I just know that some mechanism giving people back the control the Constitution promised us over guarding our own rights is sorely needed. Without some solution to this problem, things seem very likely to just continue to get worse.)

So what do you think? Does this amendment solve all our problems?

Maybe it will sound better after you’ve had a few drinks…

Go ahead… Drink up… it’s still legal.