The war on drugs has been “an absolute failure,” said Gov. Gary Johnson of New Mexico at a Cato Institute conference on national drug policies on October 5. Johnson, who drew sharp criticism from anti-drug leaders for being the first sitting governor to advocate legalizing drugs, argued that the government should regulate narcotics but not punish those who abuse them: “Make drugs a controlled substance like alcohol. Legalize it, control it, regulate it, tax it. If you legalize it, we might actually have a healthier society.”

The day-long conference, which was covered by CNN and C‑SPAN, featured three panels of scholars and activists on drug policies and a debate between Daniel Polsby, professor of law at George Mason University,and Daniel Lungren, former attorney general of California.

One major issue discussed was the drug war’s impact on the Constitution.Yale law professor Steven Duke contended that the drug war is an“unwinnable war” that is depriving us all of “precious liberties.” Duke, coauthor of America’s Longest War, argued that “theanti-constitutional effects of the drug war have been so relentlessly obvious for so long that a cynic might wonder whether the Constitution is not the true enemy of the drug warriors.” Roger Pilon, Cato’s vice president for legal affairs, argued that “the war on drugs is being waged utterly without constitutional authority and therefore is inherently illegitimate.” Pilon also pointed out that many self-proclaimed friends of federalism have turned their backs on the Constitution when it comes to the drug war: “Those who have talked most strongly in recent years about the revival of federalism and have championed it at every turn are themselves leading the war on drugs.” David Kopel of the Independence Institute described how fighting the drug war has resulted in the militarization of law enforcement.

Three former members of law enforcement agencies described how their experience fighting the drug war had changed their views of prohibition. Joseph McNamara, former police chief of San Jose and now a research fellow at the Hoover Institution, said he had learned that the drug war is unwinnable in a free country: “It’s a consensual transaction, and the people obviously treasure their privacy. There is no way the police can penetrate this world unless everyone becomes a suspect, everyone gets stopped, everyone gets searched.”

The panelists agreed that there have been real casualties in the drug war. Julie Stewart, president of Families Against MandatoryMinimums, said that we are going through “a shameful period in American history. I look forward to the day that we can look back as a nation at this period with horror that we would deprive people of their liberty for so small an offense, a nonviolent offense, and yet we would take away so many years of their lives.” Ted Galen Carpenter,vice president for defense and foreign policy studies at Cato, argued that “the current drug war has already caused social disruptions,both in the United States and several drug-producing countries in Latin America, and has badly eroded important liberties guaranteed by the U.S. Constitution. An escalation could cause social and political havoc in portions of the Western Hemisphere and pose a moral threat to the remaining civil liberties of Americans—even in cases far removed from the drug issue.”

The conference, broadcast live on the World Wide Web, is available for viewing online along with other Cato programs.Excerpts from the remarks made by Johnson and P.J. O’Rourke, Mencken Research Fellow at Cato, are available on the October 1999 edition of CatoAudio.

This article originally appeared in the November/​December 1999 edition of Cato Policy Report.