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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Pozen on Prosocial Drug Use
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Sunday, May 05, 2024
Pozen on Prosocial Drug Use
Guest Blogger
For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024). Jennifer
D. Oliva The
United States has long waged a “costly, punitive, racist, and
ineffective” drug war “that has been a failure on all counts.” Over the last
half-century, Americans have sacrificed trillions of dollars to prop up a
prohibitionist drug law and policy framework that has ensured ever-escalating
and record-setting drug-related mortality and
enshrined the United States as the world champion mass incarcerator. Columbia law professor David
Pozen’s book, The Constitution of the War on Drugs, breaks new ground by
exploring the evolution of American drug prohibition through the lens of
constitutional law. The
drug war is a glaring example of policy failure driven by American “racial and spatial logics.” As historian Matthew Lassiter pointed out, “[t]he modern war on drugs has
operated through the reciprocal decriminalization of whiteness and
criminalization of blackness and foreignness, grounded in selectively deployed
law enforcement and the discursive framing of idealized suburban spaces and
pathologized urban slums and bordertowns.” In that connection, drug war logic
is stubbornly immune to evidence-based
policy. While purporting to classify drugs as either
licit or illicit based on their safety, medicinal value, and “potential for
abuse,” American law is more likely to deem a particular substance illicit due
to its use association with certain groups than its
toxicological risk-benefit profile. This is why cannabis and various
psychedelics, such as psylocibin, which are associated with racialized
minorities and contingencies on the political left, are illicit under federal
law, while substances like alcohol and tobacco, which account for approximately
40 times the number of deaths than all
illicit drugs combined but are associated with North American colonizers,
are widely available for recreational use. The
drug war’s irrationalities, inequities, and hyper-reliance on harsh punishment
to deter the private use of particular substances, including drugs that promote
positive health outcomes and prosocial experiences, seem ripe for
constitutional challenge. Indeed, inspired by civil libertarians, drug
reformers brought “a tidal wave of constitutional challenges to state and
federal drug prohibitions,” including due process, equal protection, cruel and
unusual punishment, and First Amendment challenges to punitive drug laws in the
late 1960s and 1970s. While those reformers achieved temporal successes, the “tidal
wave was swept back to the sea” as their legal victories were “overturned,
minimized, or ignored by later courts.” As Pozen notes, not only has
constitutional law failed to constrain or reform punitive drug prohibition—“one
of the most ‘obviously defective and destructive’ policies in modern American
history”—it has repeatedly legitimized and perpetuated the drug war. The
Constitution of the War on Drugs
is a must read for anyone interested in a largely ignored arena in the
constitutional law canon: the development of what Pozen deems drug “deconstitutionalization,”
that is, the refusal of modern drug reformers to invoke the constitution to challenge
prohibition. Pozen explains how doctrinal constitutional frameworks and a
complex web of neo-liberal political developments and “broader institutional
and sociological features of the constitutional order” evolved to restrict drug
rights. Such forces, including the dominant, acceptable modalities of American constitutional
interpretation have “worked in tandem” “to prop up punitive prohibitionism.” The
Constitution of the War on Drugs
is a valuable contribution to the constitutional law literature. Yet, it may
have even more to offer to those of us who work in the drug law and policy
space and, as Pozen indicates, largely abstain from advancing constitutional
challenges as vehicles of drug war reform. This is because the book explicitly identifies
and critiques the central issue that has long stymied efforts to dismantle the drug
war: legal reformers’ myopic focus on the medical-like qualities of illicit
drugs, such as pain reduction, at the expense of their non-medical benefits,
such as “the pursuit of pleasure, adventure alterity, insight, or the like.” As
Pozen contends, drug prohibition appears imminently more reasonable when advocates
intentionally excise the prosocial benefits of illicit drug use from their
rights-advancing discourse. This
observation serves as one of the book’s critical insights for drug war
opponents. Mainstream American drug reform can be characterized as a movement away from the dominant “cages” and
“cures” approach to recreational drug use, which relies primarily on
prohibition, criminalization, and abstinence-centered “recovery,” to the
seemingly more benign, science-driven “harm reduction” model. A precise
definition of “harm reduction” is elusive but its primary aim is to minimize the harms that attend to
individuals who use drugs through evidence-based public health interventions. Among
other things, harm reduction provides an alternative to abstinence-only strategies.
It is also notable for its grass-roots genesis among sex workers and individuals
who injected drugs as a mechanism to prevent or reduce negative health outcomes
to which those populations were particularly susceptible, including the
contraction of HIV/AIDS. There
is widespread expert consensus
that jettisoning American prohibition in favor of a harm reduction approach
would positively impact public health outcomes. Legal challenges grounded in
harm reduction theory nonetheless serve as inadequate weapons in the war
against prohibition. The use of illicit recreational drugs for pleasure,
personal fulfillment, and other prosocial purposes is markedly prevalent in the United States. The use of
those drugs in a manner that is problematic or chaotic, on the other hand, is far less common. In other words, while many
people experiment with illicit substances and many benefit from such use, only
a minority develop drug use disorder or otherwise suffer harm. Moreover, the
“harms” that are attributed to illicit drug use are more appropriately conceptualized
as the consequences of prohibition and by-products of structural
socioeconomic, political, and racial inequality. Consequently,
harm reduction arguments cannot and will not dismantle the drug war. By
adopting as a first principle the aim of minimizing drug-related “harms,” harm
reduction as practiced in the United States often reinforces old drug war tactics by “simply updat[ing]
them with neoliberal policies, practices, institutions, and rhetoric.” As
sociologist Gordon Roe argued, “[o]fficial harm reduction is
characterized by a dangerous acceptance of the present situation of drug users,
fatalism towards the prospect of larger change, failure to challenge the
contradiction of licit and illicit drug use, and a continuation of the
assumptions of addiction and morality that underlie abstinence and
enforcement.” As
The Constitution of the War on Drugs approaches its conclusion, it
hopefully reminds its reader that constitutional change is possible and points
to the decriminalization of same-sex sexual conduct, the recognition of
same-sex marriage, and the right to own firearms for self-defense as recent
examples. Pozen then asks why those specific civil liberties campaigns
succeeded where numerous others, like the drug rights movement, stalled out. In
so doing, Pozen explores the various theories advanced by legal scholars to
explain movement success in constitutional law. Those include William
Eskridge’s concept that “the most successful constitutional rights movements of
the twentieth century . . . sought to enhance protections for ‘discrete and
insular minorities’ tied together by a shared social ‘identity.’” Once again,
Pozen criticizes drug prohibition reformers for failing “to forge a common
identity by depicting drugs as a beneficent force in their users’ lives, as
opposed to a tolerable vice, an object for ‘harm reduction,’ or at best a
recreational diversion.” Once again, Pozen is right on the mark. As
The Constitution of the War on Drugs makes clear, the path to a constitutional
right to private drug use is strewn with daunting obstacles. One of the most
formidable is the ongoing pathologizing of drug use by drug reform legal advocates.
The time is past due for prohibition reformers to take a long-neglected fork in
the road by forcefully advocating for the right to use substances for prosocial
purposes and nurturing a common identity around this pursuit of pleasure and
personal fulfillment. Jennifer D. Oliva is Professor of Law and Val Nolan Faculty Fellow, Indiana University Maurer School of Law; Research Scholar, Addiction & Public Policy, O’Neill Institute for National and Global Health Law, Georgetown University Law Center; Senior Scholar, UCSF/UC Law Consortium on Law, Science & Health Policy, University of California College of the Law, San Francisco. You can reach her by e-mail at jenoliva@iu.edu.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |