Alcohol Prohibition, War on Drugs, and the Fourth Amendment

Introduction

The U.S constitution provides a strong balance on the protection of the rights of citizens and a strong and flexible government.  The Fourth Amendment, in particular, protected the privacy of American citizens and set the required standards for the police.  America has had an ongoing war on drugs for more than a century, and many believe it has caused more harm than good.  Some scholastic professionals have termed the “war” metaphor as a danger.  The term “war” may encourage the idea of a common dangerous enemy and a call to use extreme procedures to enforce them.  The drug war has failed to achieve its initial purpose because the United States continues to experience a widespread use of drugs combined with increased levels of violence.  Despite the obvious failure, the formulation of harsher sentences for drug offenders continues.  The continued war on drugs in America has been termed as a system of social exclusion.[1] The government and law enforcers adversely portray drug traffickers and users to the public, therefore advancing the agenda for stricter drug laws.[2] The aggressive war on drugs has further resulted in undermining most constitutional principles, such as those provided for in the Fourth Amendment. Despite the evident lack of results in the fight against drugs, most Americans are willing to relinquish some of their constitutional rights to accommodate the war.  It could be argued that alcohol prohibition and the war on drugs and crimes have been mainly a fight against the social inclusion of certain minority races, which makes it easier for majority of American people to forego these rights. 

The Scope of the Fourth Amendment

The right to privacy is a fundamental requirement that protects the citizens, especially when it comes to their interaction with the police and government institutions. The Fourth Amendment was formulated to protect the privacy concerns of individuals and their properties.[3] Further, the amendment sought to stop any unreasonable searches and seizures by the police.[4] Law enforcement officers are supposed to act rationally in pursuing reasonable goals if they intrude on an individual’s privacy or possession.[5] However, the amendment requires proof that a particular search or seizure is reasonable, which is generally determined by a balance of the government and individual’s interest.  If there were a search and seizure, the next step is to determine whether the exercise complied with the requirements of the Fourth Amendment specifically, probable cause, warrant, and reasonableness.[6] Searches and seizures conducted by any government official are subject to the Fourth Amendment.  With the continued fight on drugs and crime, there have been formulations of laws that excuse the police from following the scope of the Fourth Amendment when conducting searches and seizures.

A brief history of the war on drugs and alcohol prohibition

The fight against drugs has been going on for centuries in the United States. Government institutions have continually formulated laws to control the consumption and distribution of alcohol and drugs.  Most drug prohibition laws in the U.S have mirrored moral panic with intensified fear about particular racial communities posing a danger.  During the 1870s and 1880s, for example, opium was banned because of fears of the spread of Chinese immigrants in the U.S. During this ban, the whites were banned from opium dens.  Decades later, a ban on the production and consumption of alcohol targeted Mexican immigrants, Native Americans, and African Americans. The ban on alcohol was strengthened by groups that held racists beliefs. Alcohol was the first prohibited drug at federal levels. Further prohibitions on drugs such as marijuana were based on the stereotypes and fears about migrant workers.  It is important to note that whites mainly trafficked narcotics such as opium and marijuana during the early 20th century, and not minority communities.

During the 1940s and 1950s, government officials and media portrayed a Black human-made violent by a drug, which led to further drug prohibition.[7] The Civil Rights Movement witnessed enactment of more drug laws and policies to fight crime.  Many scholars interpreted this as a method of social control against social movements that were rapidly rising.  The police and drug law enforcement practices were intensified and militarized during the 1970s.  Publicity surrounding cocaine led to increased funding in the war against drugs.  The Reagan administration exposed the rise of crack cocaine in 1985 in a bid to gain society and statutory backing for the drug war.  During this period, most of the images used were members of the Black community, which confirmed negative racial stereotypes about individuals dwelling in the inner-cities.  Alcohol and drug prohibition was often formulated with underlying racism and classism as will be discussed in the following sections.

