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The latest ruse of some conservatives to garner the sympathy, support, and votes of libertarians is to declare that they are “constitutionalists.” Although they are sometimes referred to as “libertarians” in the media, sometimes even portray themselves as “libertarian-leaning,” and get ecstatic when real libertarians describe them as “liberty-minded,” these conservative “constitutionalists” are not only not libertarian, they are not even constitutional.

The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government. As James Madison succinctly explained in Federalist No. 45:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

In article I, section 8, of the Constitution, there are eighteen paragraphs that enumerate the limited powers granted to Congress. Everything else is reserved to the states—even without the Tenth Amendment. Four of them concern taxes and money. One concerns commerce. One concerns naturalization and bankruptcies. One concerns post offices and post roads. One concerns copyrights and patents. One concerns federal courts. One concerns maritime crimes. Six concern the military and the militia. Once concerns the governance of the District of Columbia. And the last one gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

One can search the Constitution morning, noon, and night with an electron microscope, x-ray vision, and night-vision goggles and never see a reference to the national government having the power to identify drugs, regulate drugs, classify drugs, set up a Drug Enforcement Administration, outlaw drugs, pass a single law related to drugs, or have anything whatsoever to do with any drugs.

Any drugs, whether they are stimulants, hallucinogens, or sedatives. Any drugs, whether they are opiates, cocaine, or cannabis. Any drugs, no matter how unhealthy, harmful, or immoral. Any drugs, no matter how addictive, potent, or dangerous. Any drugs, whether they are smoked, snorted, or injected. Any drugs, whether they are used for medical, therapeutic, or recreational purposes.

So why do constitutionalists support the drug war?

The federal government’s war on drugs is a monstrous evil that has ruined more lives than drugs themselves. The drug war has failed to prevent drug abuse, end drug overdoses, reduce drug use, or keep drugs away from teenagers. Instead, it has fostered violence, unnecessarily swelled prison populations, clogged the judicial system, corrupted law enforcement, hindered legitimate pain treatment, destroyed personal and financial privacy, violated civil liberties, and made criminals out of mostly otherwise law-abiding Americans. The war on drugs is truly a war on individual liberty, private property, personal responsibility, and a free society.

For the moral and philosophical case against the drug war, see my book The War on Drugs Is a War on Freedom. But aside from this, and aside from every negative thing I mentioned above about the drug war, what is most relevant here is that the war on drugs is a war on the Constitution, limited government, the free market, and federalism—things that constitutionalists claim to hold dear.

This is because the Constitution not only doesn’t mention drugs, it nowhere authorizes the federal government to regulate, monitor, or restrict the consumption, medical, or recreational habits of Americans. This is why when the Progressives a hundred years ago wanted to ban alcohol on the national level, they realized that an amendment to the Constitution was needed.

Constitutionalists claim to revere the Constitution. They say they adhere to the Constitution. They lambaste “activist” judges for not being strict constitutionalists. They criticize those who speak of a “living Constitution.” They talk about following the original intent or original meaning of the Constitution.

But Constitutionalists are hypocrites and enemies of the Constitution if they support the drug war. All of their talk about the Constitution is merely hot air. Just like when Republicans say in their platform that they are “the party of the Constitution.” And just like when conservatives awarded former Secretary of Defense Donald Rumsfeld the “Defender of the Constitution Award” at one of their Conservative Political Action Conferences.

A real constitutionalist would not support the federal government having an Office of National Drug Control Policy, a Drug Enforcement Administration, or a Substance Abuse and Mental Health Services Administration. A real constitutionalist would not support legislation like the Controlled Substances Act, the Comprehensive Drug Abuse Prevention and Control Act, or the Combat Methamphetamine Epidemic Act. A real constitutionalist would not support the federal government having a National Drug Control Strategy, a National Survey on Drug Use and Health, or a Domestic Cannabis Eradication/Suppression Program.

A real constitutionalist would support the Constitution instead of the drug war.

Originally published on LewRockwell.com.

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Feb
17

Hard Questions on the Drug War

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As I have maintained in all of my articles on the drug war, the war on drugs is a monstrous evil that has ruined more lives than drugs themselves. The war on drugs is really just a war on individual liberty, private property, civil liberties, financial privacy, personal responsibility, the free market, a free society, and freedom itself.

