Monday, May 20, 2024

The Constitution of the War on Drugs: Response to Commentators

David Pozen

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

I am indebted to Jack Balkin for organizing a symposium on my book, The Constitution of the War on Drugs, and to all of the commentators for offering such rich reflections. The book recovers a lost history of constitutional challenges to punitive drug policies and argues that this history can tell us a great deal about American legal liberalism as well as drug prohibitionism. It is particularly gratifying to see distinguished scholars of constitutional law, criminal law, and health law recognize the importance of this project for their respective fields, even as they raise very different challenges and complications. In this response, I will try to address some of the key points raised by each commentator.

Rachel Barkow situates constitutional law’s failure to restrain the drug war in the context of its larger failure to restrain the rise of mass incarceration over the past half-century. Compared to its treatment of issues like gun rights and gay rights, the Supreme Court’s approach to drugs may seem surprisingly harsh. As the book shows, drug-rights claims enjoyed far more mainstream support in the 1960s and 1970s. The eventual marginalization of these claims, Barkow observes, nonetheless “fits in all too comfortably with the Court’s broader reluctance to engage in constitutional oversight of substantive criminal law and punishment.” I agree with Barkow, which is perhaps unsurprising given how much I have learned from her scholarship on the Eighth Amendment. The book notes that “if we turn our gaze from procedure to substance—from questions about how criminal laws are enforced to questions about what may be criminalized in the first place—the drug cases look less exceptional than representative, and in some areas formative, of the broader legal landscape” (p. 159).


If there is daylight between Barkow and me, it may lie in our views on the specific constitutional challenges that were brought in the 1960s–1970s and their viability within the terms of the New Deal settlement. Barkow suggests, for example, that judicial invalidation of marijuana’s placement in the most restrictive drug schedules would have been just too redolent of Lochner. Maybe, but what if the courts had tried to limit the Lochnerism by reserving meaningful review for criminal cases or otherwise calibrating their level of deference in light of the burdens on defendants? I myself am ambivalent about most such proposals. But the fact that a dozen-odd courts struck down marijuana classifications in the 1970s suggests that it was not foreordained that rational basis review would be a rubber stamp.


Just how much contingency was there, though? Even if certain cases might have come out the other way, Mike Seidman asks, is it plausible that “judge-led reform of our drug policy” could have “flourish[ed]” and, if so, that the country would have been better off overall? These are deep questions that I struggled with in writing the book and that were a focus of a podcast I did with Sam Moyn and David Schleicher. I agree with Seidman that any judge-led liberalization of our drug policy would at some point have run up against, and yielded to, the political, economic, and racial imperatives of the war on drugs. But that’s just to say that the legal contingency in this area was ultimately constrained by social structure, as it always is. The Overton window for constitutional change remained remarkably open throughout the 1960s–1970s, as Seidman appears to acknowledge. Limited constitutional protections could have been established in this period and entrenched to some degree against subsequent political rollback. For instance, the judiciary could have established a right to personal possession and consumption of “soft drugs” like marijuana in the home, as the Alaska Supreme Court did in a 1975 ruling that has never been reversed. The judiciary likewise could have ruled out long mandatory prison terms for nonviolent, nontrafficking offenses under the federal or state constitutional prohibitions on cruel and unusual punishment. So, yes, things really could have been different—not in the sense that constitutional law could have delivered a hippie paradise of sex, drugs, and rock and roll, but in the sense that constitutional law could have curtailed some of the drug war’s worst excesses for some meaningful amount of time. Or so I believe the book demonstrates.


In this counterfactual world, would we find judges dismantling not only draconian drug statutes but also legislation like the Affordable Care Act? Almost any effort to check government overreach will run the risk of inviting unintended deregulatory consequences. I try to emphasize throughout the book “how hard it is to engineer constitutional doctrine so that it will block the most objectionable parts of punitive prohibitionism, on the one hand, while avoiding judicial overreach and preserving worthy regulatory goals, on the other” (p. 16). What seems to me indefensible, however, is the balance we ultimately struck—in which the Constitution is routinely enlisted to undermine regulatory measures such as the ACA while putting up no resistance to criminal drug policies that are themselves criminogenic and a threat to public health. The Supreme Court may not be “composed of wise and sensible jurists.” Yet given this status quo, contemporary drug reformers have little to lose from pitching new legal arguments, not only or primarily to the Court but also to state judges and extrajudicial audiences. The defense bar, at least, ought to mount constitutional attacks wherever the attacks might do some good.


If constitutional law is an unduly neglected yet inherently limited tool with which to fight punitive drug policies, where should critics of these policies focus their reform energies? Kimani Paul-Emile argues that the most significant struggles occur at the level of “drug framing.” Paul-Emile first introduced this argument in a powerful 2010 article that I taught on day one of my Drugs and the Law seminar this past spring. In her telling, a drug’s legal status is determined not by its pharmacological properties or behavioral effects but by its location within one of several frames: consumer product, medicine, or social threat.


I am drawn to this social-constructivist account of drugs as “substances onto which meaning is conferred,” rather than substances with “inherent meaning,” and I eagerly await Paul-Emile’s forthcoming book. Although her account decenters constitutional case law in favor of cultural conflicts that take place “well before advocates ever set foot in a courtroom,” it might be fruitful to consider how the case law contributes dialectically to these conflicts. For instance, it seems to me that the long line of decisions rejecting equal protection challenges to the differential treatment of crack versus powder cocaine not only reflected but also reinforced the framing of crack as a distinctive social threat. By contrast, Paul-Emile’s theory might suggest a revisionist reading of Gonzales v. Raich, which rejected marijuana patients’ challenge to the Controlled Substances Act without rejecting their characterization of marijuana as medicine. Did the Raich litigants lose the legal battle but win the framing war?


Jennifer Oliva offers a concrete suggestion for drug reformers who wish to facilitate a shift from “social threat” all the way to the legally privileged “consumer product” frame: stop talking so much about medical applications and start talking more about non-medical benefits. Most illicit drugs, Oliva explains, are used by most adults “for pleasure, personal fulfillment, and other prosocial purposes.” It must be acknowledged that some drugs exact a terrible toll on some users. Our appetites can lead us horribly astray. But it must also be acknowledged, I take Oliva to say, that such outcomes are the exception to a more banal rule—which is that, year in and year out, countless people consume psychoactive substances without suffering significant adverse consequences. Oliva thus joins my Columbia colleague Carl Hart, whose 2022 manifesto Drug Use for Grown-Ups scandalized many readers, in urging that we repudiate puritan perfectionism and recognize drugs’ potential to advance human happiness and flourishing.


I believe that Oliva and Hart are onto something important. In the constitutional sphere, drug reformers have consistently “pulled their punches” (p. 65)—assailing the harms caused by prohibitory drug laws without doing much, if anything, to defend the drugs themselves. Just about the only context in which constitutional challengers have foregrounded any sort of “pro-drug” arguments are religious liberty cases brought under the Free Exercise Clause. Such arguments would presumably be more credible for certain drug behaviors and communities than for others. I am not sure what a prosocial argument for a narcotic like fentanyl would look like, beyond its ability to deliver pain relief, but even the Nixon administration commissioned a study that found psychedelic use “can be a highly moral, productive, and personally fulfilling” pursuit. Whatever role such considerations ought to play in constitutional adjudication, I have suggested that drug regulators ought to incorporate hedonic interests into their cost-benefit analyses, as is becoming increasingly common in other fields.


The idea that the U.S. drug policy establishment could be trusted to perform such nuanced analyses may strike some readers as fanciful. Yet as Shaun Ossei-Owusu points out, high-level government bodies were strikingly candid about the costs of criminal drug prohibitions throughout the mid-twentieth century. Ossei-Owusu enumerates examples from the book of U.S. government commissions calling for a decriminalized model of drug control. Similar calls were issued by government commissions abroad and by nongovernmental commissions at home, such as the UK Advisory Committee on Drug Dependence and the Joint Committee on Narcotic Drugs appointed by the American Bar Association and the American Medical Association.


If these commissions tended to hold more enlightened views on drug policy than did elected officials, Ossei-Owusu wonders, what does this imply for the “role experts should play in drafting constitutionally sound drug policy”? It’s a good question, to which I don’t have a fully worked out answer. A lot might depend on who is considered an expert. In lieu of any sort of comprehensive response, I will make one modest observation, which is that the Drug Enforcement Administration (to which the Attorney General has subdelegated the authority to schedule drugs under the Controlled Substances Act) is not well suited to play any such role. The DEA’s resources and clout flow from its enforcement of criminal drug laws, which creates a structural bias in favor of criminalization. A Foucauldian theorist of power/knowledge could have a field day analyzing the DEA’s dogmatic appeals to “science” over the years, as if the dangerousness of a drug could be separated from the specific setting in which it is used or the larger legal, political, and cultural context in which it is embedded. But it hardly takes Foucault to appreciate that the same institution that busts drug criminals shouldn’t get to decide which drug behaviors are criminal in the first place. Indeed, this is a paradigm case of administrative law’s “unlawfulness” on the leading right-libertarian account.