War on Drugs as a Political Tool

Although the use of drugs among White and non-White Americans is alike, most racial minorities are more probable to be arrested and incarcerated at higher rates.  Most of state institutions and politicians have always positioned the war on drugs as a fight to keep most White youth from affluent backgrounds away from prohibited drug marketplaces.  The U.S. drug war has resulted in a racial system of social regulation of inner-city minorities.  White teenagers have become a representation of the most sympathetic victims of drugs.  When white youth became the center of attention, American citizens are willing to do everything possible to ensure their protection. The white youth “victim” can be likened to the case of the movie star Arbuckle. Arbuckle was charged with the murder of Virginia Rappe.[8] While the charges against the accused were dropped, most institutions including religious leaders and political leaders started a fight against movies. According to Finan, most of the moviegoers were working class and immigrants.[9] These institutions, therefore, feared that the social order would be altered, which prompted them to start a campaign against films that featured Arbuckle.  Banning films featuring the actor meant that the influence on the masses would be diminished, and the politicians got to retain power.  Even with the constitution governmental organizations and bodies may still find loopholes that allow them to use the law to the disadvantage of some individuals within the society.

According to Kramer, the American constitutional law has been a constant struggle between popular and legal constitutionalism.[10] In the former type of constitutionalism, the role of the people includes acts of constitutional making, active, and ongoing control over the analysis and implementation of the law.[11] Popular constitutionalism assumes that the public does a better job of protecting the Constitution as compared to the courts.  The war on drugs majorly affects the public, which makes it vital for them to be a part of the enforcement of the laws.  Most government institutions depend on the police to fight crime and drugs during the stop and search exercise.  However, it has been long known that most police officers often support the status quo against any challenge that foreigners present.[12] Law enforcement agencies will challenge any outside idea that may attempt to challenge the status quo of a society.  For this reason, government institutions often use police officers to stop and search.  While in an ideal society the police would follow stipulated guidelines, it doesn’t necessarily happen this way in American society.  Some law enforcement personnel use their power to stop and search individuals using a racial lens via criminal profiling.  Some African Americans have become victims of constant searches and seizures even when there is no reasonable cause.

The current war on drugs and crime has been portrayed as a fight against law enforcement and racial minorities. Government institutions continue to employ harsher sentences for anybody convicted of a drug crime.  Firstly, the court places the responsibility of proving that there was a “search” or “seizure” on a defendant.  The defendant has to show further that the search was unreasonable and amounted to the intrusion of their privacy.  Finding this type of proof is not easy, as witnessed during slavery.  Benedict states that the slave codes during slavery required that slaves provide proof of guilty intent.[13] However, under such circumstances, it was impossible to prove that a master's use of force was not intended to instill discipline.[14] Further, punishing the masters would provide the slaves with the idea that they had rights.  There have been numerous reports of police brutality on racial minorities.  Some African American men are stopped and frisked under the mere suspicion of possession or distribution of drugs.  

War on Drugs and Subtle Racism

While overt racism has been illegal and unwanted in the U.S. for many years, many racial minority groups still experience subtle racism.  Sometimes an institution or individual’s actions and assumptions betray their racial biases.  According to Benedict, for example, while most of the Northerners were against slavery, most of them accepted it as a source of national wealth and shared racist attitudes that undergirded it.[15] The Northerners enjoyed the fruits of slavery through their actions (or inactions), even though they were opposed to the whole institution.[16] In modern America, political and cultural forces combine to protect the middle and upper economic communities from outer threats such as distribution of narcotics.  They do this by ensuring that drug traffickers and dealers within their local or national areas are eliminated from society using any way available to them.  White middle-class previously pushed for the enactment of obligatory minimum laws in federal laws on narcotics during the 1950s.[17] For this reason, the middle class chooses to forego some of their rights to create their perfect society where their rights are protected, and drug users are not victimized.

