Looking Inside and Outside the Law to Understand the Successes and Failures of Drug Reform

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Kimani Paul-Emile 

Much has been written about U.S drug prohibition over the years, so it is surprising that no one until now has used the constitution as lens for examining it.  In his excellent new book, The Constitution of the War on Drugs, David Pozen exhumes the long-buried history of constitutional challenges to punitive drug laws and masterfully chronicles how the judiciary was used by reformers and the state to dispute, rationalize, and ultimately enable the widely maligned war on drugs.  After documenting the ways in which constitutional law has failed to offer a path to more sensible and humane drug laws, Pozen observes that drug reformers today “do not invoke our supreme law”[1] and asks whether drug reformers even “need constitutional law at all to dismantle the war on drugs.”[2]  Like Pozen, my response to his query is an emphatic no.

Pozen makes clear that drug regulatory decision-making has been inconsistent and untethered from scientific and medical data on the pharmacological properties of certain drugs, yet constitutional law has been ineffective at providing a basis for rolling back the resulting drug laws.  In a forthcoming book, I argue that activists use a different strategy to reform oppressive drug laws, and this effort occurs well before advocates ever set foot in a courtroom.  Successful reform is often achieved through what I call “drug framing,” which is the allocation of meaning to a drug that precedes the drafting of laws or regulations.   

When there is disagreement over how a drug should be regulated, corporate actors, reform advocates, drug consumers, government entities, and others engage in drug framing -- a kind of rhetorical strategizing -- to ensure that the drug will be regulated in ways that satisfy their preferences. More specifically, these stakeholders battle to have the drug classified within one of three broad categories: consumer product, medicine, or social threat.  These categories are important because although their boundaries are neither neat nor fixed, these categories have important implications for how the drug will be regulated.  Medicine category drugs are regulated in ways that center individual and public health, consumer product category drugs receive minimal regulation, and social threat category drugs are subject to criminal rules and penalties. 

To get a drug classified within one of these categories, the stakeholders who engage in drug framing associate the drug with one of three distinct principles: “(1) consumer disclosure, which focuses on drug users as rational consumers who assume the risks of drug use, with a corresponding emphasis on the disclosure of such risks by drug-makers, (2) safety, which centers individual and public health, and (3) moral judgment, which presumes that certain drug use transgresses the boundaries of civil society.”[3]  In light of how much is at stake for those who seek to use and sell drugs, and for those punished for doing so, drug framing is most accurately described as a winner-take-all battle among interested parties who use these principles persuasively to shape public perception of a contested drug as appropriately belonging within one of the three categories: consumer product, medicine, or social threat.  These interested parties do so because each of these categories is associated with one of the three principles, which work to give its companion category meaning and coherence: consumer product category framing instantiates consumer disclosure principles, medicine category framing corresponds to safety principles, and social threat framing reflects moral judgments.  Indeed, the well-known terms “personal responsibility,” “harm reduction,” and “war on drugs” are not only integral parts of the consumer product, medicine, and social threat categories, respectively.  They are also “rhetorical manifestations” of the principles: consumer disclosure, safety, and moral judgement.[4]

Although the categories themselves have clear meaning, the drugs placed in the categories lack inherent meaning.  Drugs are substances onto which meaning is conferred.  Consequently, a drug framed as being in one category need not have the pharmacological properties typically associated with the category.  For example, tobacco is popularly understood to be a consumer product, but it is still a dangerous substance.  Likewise, the characterization of cannabis as a health hazard does not mean that it is, in fact, dangerous or that is does not offer significant medicinal benefits.  Thus, the association of particular drugs with particular categories is not based on a drug’s innate qualities but is instead a result of which principles are used successfully in the framing of the drug.  This is why drug framing matters.  The drug framing process is about assigning meaning and significance to a drug to prompt individuals to think and feel about the drug in ways that enable or preclude certain regulatory actions.  This helps explain how drugs can be regulated in ways that that defy sound medical evidence of their health effects.  Drug framing can involve lobbying, activism, and direct appeals to consumers through advertising, among other tactics; and the consequences of prevailing in these framing battles are considerable since the eventual drug regulation can lead to billions of dollars in profits for private companies or result in the incarceration of hundreds of thousands of people.

What makes drug framing even more consequential is that the principles used in the drug framing process frequently serve as symbols for contested, but often unspoken, cultural flashpoint issues, including concern about the political power of marginalized populations, anxiety about women’s reproductive autonomy, and disagreement about the proper role of government and market forces in people’s daily lives.  Drug framing debates, for example, have invoked notions of immorality to justify the genocide of native peoples, discrimination against certain European immigrants, and the disenfranchisement of Black Americans in the interest of regulating alcohol.  Ideas of immorality have also been associated with sexuality and then deployed in framing debates over birth control drugs to restrict women’s place in social and economic life.  Consumer disclosure, in contrast, has been used in drug framing debates as a surrogate for capitalist norms and values: minimal governmental regulation, personal liberty, and free enterprise.[5]

