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Freedom, Complexity, and Irony

By Gordon Francis Corbett

    We do what works;  we avoid what hurts;  we learn to tell the difference.  Since our ancestors left the Olduvai Gorge, this process has, however unevenly, guided our progress and let us create the wonders we see today.

    None comes from that perverse and puzzling category we call, "vice."  Vice is perverse, because its products and services hurt its patrons;  it is puzzling, because, despite that damage, those patrons usually continue to buy them.

    Consider one vice: "recreational" drugs.  Before 1914, people saw what these drugs did.  Mothers walking with their children would tell their children that the peculiar odor they smelled came from opium dens, and point to people lying in the gutter.  They would warn their wayward children that if they did not change their ways, they would end up in an opium den or, literally, in the gutter.

    This situation did not last.  Congress's 1914 Harrison Act shrank drug use, but only temporarily.  Addicts continued to buy drugs and to recruit new addicts, but at much reduced levels.

    Then, more than five decades later, we had the "Summer of Love," comprising promiscuous sex, bad art, and rampant drug use, stimulated by certain kinds of rock music.  Partly because almost nobody still lived who could have told these young people what drugs did, a great many tried them.  Today, we struggle with the results of those decisions, one of which is the so-called "War on Drugs."

    This "War" is a grossly augmented version of the Harrison Act, whose "warriors" are erasing many parts of the Bill of Rights, and whose paternalism totally contravenes the Founding Fathers' philosophy.

    Take the Founders' Ninth Amendment.

    The Ninth Amendment says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."  They wanted to prevent a right's not being mentioned in the Constitution from being used to urge its prohibition.  If the Supreme Court should ever "find" that people have a right to use drugs, and if Congress does not nullify such a finding, the Ninth Amendment will protect that right.

    The Tenth Amendment says, "Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  The Founders wrote it to prevent a general Federal supremacy over the States and to prevent Washington from supervising State laws.

    Then, after the Civil War, along came the Radical Republicans, eager to propel the United States toward social egalitarianism.  They wrote the Fourteenth Amendment to force the States to obey the Bill of Rights:  exactly what the Founding Fathers sought to avoid when they wrote the Tenth.

    Consequently, if the Supreme Court were to find that people have a right to use drugs, the Ninth would forbid Federal prohibition, and the Fourteenth would forbid State prohibition, because the Fourteenth crippled the Tenth.

    Here is where things get complex and ironic.

    Many Constitutional literalists love the Tenth Amendment and respect the Ninth, but they want to outlaw vice.  Some liberals want vice to be legal, and therefore might like the Ninth Amendment, but they hate Constitutional literalism and the Tenth.  They love most the Fourteenth Amendment, because it vitiates States' independence of Washington.

    I am a Constitutional literalist who loves the Ninth and Tenth Amendments, but I want vice to be legal.  I would like to abolish the Fourteenth Amendment in order to restore the Tenth, so that, once again, States could innovate without Federal supervision.

    Although restoring the Tenth would let States forbid important freedoms, such as the possession of firearms, competition between fifty truly sovereign States can guarantee our freedom better than nine Federal Supreme Court justices have done or ever could do.

    If the Founders had known cartoonist Rube Goldberg, they might have used his hilariously inefficient machines to argue for our Constitution and its Bill of Rights.

    Using our modern speech, they could have described its guiding principle as, "Freedom Through Gridlock."  They knew that when power is weak, divided, and checked, citizens can prevent or redress its misuse with relative ease.  When it is strong, unified, and unfettered, they can do little to frustrate the purposes of unscrupulous men.

    In his draft of the Kentucky Resolution, Thomas Jefferson said, "...in questions of power then let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution...."

    That idea sounds good to me.
 
 

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