Since the inception of the war on drugs by President Richard Nixon, the number incarcerated young men from minority groups have significantly increased.  There have been numerous disparities racially and geographically for most of the imprisoned individuals.  African Americans and Latinos still consist of the highest number of youths imprisoned because of drug dealing and using.[18] However, according to Lassiter teenagers from urban and suburban areas trade and use narcotics at the same rate as those in inner-cities.[19] Despite these numbers, Black people are more likely to be detained and incarcerated for the use of marijuana.  The mass incarceration of specific individuals from the African American communities is an extension of racial rhetoric that has been present since slavery and segregation.  In such a society, the white community appears to experience less damage as compared to any other racial minority group.

Subtle racism in the war against drugs and crimes result in profits for government institutions.  The militarization of local enforcement departments has greatly improved since the mass imprisonment of drug offenders started.[20] Law enforcement officers have the responsibility of incarcerating individuals in large numbers because their success is majorly measured through several arrests rather than the brutality of a crime committed.  Furthermore, police officers have been awarded more powers in their policing style that has greatly increased police brutality in some African American communities.  More individuals from minor racial communities continue to be racially profiled, psychologically intimidated, increased cases of stop and search, and constant harassment.  However, the enforcers and advocates of the current drug policy have denied any claims of racism during implementation of the policies.

The written laws and practices are drafted and presented in a racially neutral manner.[21] Police training and guidelines for stop and search and arrest are not indicative of any racial preference.  However, the implementation of some drug laws outwardly appears to target racial minorities in America.  Young African American men are targeted for stops, searches, and seizures in disproportion to the whites. Most of the conversations around war against drugs and crimes are focused on the assumption that rates of arrests and imprisonment are a result of personal choices to participate in criminal behavior.  Members of the public and legal authority fail to see systematic racism in the fight against drugs and crimes and prefer use of “common sense” of what would happen in an ideal world. 

Classism

Classism has been a part of American society in part because of race.  Some races are separated from each other because of the socioeconomic power.[22] Many scholars still hold that middle-class communities used cocaine and opiates as therapeutic drugs.  In these areas, the physicians were more dependent on these drugs for medicinal purposes, although some of the youths abused their prescriptions.  The war on drugs was not declared through many decades that such drugs were used as therapeutic drugs by the middle class.  However, when the usage spilled into popular markets, it became available to the working and lower-class communities.  Society portrayed drug users from different classes and communities differently.  As Herzberg notes, white youth from the middle-class communities’ drug dependence was viewed as accidental poisoning.[23] The reformers further believed that the unregulated drug market led to a majority of this poisoning.  According to the reformers, the consumers of the drugs needed to be protected more.  Protection could mean more regulations on the distribution of drugs.  It could also mean formulation of measures to ensure that traffickers do not sell their products to consumers in certain areas.  The important agenda was that consumers needed to understand what they were purchasing.  Such a solution provided unregulated drug traffickers, who are major members of minority racial groups, at risk of colliding with the law.

Dealing with the drug issue was different in urban areas as compared to the middle-class neighborhoods.  In these areas, the people who fought against the use of alcohol and drugs believed that individuals who resided in inner-cities did not have any intellectual or moral capabilities to make choices on drug purchases.  According to Herzberg, the reformers believed that individuals who resided in less affluent neighborhoods abused drugs for pleasure, and there was no connection between the abuse and market forces.[24] In such neighborhoods, government institutions feel the best way to regulate the market is prohibition and creation of corrective laws that would restrict the use and sale of alcohol and drugs.  The affluent didn’t have to utilize street vendors to obtain their drugs partly because their physicians could potentially provide a prescription.  The alienation in terms of class is further evident in the purchasing power of the clients and the availability of the drugs.  As stated earlier, clients in the middle and upper classes may have the resources needed for prescriptions and even traffickers who may not meet the required standards.