Take the case of Jesse Webster, 46, a former cocaine dealer from Chicago who was sentenced to life in prison in 1996 for “participating in a drug conspiracy and filing false tax returns.”

Webster turned himself in 1995 when he learned that the police were looking for him. Because he refused to become a confidential informant, he was denied leniency and sentenced to life in prison without parole for a nonviolent first offense.

For a sentence like that, Webster said, “I thought I’d have to hurt somebody, do bodily harm.”

The A.C.L.U. “estimates that more than 2,000 federal inmates are serving life without parole for nonviolent offenses.” Like James Romans, someone who is serving a life sentence for selling marijuana. Even worse, “in a sample study of 169 federal inmates incarcerated for nonviolent crimes,” the A.C.L.U. “found dozens who were first-time offenders, as well as many others who had only misdemeanors and juvenile infractions in their past.” And that doesn’t even take into account the state prison population.

Although Webster now shares a 65 square-foot cell in a medium security prison in Southern Illinois, he spent 16 years in maximum security prisons—including Leavenworth—with murderers and rapists; that is, people who committed actual crimes.

“I should have done time,” Mr. Webster said. “But a living death sentence?” “A commutation of sentence which would result in his service of 20 or so years in prison is enough punishment for his crimes,” wrote Judge Zagel (the judge who sentenced him under the harsh sentencing guidelines of the day) to the Office of the Pardon Attorney of the Justice Department.

No, Mr. Webster, you should not have done time—any time. And no, Mr. Zagel, 20 years is not enough punishment—it is 20 years too many. This is one prisoner serving time in federal prison who should be released immediately. But not because the sentence was too harsh, not because it was a nonviolent offense, not because it was his first offense, not because he only received three minor infractions in prison, not because his last infraction was in 1997, not because he earned in prison the trusted position of captain’s orderly, not because he has kept in contact with his mother, not because his mother is ill, not because he has seen his granddaughter only once, not because he got religion, not because he has been reformed, not because he has been rehabilitated, and not because we should feel sorry for him.

As much as we may not like the personal habits of cocaine users and the chosen profession of cocaine dealers, in a free society the government has no business regulating, interfering with, or prohibiting the free and voluntary exchange of any substance. The very fact that we have a war on drugs means that we don’t have a free society.

My thoughts on the evils of the drug war are contained in my book The War on Drugs Is a War on Freedom and the other articles on the subject that I have written since the book was published in September of 2012.

What I do want to address here is a sincere question from a reader that I received in response to a short blog post I did a month or so ago about the case of Jesse Webster. Like any good libertarian, my reader’s initial reaction was that “there was no crime committed, since neither drug dealing nor tax evasion actually has a victim.” However, a family member of his raised a hypothetical scenario that I’m sure others have broached in the past:

What if he had sold drugs to a 12 year old and that 12 year old died from an overdose?  Would the sentence have still been unjustified?

My short answer is yes. My longer answer is this:

Even if it be acknowledged that someone might justifiably be sentenced to life in prison without parole because he sold drugs to a 12 year old and that 12 year old died from an overdose, that is still no argument for the drug war. It is rather an argument for punishing those who contribute to the death of a minor. What if instead of a 12 year old someone sold drugs to a 52 year old and that 52 year old died from an overdose? Would anyone recommend a sentence of life in prison without parole? Would anyone recommend a sentence at all? The issue here is the legal distinction between minors and adults as it relates to crime and punishment. This I leave to libertarian legal theorists.

Not in any particular order, here are some additional thoughts on the matter.

1. There are some hard questions on the drug war, usually regarding drugs and children. Questions of this nature should immediately raise a red flag because invoking “the children” is a standard tactic of the Left when seeking to justify gun control, WIC, food stamps, Head Start, Medicaid, etc. Much evil has been done by government in the name of child safety and child protection.

2. Just because libertarians oppose the war on drugs and support a free market in all drugs doesn’t mean that they believe it would be a good thing for anyone to use drugs, that they are indifferent to or unconcerned about the dangers of drugs in the hands of children, or that they are naïve about the potentially negative consequences of drug abuse.

3. If drugs were legal, I think it is fair to assume that governments would treat them like tobacco and alcohol; that is, it would be illegal for minors to possess them and for people to sell them to minors.

4. Has the war on drugs prevented drug dealers from selling drugs to 12 year olds? Of course it hasn’t.

5. The question of the legality of any or all drugs is purely a state matter. Even if someone thought that the states should wage war on drugs (I don’t), they would have to at least acknowledge that the federal government has no authority whatsoever under the Constitution to incarcerate anyone for selling drugs to anyone, including children.

6. What if someone sold a nail gun or a gallon of bleach to a 12 year old and that 12 year old died from misusing either product? Would a sentence of life in prison without parole be justified? If not, then why should the sale of certain drugs be treated differently? Just because the government has declared that certain drugs are illegal while nail guns and bleach are legal?

7. It has been estimated that 7,600 Americans die every year from non-steroidal anti-inflammatory drugs such as aspirin. Should someone who sells (or gives) aspirin to a 12 year old and that 12 year old dies from an overdose be locked up for life without the possibility of parole? Would anyone but the emotionally distraught parent of the dead child even think of such a thing?

8. A 12 year old certainly bears some responsibility for buying drugs and overdosing on drugs. The question did not concern someone forcing a 12 year old to take drugs or tricking him into doing so. And neither did the question concern selling drugs to a 2 year old or a 12 year old with the mental capacity of a 2 year old.

9. The parents of a 12 year old who buys drugs and overdoses on drugs may bear some responsibility if they never bothered to warn their 12 year old about buying or taking anything from strangers. And even if the seller was a family friend, the parents still may bear some responsibility if they never warned their 12 year old about the dangers of drugs.

10. Drug dealers, like any “normal” businessmen, want repeat business, not dead customers.

11. Being a drug dealer doesn’t necessarily mean that one is so stupid and/or evil that he would sell drugs to a 12 year old.

12. Would a 12 year old be able to come up with enough money to buy enough of a drug to overdose?

Neither I nor any other libertarian professes to have all the “right” or “libertarian” answers to every question raised about the drug war. One thing is for sure: The world is full of dangerous items and substances, but it is the job of individuals, families, churches, consumer groups, and concerned organizations to keep Americans from using or abusing them—not the government.

Originally published on LewRockwell.com.

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Oct
24

Mises Explains the Drug War

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cannabisAir travelers were outraged when the FAA announced that there would be flight delays because air-traffic controllers had to take furloughs as a result of sequester budget cuts. But there is another federal agency whose budget cuts Americans should be cheering — the Drug Enforcement Administration.

According to the Office of Management and Budget’s report to Congress on the effects of sequestration, the DEA will lose $166 million from its $2.02 billion budget. Other agencies that are part of the expansive federal drug war apparatus are getting their drug-fighting budgets cut as well.

These cuts, no matter how small they may actually end up being, are certainly a good thing since over 1.5 million Americans are arrested on drug charges every year, with almost half of those arrests just for marijuana possession.

Although 18 states have legalized medical marijuana, seven states have decriminalized the possession of certain amounts of marijuana, and Colorado and Washington have legalized marijuana for recreational use. In the majority of the 50 states, possession of even a small amount of marijuana can still result in jail time, probation terms, or fines. The federal government still classifies marijuana as a Schedule I controlled substance under the Controlled Substances Act, with a high potential for abuse and with no acceptable medical use.

Since the federal government has not followed its own Constitution, which nowhere authorizes the federal government to ban drugs or other any substance, it is no surprise that it has not followed the judgment of Ludwig von Mises when it comes to the drug war.

The war on drugs is a failure. It has failed to prevent drug abuse. It has failed to keep drugs out of the hands of addicts. It has failed to keep drugs away from teenagers. It has failed to reduce the demand for drugs. It has failed to stop the violence associated with drug trafficking. It has failed to help drug addicts get treatment. It has failed to have an impact on the use or availability of most drugs in the United States.