The design of the DEA is one of many institutional failures that enabled the war on drugs. As Kate Shaw emphasizes, federal judicial supremacy has been part of the problem as well. In the absence of Supreme Court guidance, legislators and administrators could have developed more robust constitutional protections against cruel and ineffective drug laws. State courts could have exercised more creativity and independence in interpreting their own constitutions. Juries could have been allowed to “nullify” laws they found fundamentally unfair. A more departmentalist, polycentric approach to constitutional drug policy might have made the drug war a little less “monstrous.” It’s hard to see how things could have gone much worse.


Toward the end of her elegant essay, Shaw draws out some possible lessons for reproductive-rights advocates today. If that sounds like a stretch, consider that in his opinion for the Court in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito lumped the right to use illicit drugs with the right to abortion as yet another alleged liberty interest that lacks “any claim to being deeply rooted in history.” The irony of this dictum, as The Constitution of the War on Drugs documents, is that a range of drug-related rights have a substantial historical pedigree. Shaw’s closing remarks raise the question whether abortion drugs and psychoactive drugs might be brought together in a more sympathetic and forward-looking fashion, under a right-to-health framework that deemphasizes criminal responses while prioritizing access to health services and other foundational social supports.


Last but not least, Paul Butler amplifies some of the above-mentioned themes while introducing an important set of concerns. Like Oliva, Butler urges more forthright acknowledgment of the basic reason why millions upon millions of Americans use illicit drugs. “It’s because they can be quite fun.” Americans are by no means alone in this. “Despite their widespread prohibition,” one prominent historian relates, “illicit drugs such as opiates, cannabis, cocaine, amphetamines, and the myriad of psychedelics and synthetics are fundamental features of the modern world, with historical antecedents in virtually all human societies going back to prehistory.” Butler explains that in an early draft of Lawrence v. Texas, Justice Anthony Kennedy observed that “[t]he sexual instinct is of endless fascination for the human.” The same is true of the drug instinct. Moralize about it as much as we want, this fascination cannot be fully suppressed, which counsels realism and restraint in the government’s approach and further strengthens the analogy that Shaw touches on between illicit sex and illicit drug-taking.


Butler is less convinced by the book’s treatment of race. Although he finds aspects of this treatment to be “compelling,” he is critical of my attempts to avoid racial reductivism and suggests that the book might have been more aptly titled The Constitution of the War on Black People. I disagree with a number of points that Butler makes in this part of his bravura essay. Although the book’s historical focus leads it to say little about the current opioid crisis, for instance, it does discuss how decriminalization campaigns have repeatedly been “aided by the ‘whitening’ of certain drugs’ popular image” (p. 70). Both the historical work of James Forman Jr. and Michael Javen Fortner and the fact that “Black elites have sought the status of being considered ‘law abiding’” seem to me fully compatible with the book’s claim that Black elites, like white elites, worried that they would lose more than they would gain from new drug rights. And while the war on drugs did indeed amount to a war on Black people, the influence of race on constitutional outcomes is less clear in various “countercultural” conflicts that the book covers in depth, from the privacy and rationality challenges to marijuana bans brought under the Fourteenth Amendment to the free speech and free exercise challenges to psychedelic bans brought under the First Amendment. That said, I have no doubt Butler is right that the book fails “to fully account for the role of race in the war on drugs” or that “deeper engagement with race might have yielded even more profound insights.” I hope that the book helps to illuminate several facets of this role—in particular, constitutional law’s pathological relationship to racialized drug policies—even if it fails to offer any sort of full accounting. 


* * *


Partway through the launch event for The Constitution of the War on Drugs, on the night of April 30, cops ordered everyone out of the bookstore; although the event was off-campus, they wanted to clear the area in preparation for a raid on Hamilton Hall. It has been a strange and sad time at Columbia these past few months, to say nothing of the horrors beyond. Meaningful dialogue across difference has all but disappeared. The experience has left me feeling more grateful than ever for institutions like this blog that allow people to test ideas and think through difficult topics in a critical yet constructive fashion. So, rather than close with any constitutional musings, I would like to reiterate my thanks to the commentators for their terrific essays and to Balkin for bringing us together. This symposium has been a more stimulating and rewarding launch event than I could have hoped for.



David Pozen is the Charles Keller Beekman Professor of Law at Columbia Law School. The first book in Oxford University Press’s Inalienable Rights series to be fully open-access, The Constitution of the War on Drugs is available for free download here.

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