Today, Jotwell (reviewing new legal scholarship) published my review of an important new book by Columbia University law professor David Pozen, War on Drugs Constitution. The commentary was titled “The War on Drugs is a Constitutional Failure.” Here are some excerpts:
If one of the purposes of the Constitution is to protect liberty from the abuse of government power, then the war on drugs must be considered one of the greatest failures of the American Constitution. Over the past century, especially since its expansion began with the Controlled Substances Act of 1968, the war on drugs has resulted in thousands of unnecessary deaths, the incarceration of hundreds of thousands, and gross violations of civil liberties, all without Any measures taken have largely curbed the social problem of drug abuse and addiction. With rare exceptions, the Constitution does little to curb these immense evils.
exist War on Drugs ConstitutionDavid Pozen provides us with the most comprehensive and insightful overview of this failure to date. As he demonstrates, there are many plausible constitutional arguments for curbing the war on drugs that, if accepted by the courts, could significantly limit at least the most serious abuses. But most of the time, they were turned down. He also offers helpful suggestions for future strategies for drug law reformers.
Pozen’s book is an impressive achievement, with many valuable lessons for constitutional scholars and those interested in the war on drugs and criminal justice. But I do have some reservations about his historical and doctrinal analysis and his normative prescriptions.
As Bozen ably documents, the constitutional phase of the modern war on drugs was set by two major developments in the Progressive Era and the New Deal Era. The first is to expand the understanding of the state’s “police powers.” Previously, many paternalistic statutes might have been struck down under the Due Process Clause of the Fourteenth Amendment or its state equivalents. The rise of the anti-gambling and prohibition movements helped change that, leading courts to give states more leeway. This weakens potential individual rights challenges to drug prohibition.
The second major shift was the dramatic expansion of federal regulatory powers under the Commerce Clause, making such Wickard v Philburn (1942), gave the government the power to regulate virtually any semblance of commercial activity, regardless of locality….
Posen explains that while these developments in the early twentieth century opened the door to drug interdiction, several jurisprudential trends since the 1960s have made possible constitutional challenges to the war on drugs.
Started with Griswold v. Connecticut (1965) struck down state laws prohibiting the distribution of contraceptives to married couples, and the Supreme Court issued a series of decisions protecting various individual liberties under the Due Process Clause of the Fourteenth Amendment, particularly related to reproduction and bodily autonomy of freedom. This opens up the possibility that the right to take illegal drugs may be similarly protected.
Later, a more conservative Supreme Court again began to impose limits on the federal Commerce Clause’s powers, first United States v. Lopez (1995). This raises hope that at least some types of federal drug prohibition may be invalidated by being beyond the scope of Congressional authority.
Sadly, neither approach had much success…
Bozen’s otherwise detailed account does unduly ignore an important aspect of the story: that the harshest drug war penalties are often imposed not on those who merely use or possess drugs, but on those who produce, sell, and distribute them . Since the New Deal era, left-liberal jurists—and even many conservatives—have been wary of robust judicial review of “economic” regulations. This was the source of the New Deal’s Commerce Clause revolution (breaking down federalist constraints on congressional power) and the Supreme Court’s rejection of judicial protection of most economic freedoms and property rights.
Seriously curbing the war on drugs will require courts to overcome this allergy to scrutinizing “economic” regulation. Progressives who (rightly) seek stronger judicial scrutiny of the war on drugs will need to overcome at least some concerns about judicial scrutiny of economic transactions….
The review also identifies some potential avenues for future progress and urges opponents of the drug war to combine litigation with political action.
The war on drugs is one of the greatest injustices in American public policy and one of the greatest constitutional issues of modern times. Pozen’s book makes a significant contribution to our understanding of the relevant historical and legal doctrine.