None of this means that there is necessarily anything good about illicit drugs, but as Mises explains “It is an established fact that alcoholism, cocainism, and morphinism are deadly enemies of life, of health, and of the capacity for work and enjoyment; and a utilitarian must therefore consider them as vices.” But, as Mises contends, the fact that something is a vice is no reason for suppression by way of commercial prohibitions, “nor is it by any means evident that such intervention on the part of a government is really capable of suppressing them or that, even if this end could be attained, it might not therewith open up a Pandora’s box of other dangers, no less mischievous than alcoholism and morphinism.”

The other mischievous dangers of the drug war that have been let loose are legion. The war on drugs has clogged the judicial system, unnecessarily swelled prison populations, fostered violence, corrupted law enforcement, eroded civil liberties, destroyed financial privacy, encouraged illegal searches and seizures, ruined countless lives, wasted hundreds of billions of taxpayer dollars, hindered legitimate pain treatment, turned law-abiding people into criminals, and unreasonably inconvenienced retail shopping. The costs of drug prohibition far outweigh any possible benefits.

Vance, LaurenceBut that’s not all, for once the government assumes control over what one can and can’t put into his mouth, nose, or veins or regulates the circumstances under which one can lawfully introduce something into his body, there is no limit to its power and no stopping its reach. Again, as Mises makes clear “[o]pium and morphine are certainly dangerous, habit-forming drugs. But once the principle is admitted that it is the duty of government to protect the individual against his own foolishness, no serious objections can be advanced against further encroachments.”

“As soon as we surrender the principle that the state should not interfere in any questions touching on the individual’s mode of life,” Mises goes on, “we end by regulating and restricting the latter down to the smallest detail.”

Mises tells us exactly what the slippery slope of drug prohibition leads to. He asks why what is valid for morphine and cocaine should not be valid for nicotine and caffeine. Indeed: “Why should not the state generally prescribe which foods may be indulged in and which must be avoided because they are injurious?” But it gets worse, for “if one abolishes man’s freedom to determine his own consumption, one takes all freedoms away.”

“Why limit the government’s benevolent providence to the protection of the individual’s body only?” Mises asks. “Is not the harm a man can inflict on his mind and soul even more disastrous than any bodily evils? Why not prevent him from reading bad books and seeing bad plays, from looking at bad paintings and statues and from hearing bad music?”

When it comes to bad habits, vices, and immoral behavior of others, in contrast to the state, which does everything by “compulsion and the application of force,” Mises considered tolerance and persuasion to be the rules.

“A free man must be able to endure it when his fellow men act and live otherwise than he considers proper,” Mises explains. “He must free himself from the habit, just as soon as something does not please him, of calling for the police.”

For Mises, there is one path to social reform, and “[h]e who wants to reform his countrymen must take recourse to persuasion. This alone is the democratic way of bringing about changes. If a man fails in his endeavors to convince other people of the soundness of his ideas,” Mises concludes, “he should blame his own disabilities. He should not ask for a law, that is, for compulsion and coercion by the police.”

In a free society, it couldn’t be any other way.

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Aug
08

Sow It Everywhere

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Review of Martin A. Lee, Smoke Signals: A Social History of Marijuana—Medical, Recreational, and Scientific (Scribner, 2012), vii + 519 pgs., hardcover.

Although I don’t use marijuana for medical, recreational, or scientific purposes, I highly recommend this book to every reader no matter how he wants to use or not use marijuana or what he thinks about the ethics and morality of marijuana use and the medical effectiveness and therapeutic benefits of marijuana.

I know that I am putting things backward. A reviewer’s endorsement of a book is usually implied during the course of a review and certainly stated in no uncertain terms at the end of the review. But this book is so good, so important, and so necessary that I am stating right up front that if you never read anything ever again about the war on drugs, including my book, The War on Drugs Is a War on Freedom, or anything I have written about the federal war on marijuana or hemp, and even including the rest of this review, this is the one book that you must read. It is the most important book ever written about marijuana.

