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 19th 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 19th
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.
[1] David Pozen, The Constitution
of the War on Drugs, 15 (2024).
[2] Id. at 160.
[3] Kimani Paul-Emile, The Real War on Drugs: Battles Over Drug
Regulation and How They Changed America (unpublished manuscript on file with the author)
[4] Id. at 3.
[5] Id. at 4.
[6] Pozen, supra note 1, at
3.
[7] Id. at 6-7.
[8] 533 U.S. 525 (2001).
[9] Paul-Emile, supra note 3,
at 48-57.
[10] Kimani Paul-Emile, Making Sense of Drug
Regulation, 19 Cornell J.L. & Pub.
Pol’y 691, 722 (2010).
[11] Id. at 713.