Wednesday, May 01, 2024

Constitutional Withdrawal

Guest Blogger

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

Rachel E. Barkow

You might think the only thing harder than finding something new to say about constitutional law is finding something new to say about the drug war. David Pozen’s new book, The Constitution of the War on Drugs, offers refreshing and thought-provoking insights on both by exploring what the Constitution has to say – or could have said, with a different set of justices – about drug prohibition and enforcement. Pozen sets the stage for his analysis by asking “[h]ow could a set of policies as draconian, destructive, and discriminatory as those that make up the war on drugs come to be deemed, by so many officials and for so many years, to raise no serious constitutional problems?” 

In seeking to answer that question, Pozen exposes not only the limits of various constitutional doctrines to address one of the government’s greatest failures, but also the selective activism on the part of the Supreme Court justices. Pozen persuasively argues the ways in which the Court’s approach to drugs differs from its treatment of issues like reproductive choice and gun rights. That sets up the puzzle Pozen seeks to answer, as he explores why that differential treatment occurred. To those of us who focus on criminal law and punishment more generally, however, drugs do not stand alone. They are just one part of an enormous project of mass incarceration that the Court, and by extension, the Constitution, has ignored.

Pozen explores five main constitutional bases on which drugs laws were challenged and unearths the creative and, sometimes, persuasive arguments used by advocates. This is the heart of the book, and its most valuable contribution, as through these challenges, one can see the paths offered to, and ultimately not taken by, the Court when it came to putting limits on drug criminalization. Pozen characterizes all the arguments he explores as “credible at the time they were brought, as evidenced by the support they received from lower court judges and legal scholars” that he painstakingly documents. 

That said, these arguments are not all on equal footing. Some of these arguments would require large-scale shifts in the Court’s approach to constitutional interpretation. For example, while Pozen is right that it is terrible policy to keep marijuana as a Schedule I drug along with drugs like heroin, opiates, and LSD, one can sympathize with judicial reluctance to strike that decision down under rational basis review. The echoes of Lochner are just too strong. Likewise, while Pozen cites a few legal scholars who supported the idea of seeing drug control as an unlawful form of thought control under the First Amendment and describes how these ideas made their way into some courtrooms, one can certainly understand why they were rejected. 

Other doctrinal areas explored by Pozen reveal less understandable inconsistencies by the Court. Pozen points out the incongruity between the Court’s willingness to bend doctrinal tests and constitutional architecture to pave the way for protection of gay rights, gun rights, and (for a stretch at least), abortion, and its steadfast resolve not to police anything about the drug war.  

Consider, for example, Pozen’s exploration of a right to possess and use drugs as a substantive due process right grounded in the Constitution’s general concern with liberty, privacy, and the pursuit of happiness. Pozen describes the late 19th century view that states could not interfere with purely private behavior and cites various courts striking down alcohol bans on that basis. Things shifted in the early 1900s as courts became more sympathetic to state regulation to protect public health and morals, and one of the key drivers of that shift was legislation aimed at regulating drug use. The Court was willing to forgo its commitment to placing limits on the states’ police power to make room for drug regulation. 

But that’s not the end of the story, as Pozen reminds us, because the Court returned to robust notions of privacy rights in the 1960s. It refused to allow states to ban the sale of contraceptives to married couples, and it recognized a right to have obscenity in the privacy of one’s home. Pozen quotes retired Supreme Court Justice Tom Clark noting that, in light of those cases, the Court “might find it difficult to uphold a prosecution for possession of marijuana.”  The Court’s decision in Roe v. Wade only strengthened the prospects for some protection for drug use on the grounds that people have the right to control their own bodies and what goes into them. The Alaska Supreme Court offered a blueprint of how these precedents could support such a decision, as it held there was a right to possess and use marijuana at home. High courts in other countries followed this model and reached the same conclusion under their constitutions. In the United States, however, the Alaska high court decision became an anomaly, not a trendsetter. Pozen persuasively shows the Court’s rejection of this path was not foreordained. It was a choice.  And one of the reasons the Court narrowed these privacy decisions the way that they did was to “preserve a space for paternalist regulation, including drug regulation.” Drugs thus influenced constitutional law as much as constitutional law influenced the fate of the drug war. 

