Crackdown: The Emerging Drug Exception to the Bill of Rights
![handle is hein.journals/hastlj38 and id is 909 raw text is: Crackdown: The Emerging Drug
Exception to the Bill of Rights
by
STEVEN WISOTSKY*
[T]he history of the narcotics legislation in this country reveals
the determination of Congress to turn the screw of the criminal ma-
chinery-detection, prosecution and punishment-tighter and
tighter.'
We don't need [a search warrant]. We work in the drug
department.2
Nineteen eighty-seven, the bicentennial of the Constitution, provides
an appropriate occasion to examine the condition and direction of consti-
tutional rights in the United States. The framers of the Constitution,
animated by the spirit of William Pitt's dictum that [u]nlimited power is
apt to corrupt the minds of those who possess it,3 carefully parcelled
out governmental power and controlled its exercise. After ratification in
1787, this central constitutional preoccupation with limiting governmen-
tal power manifested itself in the call for adoption of a Bill of Rights.
Disregarding the enigmatic, perhaps tautological ninth and tenth amend-
ments, the core of the Bill of Rights is a code of criminal procedure
designed to ensure fair treatment and make it difficult for the government
to secure a criminal conviction. Beyond the realm of criminal prosecu-
tions, the function of constitutional guarantees, especially the first and
fourth amendments, is to carve out zones of privacy for the exercise of
personal autonomy. These rights of self-expression4 and privacy and
repose'5 are essential to secure conditions favorable to the pursuit of
* Professor of Law, Nova University Law Center; B.A. 1967, University of Penn-
sylvania; J.D. 1970, University of Miami; LL.M. 1971, Yale University. This Essay expands
on ideas advanced in S. WISOTSKY, BREAKING THE IMPASSE IN THE WAR ON DRUGS (1986).
1. Albernaz v. United States, 450 U.S. 333, 343 (1981) (quoting Gore v. United States,
357 U.S. 386, 390 (1957)).
2. Leen, 3 Fake Police Officers Ransack Home, Miami Herald, July 28, 1985, at B4, col.
1; see infra text accompanying note 118.
3. Speech, Case of Wilkes (Jan. 9, 1770).
4. See generally T. EMERSON, THE SYSTEM OF FREE EXPRESSION (1970).
5. Griswold v. Connecticut, 381 U.S. 479, 485 (1965); see generally C. BLACK, STRUC-
TURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969).
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Crackdown: The Emerging Drug Exception to the Bill of Rights
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