Pozen’s interests dovetail with my own as he seeks to illuminate the law’s failure to bring about drug reform and, focusing largely on cannabis, he demonstrates the seeming irrationality of using criminal laws to govern the drug.  His careful research documents how prior to 1915, lawyers and jurists took it for granted that the Constitution protected drug consumers, particularly imbibers, and that the law could not be used to deprive citizens of their “preferred intoxicants.”[6]   In just a few decades, however, the tide would turn in favor of drug prohibition.  During the 1960s and 70s, reformers challenged harsh and discriminatory drug laws under several constitutional provisions, including the First Amendment, Due Process Clause, Equal Protection Clause, and the Cruel and Unusual Punishment Clause.  Pozen identifies and examines reformers’ few victories but observes that they were “overturned, minimized, or ignored” by subsequent courts even though most of the claims sought to enforce constitutionally exalted negative rights or the right to be let alone in instances where one’s conduct does not infringe upon the rights and freedoms of others.[7] 

During this period, however, other drug makers – the producers of some licit drugs -- were winning constitutional claims based on negative rights and their cases were facilitated by drug framing.  Consider tobacco.  It is the second most popular recreational drug in the U.S. after alcohol, despite being the number-one cause of preventable death.  Notwithstanding tobacco’s high death toll and damaging health effects, tobacco companies have survived hundreds of lawsuits challenging their promotion and distribution of a deadly drug, including Lorillard Tobacco Co. v. Reilly, where the Supreme court invalidated restrictions on tobacco products on First Amendment grounds.[8]  One might assume that tobacco products have avoided meaningful regulation because of their widespread use and lobbying by politically powerful tobacco companies.  While these justifications may be accurate, they do not fully explain why tobacco is subject to relatively light regulation compared to other deadly drugs.   A more compelling justification is that tobacco makers have spent more than a century successfully framing the sale of tobacco products and consumers’ desire to buy and use them as a manifestation of fundamental American negative rights: individual liberty and autonomy.  Capitalizing on a deep strain of classical liberalism in American society, cigarette companies have long used consumer disclosure principles to argue that consumers have the right to make rational choices about their conduct without undue government interference and assume the risks of their behavior so long as they have received certain disclosures and do not burden the rights of others. 

During the late 19^th century, for example, the temperance movement targeted both alcohol and cigarettes, framing them as social threats: “dirty habits” that caused social and moral decay.  While alcohol was eventually criminalized with passage of the 19^th Amendment, which prohibited the sale of alcohol, tobacco companies spent millions of dollars on advertising to frame their product in terms of consumer disclosure principles, shifting public perception of smoking from a “dirty habit” to a manifestation of independence, sophistication, and freedom.[9]  Promotions like the iconic Marlboro man advertising campaign, which is still considered to be among the most profitable marketing strategies of all time, emphasized freedom and rugged individualism, while the Philip Morris company’s successful Virginia Slims cigarette marketing campaign, directed specifically at female consumers, featured stylishly dressed women smoking and included slogans that suggested independence, liberation, and empowerment, such as the popular and long-running tagline, “You’ve come a long way, baby.”  Within a matter of years, the public came to view tobacco as appropriately belonging in the consumer product category.  In short, tobacco companies effectively argued that their product was “no different from other hazardous but enjoyable products that were generally tolerated and regulated with moderation, such as knives, chainsaws, and snowmobiles” and that consumers understood tobacco’s inherent dangers and were thus able to decide whether the risks eclipsed the joys of smoking.”[10] 

The cannabis reform advocates of today have taken a page from tobacco companies’ framing playbook, initially framing cannabis as a medicine.  This framing gained momentum in part because it undercut earlier framing of the drug in terms of allegedly morally suspect groups -- such as “sexually deviant” hippies or Mexican “dope fiends” (a once common racist trope)  -- to instead frame the drug in terms of safety and consumption by middle class, White people suffering from serious medical conditions.^[11]  By the mid-1990s, California became the first state to legalize the medical use of marijuana with passage of the Compassionate Use Act.  Reform efforts then shifted to consumer disclosure framing as activists persuasively underscored the personal liberty interests of cannabis users and producers, which has culminated in several states enacting laws legalizing the drug, beginning with Colorado in 2014. 

No book can cover every drug and thus Pozen was wise to focus on constitutional challenges to criminal drug laws, which he discusses with depth and clarity.  For his next book, he should consider examining the constitutional challenges that have helped keep a lethal drug like tobacco available for purchase over-the-counter to anyone over the age of 18, while cannabis, a significantly safer drug, remains subject to the highest level of drug control on the federal level after decades of activists’ fruitless constitutional litigation.  Although answering this question may require looking outside the law, I am curious to learn what Pozen’s critical evaluation of judicial doctrines and constitutional principles might yield when applied to troublingly dangerous licit drugs.  Until then, David Pozen’s engaging new book is an important and necessary addition to the drug policy canon, and it serves as a welcome compliment to my drug framing hypothesis.  By expertly mapping decades’ worth of efforts to use constitutional provisions to challenge draconian drug laws, Pozen captivatingly illuminates the reasons why activists and advocates have found more success using drug-framing rather than constitutional law to achieve their drug reform aims.  

Kimani Paul-Emile is Professor of Law and Robert L. Levine Distinguished Research Scholar at Fordham University School of Law. You can reach her by e-mail at paulemile@law.fordham.edu.