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The most widely used tool in the American criminal justice system, the drug war, is, as the United States Supreme Court has explained (PDF) in Rapanos v. United States, an unconstitutional and unjustifiable use of law enforcement power. As I explained two months ago while reviewing the case, the use of drug laws to suppress political opposition and political dissent is in fact a form of excessive government power that requires constitutional limits even under the so-called “original meaning” doctrine.
But a recent Supreme Court decision in the same case, Florida v. Harris (PDF) is also an example of this type of judicial activism. Although the state’s law did not prohibit the drug, Florida’s courts nonetheless decided they could use it to go after Harris and his supporters because, in their minds, the drug law, as applied to Harris, violated the Fourth Amendment’s ban on arbitrary and unrestrained government search and seizure.
What has come to be known as the “sting” of the Florida statutes was a drug-free school zone that served to punish Harris and others for carrying small amounts of marijuana in public places (PDF) without consequence for adults. Harris organized a group of about a dozen protesters who were “suspected” of carrying small quantities of the plant, but it was the cops who actually searched their cars and took their marijuana. Police seized almost 100 grams of marijuana for the amount of plant that was inside one of the cars.
The Court’s conclusion that Florida law violated the Fourth Amendment was a foregone conclusion when it first ruled on the case. The Court had relied on Justice Harry Blackmun’s view that “police searches and seizures are presumptively reasonable because in most instances, they are a reasonably quick and certain means by which ‘the police can check to see whether the car or apartment it is seeking to reach has been secured as to its occupants.’ ” But Justice Blackmun, though himself a believer in the Fourth Amendment, is hardly alone in this view. In 2007, the Court also
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