The two different approaches for the war on drugs for individuals of different classes explain why Americans are willing to forego some of their rights.  In this instance, punitive measures against drug distribution and usage are primarily placed on individuals in the lower economic class.  Many individuals in the middle class are not subjected to constant police patrol, stops and searches because they are not depicted as drug users.  Many law enforcement agencies patrol the inner-city where a substantial number of lower-class communities reside.  For this reason, many individuals who live in these areas are more susceptible to random searches even when they may not be legally reasonable.  The middle-class white youth may not be affected by the search and seizure operations of the police, and therefore may not be fully aware of these infringements on the Fourth Amendment because they do experience it.  The youth in these neighborhoods may be willing to forgo some their rights although they may not be fully aware of what they are.  However, it is important to note that most individuals in these neighborhoods advocate for stringent measures against drug users and traffickers because they are afraid of an invasion and a disruption of their status quo. 

Many of the white individuals want to maintain the status quo of their communities by forbidding the entrance of alternative drug distributors.  A majority of these communities may feel that an invasion of a new entrant may distract the current status quo of their communities.  Therefore, to protect their communities they will introduce laws that will regulate the drug market and will put some drug distributers at risk.  It is also vital to state that the media does not create attention to addiction or consumption from middle-class and upper-class communities. There was no media attention in the 1970s when there was a sharp increase in the usage of cocaine among these communities.  The middle and upper class individuals appear to have escaped scrutiny almost to the point that they are protected by government institutions as well as the media.  These individuals may not experience the adverse consequences of the narcotics because they have the resources to get treatment or quit. 

The Role of the Media

The media plays a substantial role in how various perceptions are shaped among citizens. Over the past decade, the U.S has experienced a media captivation of youth who turned to heroin as the recreational drug of choice.  The media outlets have the ability to create a shock value among the members of different groups, including people from affluent backgrounds.  Even if race and ethnicities are rarely mentioned in their headlines and new stories, their intention is sometimes suspect.  The media use of images of Chinese immigrants’ opium led to the enactment of drug control laws in the early 1900s.[25] Most of addicts showed in the media are often from minority groups, especially from the African American community.  The images portrayed by the media can play a large role in how laws are created and how the public will react to these laws.  When most of the drug users and addicts are portrayed as individuals from minority groups, it becomes easier for the public to segregate them.  The public also may allow punitive laws to be enacted to segregate a group of people viewed as outsiders.  The media portrayal of racial minorities as the main drug users and traffickers carefully alienates more affluent members of society.  The public may start to fear the rise of a drug menace, and also accommodate any changes and alterations to their rights in the constitution to avoid an epidemic as a result of these drugs.

During the crack cocaine epidemic, politicians and government agencies significantly utilized the media to shape public opinions on the war on drugs.  During his campaign in 1986, President Bush warned about the drug menace, which was threatening the peace of the country.[26] After his speech, an opinion conducted indicated that more than half of the respondents were willing to forego some freedoms to reduce drug use with a majority indicating that they would agree with police searches in suspected drug dealers’ homes.  Further, a large majority favored the use of military to control illegal narcotics within the country.  The awareness created by the media on various drugs and their connection to crimes simplified the public’s ability to tolerate repression as the war against drugs intensified.[27] Public tolerance, along with the help of the media provides law enforcement agencies as well as governments to create extremely harsh laws that punish offenders.  Public tolerance to an infringement of their rights could be interpreted as faith in the law enforcement.  However, this interpretation could only be true for individuals who do not have any negative experiences with the police.  Unfortunately, for some black and Latino individuals, some encounters with law enforcement have often been associated with police brutality.  However, the media still possesses the power to shape public opinions in a way that will benefit Americans.

The media portrayal of drugs has shaped an interesting political approach.  It contends that the usage of many drugs can be different dependent on the race.  The media humanizes white drug consumers while linking African Americans and Latinos drug use to an increase in crimes and violence.  The humanization of white drug users shows that it is possible to formulate policies that will favor all consumers.  In such an instance, every American would enjoy their rights without infringement.  However, with the continued subtle racism and irresponsible media involvement in public persuasion this cannot be easily achieved.  Drug laws and policies must be formulated without any repression even with the tolerance of the public.  The media still has big role to play in ensuring that the public is sensitized on the issues of drugs and drug abuse in a balanced way.