Although it is a well-written and engaging book, Smoke Signals is not an easy read. First of all, it is over 500 pages. Even not counting the index, acknowledgments, notes, bibliography, and appendices, it is still over 400 pages. You will not read this book in an afternoon. Because of so many other reading and writing commitments, I actually read the book over the course of many months. But I assure you that it will be worth the time you put into reading it. The second reason it is not an easy read is because, for all but the most intransigent liberal or conservative statist, the reader will early on find the federal war on drugs, and especially marijuana, to be so bizarre, unnecessary, so perplexing, so asinine, and so evil that it is sometimes hard to keep reading without slamming the book shut and pulling out your hair. Read More→

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Review of Mark A. R. Kleiman, Jonathan P. Caulkins, and Angela Hawken, Drugs and Drug Policy: What Everyone Needs to Know (Oxford: Oxford University Press, 2011), xxi + 234 pgs., paperback, $16.95; and Jonathan P. Caulkins, Angela Hawken, Beau Kilmer, and Mark A. R. Kleiman, Marijuana Legalization: What Everyone Needs to Know (Oxford: Oxford University Press, 2012), xx + 266 pgs., paperback, $16.95.

These two books are part of a series by Oxford University Press called What Everyone Needs to Know. There are currently twenty-six books in this series. The books are written in a question-and-answer format. Obviously, with titles like Invasive Species, Pandemics, and Overfishing, not every book in the series is of interest to libertarians. But aside from Libertarianism: What Everyone Needs to Know (reviewed by David Gordon here), these two books on the drug war are the two titles that libertarians would be the most interested in.

The three common authors of these books are all academics at major universities. Beau Kilmer is co-director of the RAND Drug Policy Research Center. The marijuana book also includes an additional author, Christina Farber, for one chapter.

Drugs and Drug Policy contains 10 chapters with between 9 and 23 questions per chapter. The book also contains acknowledgments, an introduction, a conclusion on "what is to be done?" that is not in a question-and-answer format, an appendix on "how drugs work in the brain" with eight questions and answers, a bibliography, and an index. Each chapter concludes with recommendations for additional reading. There are no footnotes.

Drugs and Drug Policy "includes facts about drugs and drug-related behavior, pharmacology, prohibitions, regulations, and taxes, and how drug enforcement, drug prevention, and drug treatment work, along with their characteristic problems and limitations."

Marijuana Legalization is divided into 2 parts with a total of 16 chapters with between 5 and 17 questions per chapter. The book contains acknowledgments, an introduction, a concluding chapter not in a question-and-answer format that gives the author’s opinions about marijuana legalization, a bibliography, and an index. Each chapter except the last concludes with recommendations for additional reading. There are no footnotes.

Marijuana Legalization is "not intended to persuade" the reader of any particular answers to questions about marijuana legalization and use. The authors "hope to provide both sets of advocates with material for an honest and logically coherent debate, and give people who have not yet made up their minds the raw material needed to develop informed opinions."

Due to their question-and-answer format and skillful manner of explaining technical information, both books are extremely readable. And in spite of the brevity (in a good way) of the answers, the books are very thorough. Although I disagree with the authors’ conclusions, I recommend both books for the information they provide about drugs and the drug war.

What I want to focus on are those parts of these books that relate to drug legalization, drug decriminalization, and drug freedom.

In Drugs and Drug Policy, that would mainly be chapter 2, "Why Have Drug Laws?" and the conclusion, "What Is to Be Done?" In Marijuana Legalization, that would mainly be most of the chapters in part 2, "Legalization and Its Consequences," and the concluding chapter, "What Do the Authors Think about Marijuana Legalization?"

In Drugs and Drug Policy, the authors point out that alcohol and tobacco "far exceed all the illicit drugs combined in the number of problem users and the resulting ill health and death." But instead of pointing out the hypocrisy of the war on drugs and calling for full drug legalization, they recommend tripling the tax on alcohol because it would "improve the health and longevity of heavy drinkers" and "protect nondrinkers from drinking-related accidents and violence" and "banning additives and the pre-rolled cigarette" and "requiring that all smoking products be made from strains of tobacco that do not produce the tobacco-specific nitrosamines (TSNs) that create most of the cancer risk." They reject John Stuart Mill’s "harm principle":

That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.

Why? Because "the case for protecting people from themselves – when it can be done at acceptable cost in terms of intrusive enforcement – seems attractive." The authors are utilitarian nanny statists.

