Alan Keyes yesterday defended Attorney General John Ashcroft's butt-in to Oregon euthanasia policies by appealing, in part, to the federal Controlled Substances Act.

"Ashcroft has challenged the legality of the dispensation in Oregon of lethal drugs, saying it was not a legitimate medical practice," explains Keyes. The AG's grounds? The Controlled Substances Act "prohibits physician dispensation of drugs for medically illegitimate purposes."

Killing yourself, to concede a point, is not medically legitimate, and the Hippocratic Oath puts the kibosh on quacks pitching in. So, I have no beef with Keyes' raised dander over euthanasia. But he's dead wrong when it comes to the Controlled Substances Act and federal dominion over dope.

Keyes, a conservative Republican, has apparently forgotten what that whole Constitution thing was about – a peculiar and somewhat selective lapse because he appeals to it in his argument. There is, however, no escaping Article 1, Section 8, which limits the legislative parameters of Congress, detailing specifically what its job entails.

It does not entail regulating drugs – for either medical or non-medical purposes. Article 1, Section 8, mentions a number of things that Congress can do including: lose your mail, raise your taxes, promote "useful arts," declare war and pass "necessary and proper" legislation to help it more efficiently lose your mail, etc. But that's it.

As if that short, concise section were not clear enough, the preamble to the Bill of Rights points out that many state constitutional conventions were worried about "misconstruction and abuse of [government] powers" and wished to add "further declaratory and restrictive clauses. …" Some of those further restrictions included the 10th Amendment:

The 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.

In other words, policy about anything not listed in Article 1, Section 8, is up to the states to decide – including drug policy. And, for years, this is precisely how it operated in the U.S.

Writes historian David Musto, "Licensing of pharmacists and physicians, which was the central government's responsibility in European nations, was, in the United States, a power reserved to each individual state. … The United States had no practical control over … the labeling, composition, or advertising of compounds that might contain opiates or cocaine." What sparked the change from the laissez faire approach to the tightened thumbscrews of today?

"The 19th century's last decade brought the rise of … the Progressive Movement, a set of reforms usually taking the form of federal laws affecting the entire nation with the ostensible purpose of improving the nation's morals or resisting the selfish actions of the rich and powerful," explains Musto. Drug and alcohol prohibition, along with other anti-capitalist endeavors, were part and parcel of the period.

Those policies, which paved the way for the federal Controlled Substances Act, were profoundly unconstitutional and un-American. Ideologically, they are the elder bedmates of the coercive, expansionist politics of modern-day liberalism.

But listen to how "progressive" and "liberal" a conservative such as Keyes can sound on this issue: "The attorney general and the state of Oregon cannot simply agree to disagree on the matter. The attorney general has a federal law and a solemn duty to enforce it. That means that he, on behalf of the sovereign federal power, must distinguish between legitimate and illegitimate medical uses of controlled substances."

Sovereign federal power? Consider the 1834 words of constitutionalist William Leggett: "The government of the United States is a limited sovereignty. The powers which it may exercise are expressly enumerated in the Constitution." Anything beyond that cannot be done "without transcending constitutional limits."

That is the conservative position. That is the Republican position. That is not Alan Keyes' position.

While he regularly points to the wisdom of the founders and heralds their prudence and foresight in framing the Constitution, Keyes is all for ditching such wisdom, prudence and foresight when it comes to hyping the Controlled Substances Act as sovereign federal law, over which the states have no right to dissent.

Whether it's due to ignorance of the past or slow concessions over time, conservatives have seized upon a manifestly un-American vision of the Constitution – one that stretches and contorts it to the conveniences and prejudices of the day without regard to its own provisions for amendment.

The founders are corkscrewing in their coffins right now.

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See Joel Miller's extensive drug-war archive

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