Conclusion

Some subject matter experts have stated that the fight against alcohol and drugs have failed and has resulted in more harm than good.  From its inception, the prohibition of alcohol and drug wars was based on the views of affluent individuals, which at the time were white.  President Reagan utilized the fear of drugs among Americans to start a fight on the same.  The word “war” attempts to bring communities together via a common enemy.  The war on drugs primarily became a war against drug distributers and a small population of drug users.  The war against narcotics has been divided across racial and class lines since its inception.  Government institutions have often advocated for the white middle class victim versus the foreign drug trafficker or urban pusher rhetoric.  For this reason, a large percentage of the white middle-class has not been substantially affected by the change of laws and regulations as opposed to the lower class minority groups.  Their communities are not necessarily targeted during the law enforcement operations, and may not fully understand the importance of protecting such fundamental privileges.  Further, some racial groups and economic classes may want to retain their status quo in the communities through punitive laws that punish any foreigner.  Subtle racism and classism have made it easier for Americans to forego their Fourth Amendment rights. Most Americans share the sentiments that they need to be protected from the drug menace that is significantly exhibited in some of the racial communities. 

Bibliography

• Benedict, Michael Les. The Blessings of Liberty A Concise History of the Constitution of the United States. 3rd ed. New York: Rowman & Littlefield, 2017
• Finan, Christopher M. From The Palmer Raids To The Patriot Act A History Of The Fight For Free Speech In America. Boston, Mass.: Beacon Press, 2008
• Herzberg, David. "Entitled To Addiction?: Pharmaceuticals, Race, And America's First Drug War". Bulletin of the History Of Medicine 91, no. 3, 2017
• Kramer, Larry. "Popular Constitutionalism." In Major Problems in American Constitutional History: Documents And Essays, 2nd ed. Boston: Wadsworth Cengage Learning, 2010
• Lassiter, Matthew. "Impossible Criminals: The Suburban Imperatives of America's War on Drugs." Journal of American History 102, no. 1, 2015
• Reinarman, Craig, and Harry Gene Levine. Crack In America: Demon Drugs And Social Justice. Berkeley: University of California Press, 1997

[1] Matthew Lassiter, "Impossible Criminals: The Suburban Imperatives of America's War on Drugs", Journal of American History 102 no. 1 (2015) 127.

[2] Ibid.

[3] Craig Reinarman and Harry Gene Levine, Crack In America: Demon Drugs And Social JusticeBerkeley: University of California Press, 1997 236

 [4]Kramer, Larry. "Popular Constitutionalism". In Major Problems In American Constitutional History : Documents And Essays, 2nd ed. Boston: Wadsworth Cengage Learning, 2010.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Christopher M Finan, From The Palmer Raids To The Patriot Act A History Of The Fight For Free Speech In America Boston, Mass.: Beacon Press, 2008 73.

[9] Ibid.

[10] Kramer, Larry. "Popular Constitutionalism". In Major Problems In American Constitutional History : Documents And Essays, 2nd ed. Boston: Wadsworth Cengage Learning, 2010.

[11] Ibid.

[12] Finan (n3) 126.

[13] Michael Les Benedict, The Blessings Of Liberty A Concise History Of The Constitution Of The United States, 3rd ed. New York: Rowman & Littlefield, 2017, 108.

[14] Ibid

[15] Benedict (n9) 107.

[16] Ibid

[17] Lassiter (n1) 130.

[18] Ibid. 127.

[19] Ibid.

[20] Craig (n3) 230.

[21] Finan (n4) 36.

[22] Benedict (n9) 146.

[23] David Herzberg, "Entitled To Addiction?: Pharmaceuticals, Race, And America's First Drug War", Bulletin Of The History Of Medicine 91, no. 3 (2017) 590.

[24] Ibid.

[25] Herzberg (n22) 593.

[26] Craig (n3) 232.

[27] Ibid.