In their conclusion, the authors present three lists of policies: a "consensus" list of eleven items they "think might command widespread support," a "pragmatist" list of six items "that could appeal to those prepared to think about drug abuse as a more or less straightforwardly practical problem," and a "political-bridge-too-far" list of six changes "that make good sense to some drug-policy wonks, but that involve departures from current practice and more radical thinking than a prudent politician would endorse."

Obviously, the third list is the most radical. But aside from calling for higher alcohol and cigarette taxes, the authors propose "allowing users to grow their own cannabis, or to form small consumer-owned cooperatives to grow it for them." But "alas," they say, "this approach would yield no tax revenue, which greatly reduces its political appeal."

In Marijuana Legalization, the authors again point out how much more dangerous alcohol and tobacco are than marijuana. They even say:

If we were making laws for a planet whose population had never experienced either marijuana or alcohol, and we had to choose one of the two drugs to make available, there would be a strong case for choosing marijuana, which has lower organic toxicity, lower addictive risk, and a much weaker link with accidents and violence.

But since "that’s not the planet we inhabit," and "alcohol has been an ingrained part of many cultures since the Neolithic revolution," the authors reject treating marijuana as alcohol. "History matters. Custom matters. Practicality matters," say the authors. I guess freedom doesn’t matter.

In the book’s final chapter, "What Do the Authors Think about Marijuana Legalization?," drug freedom is not in their thoughts.

Angela Hawken says: "Existing policies suit me well." But then she goes on to say that she thinks "it’s pretty clear that the cost-benefit balance is in favor of loosening the reins on marijuana." She deems it "worthwhile to experiment with legalization" of marijuana, although she is "concerned with the exploitation of medical-marijuana laws." Hawken also calls for raising taxes on alcohol and restricting its advertising.

Jonathan Caulkins says he would "vote against legalizing marijuana." He prefers reforms and "middle path" options. He is worried about "the children of dependent users." He claims to "generally agree with libertarian notions of letting people harm themselves if that’s what they choose," but "only to a point."

Mark Kleiman posits six options: current policy, decriminalization of use but not production and distribution, permission to use, grow, and give away marijuana, but not to grow or sell it professionally, legalization without commercialization that allows home production and small cooperatives, commercialization with high taxes and tight restrictions, and commercialization on the alcohol model. Missing, of course, is the drug freedom option. Kleiman’s first choice of what he would like to see happen is "permission for production and use through small not-for-profit cooperatives, with a ban on commerce."

Beau Kilmer doesn’t "see much difference between alcohol and marijuana when adults use either in moderation." He has "serious concerns about our current marijuana policies." Although his "thoughts about marijuana policy continue to evolve," if he were "approached for advice by a policymaker who represented a constituency seeking significant changes in their marijuana policies," he advises the incorporation of a "sunset provision" to whatever is decided and rejects legalization because "it is risky to implement the most extreme alternative to prohibition."

Both Drugs and Drug Policy and Marijuana Legalization suffer from the same problems.

There is little attention paid to the views of principled libertarians who argue for absolute drug freedom for freedom’s sake.

There are no references to important works such as Our Right to Drugs: The Case for a Free Market, by psychiatrist Thomas Szasz, or The Economics of Prohibition, by economist Mark Thornton.

The authors take it for granted that the federal government should have a drug policy. Churches may want to have a drug policy. Families may want to have a drug policy. Businesses may want to have a drug policy. Sports teams may want to have a drug policy. Fraternal organizations may want to have a drug policy. But it is not the concern of the federal government to solve drug use problems or ensure that there aren’t any drug abuse problems.

The authors take it for granted that the federal government has the authority to ban substances it deems to be harmful, dangerous, or immoral. But as anyone who has read the Constitution even once can see, the federal government has no such authority.

The main problem, of course, is that real and absolute drug freedom isn’t even presented as a viable option.

So, as I said earlier, although I disagree with the authors’ conclusions, I recommend both books for the information they provide about drugs and the drug war.

And that, in this reviewer’s opinion, is what every libertarian needs to know about these two books on the drug war.

Originally posted on LewRockwell.com on February 6th, 2013.

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