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.