Is Drug Prohibition Constitutional?

By Jason Rink

At the recent South Carolina Republican debate, Chris Wallace asked Ron Paul how he expected to win the votes of social conservatives by supporting the legalization of all drugs, including heroin. Certainly, that isn’t a position you will find many Republicans endorsing these days. Paul’s answer was not only the funniest moment of the event, it was also the most instructive moment.


Here’s the bottom line: the Federal Government does not have the authority to pass laws regarding non-violent personal habits. If such laws were to be enacted, it would have to be done at the State level.

I believe that Congressman Paul is the most qualified candidate to speak on the issue of drugs and drug legalization. First, he is a doctor. He has prescribed medication many times since his days as a flight surgeon in the Air Force. He has also testified in the past that, personally, he doesn’t think drug use and abuse is a particularly healthy lifestyle choice:

…the federal war on drugs has proven costly and ineffective, while creating terrible violent crime. But if you question policy, you are accused of being pro-drug. That is preposterous. As a physician, father, and grandfather, I abhor drugs. I just know that there is a better way — through local laws, communities, churches, and families — to combat the very serious problem of drug abuse than a massive federal-government bureaucracy.”

He simply believes it is not compatible with liberty to make criminals out of those who choose that lifestyle.

Second, Ron Paul’s record shows that he has a better grasp of the concept of Federalism and the Constitution than any other Congressman currently in office. He has earned the title Dr. No because very little legislation passes his strict Constitutional test. It’s a simple one, really: Is the proposed legislation based on powers specifically granted to the Federal Government in the U. S. Constitution? Federal drug prohibition does not pass that test.

So, what is it about the drug decriminalization that gets social conservatives so hysterical? Is Ron Paul right about the Drug Prohibition, or is he simply “smoking something?”

According to the Constitution, legislation regarding drug use and abuse is a State level issue. The issue is not addressed specifically in the text of the U.S. Constitution, so it falls under the broad umbrella of powers that our Founders “left to the States and the people” in the 10th Amendment.

Alcohol prohibition in the United States from 1919 to 1933 was supported by an actual constitutional amendment. Drug prohibition is not. This is an important point because, unless something has drastically changed, drug prohibition would also require a Constitutional Amendment, ratified by the States, to have any semblance of legitimacy. Drug prohibition is simply a federal power grab. It’s an end-run around the Constitutional Amendment process because such an amendment would never pass. So, while social conservatives may believe that it is perfectly reasonable for the Federal Government to impose harsh criminal penalties on what free citizens can put in their own bodies, our Founders clearly disagreed.

Ron Paul also made the point that granting the Federal Government the right to legislate what free people can and cannot put into their bodies when it comes to drug use would also give the Federal Government the right to tell us what we can and cannot eat, drink, or otherwise consume. So, the same Conservatives who decry Michelle Obama’s War on Trans-Fat unwittingly support such Nanny-State legislation by endorsing the War on Drugs.

The truth is, most people would love to outlaw all of the habits, opinions, and practices they find offensive in others. However, that would not be freedom. In the end, drug prohibition simply reveals most social conservatives to be no different than the liberal statists they oppose. If they were truly interested in preserving personal freedom and the Constitutional limitations the Founders imposed on the Federal Government, they would demand an immediate end to the unconstitutional, and failed, policy of federal Drug Prohibition.

Jason Rink is the Editor-in-Chief of The Liberty Voice. Executive Director of the Foundation for a Free Society. He is the producer and director of Nullification: The Rightful Remedy, and the author of “Ron Paul: Father of the Tea Party” the biography of Congressman Ron Paul. See more of his work at his writing at and his film production work at

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