Pozen makes a similar point in his chapter on federalism. The Court had recognized limits on the federal government’s tax power, but those limits gave way to allow anti-drug legislation. The same pattern emerged again when the Rehnquist Court rejuvenated limits on Congress’s commerce clause powers, only to pull up short when faced with federal regulation of medical marijuana grown and used locally. Pozen makes a persuasive case that the Court’s differential treatment of drug legislation in these contexts rested on the thinnest of reeds. 

The Constitution of the War on Drugs deftly showcases drug prohibition as an anomaly compared to the Supreme Court’s treatment of other regulatory areas and rights under the Constitution. As Pozen notes, “[t]he constitutional arguments that would carry the day in Obergefell and Heller were way further out of the legal mainstream in the 1970s than, say, the argument that the right to privacy recognized in Griswold encompasses the choice to smoke pot in one’s home.” 

But while the Court’s treatment of drugs stands out compared to these other areas, it fits in all too comfortably with the Court’s broader reluctance to engage in constitutional oversight of substantive criminal law and punishment under the Constitution. While the Court’s treatment of drug criminalization might look out of place if put alongside the Court’s more aggressive protection of gun rights or gay rights, it fits comfortably alongside the Court’s approach to substantive crime policy more generally. It is part of a much broader pattern of the Court turning a blind eye to “draconian, destructive, and discriminatory” enforcement of criminal law more generally.  Many of the substantive areas Pozen references that should have been bulwarks against excessively harsh drug policies also should have operated to curb the rise of mass incarceration. In other words, the constitutional failure is even grander than Pozen’s target. 

For example, Pozen’s chapter on humane and proportionate punishment explains why drug sentences could be policed for their excess severity, but those sentences are not the only disproportionate sentences. One sees excessive sentences across the range of the criminal law landscape, from felony murder to statutory rape to three-strikes and other recidivist enhancements. The Court’s anemic construction of the Eighth Amendment means just about every noncapital sentence escapes oversight, not just drug sentences. Similarly, while Pozen correctly uses the disparate treatment between crack and powder cocaine as the example in the chapter on the Court’s unwillingness to police racial disparities, Pozen could have explored almost any aspect of criminal justice policy. Indeed, the starkest example is the Court’s failure in a death penalty case, McCleskey v. Kemp, to credit a rigorous empirical study ruling out dozens of other possibilities before concluding racial bias explains the difference in how cases with white victims and Black victims are treated. The Court’s reluctance was in large part based on the fact that it knew it would find similar racial biases throughout the criminal law’s application, and it was unprepared to police it all. (I am working on a book exploring the Supreme Court’s role in fostering mass incarceration, and I highlight other areas where the Court’s failure to enforce the Constitution is indefensible.[1]) Drugs are a part of the story, and Pozen tells that story masterfully, but the problem goes much deeper. 

For far too long, the Constitution has seemed silent as we have waged a failed war on drugs and turned into the world’s leading incarcerator. It is worth a close look at whether the flaw is with the Constitution or with the people who have been charged with enforcing it. Pozen makes a strong case in many areas that the Constitution was ready to step into the breach, but the courts failed to do their job. 

Pozen argues it is not too late to change course, and I agree. One promising strategy is to focus on those constitutional arguments that have strong historical support to appeal to the Court’s originalists. Pozen is a realist, and he notes with appropriate caution that it would be asking a lot of a methodology that so closely tied to the conservative movement and conservative thought. But he is right to urge advocates to at least try.  They should win some of the challenges Pozen highlights, such as the meaning of the Cruel and Unusual Punishments Clause or the importance of jury nullification, given the strength of the historical record. But even if litigants lose, they will at least reveal the hypocrisy of an approach that its advocates claim is not results oriented. 

There is also value in bringing the Constitution back into the conversation and not conceding defeat even if the payoff does not come immediately with this Supreme Court or the current federal bench. As Pozen notes, “constitutional arguments can be addressed to audiences other than courts.” It is important for legislators, executives, and the public at large to know just how far we have strayed from the Constitution when it comes to the way criminal law operates in America today. Pozen gets things started by focusing on drug policy, but hopefully that will bring an even broader inquiry to how we became the most carceral nation on earth. 

Rachel E. Barkow is the Charles Seligson Professor of Law and Faculty Director of the Zimroth Center on the Administration of Criminal Law at NYU School of Law. You can contact her at


[1] I foreshadow some of the arguments here: Rachel E. Barkow, The Court of Mass Incarceration, 2021-2022 Cato Sup. Ct. Rev. 11, available at

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