Ilya Somin

If one of the purposes of constitutional law is to protect liberty against abuses of government power, the War on Drugs must be regarded as one of America’s greatest constitutional failures. Over the last century, and especially since its expansion beginning with the Controlled Substances Act of 1968, the War on Drugs has led to thousands of needless deaths, the imprisonment of hundreds of thousands of people, and severe violations of civil liberties—all without doing much to curb the social problems of drug abuse and addiction. With rare exceptions, constitutional law has done little to curb these great evils.

In The Constitution of the War on Drugs, David Pozen gives us the most through and insightful overview of this failure to date. As he demonstrates, there were a number of plausible constitutional arguments for curbing the War on Drugs that—if accepted by the courts—might have significantly limited at least the most severe abuses. But, for the most part, they were rejected. He also offers useful suggestions for future strategy by drug law reformers.

Pozen’s book is an impressive achievement, and there are many valuable lessons in it for both constitutional law scholars and those interested in the War on Drugs and criminal justice. But I do have some reservations about both his historical and doctrinal analysis, and his normative prescriptions.

As Pozen ably documents, the constitutional stage for the modern War on Drugs was set by two major developments of the Progressive and New Deal eras. The first was an expansion in the understanding of state “police power.” Previously, many paternalistic regulations were likely to be struck down under the Due Process Clause of the Fourteenth Amendment or its state equivalents. The rise of anti-gambling and alcohol prohibition movements helped change that, leading courts to give state governments more leeway. This undermined potential individual-rights challenges to drug prohibition.

The second big shift was the vast expansion of federal regulatory power under the Commerce Clause, with decisions like Wickard v. Filburn (1942), giving the government the power to regulate almost any seemingly commercial activity, no matter how local. This undermined previous constraints on federal power that restricted Congress’ authority to pass laws that forbade the mere possession or in-state distribution of goods and services. Recall that the adoption of nationwide alcohol prohibition required the enactment of a constitutional amendment (later repealed). After the New Deal revolution, no such constitutional amendment was (at least according to the Supreme Court) needed to institute sweeping federal drug prohibition.

While these early twentieth century developments opened the door to drug prohibition, Pozen explains that some jurisprudential trends since the 1960s made constitutional challenges to the War on Drugs potentially feasible.

Beginning with Griswold v. Connecticut (1965), which struck down a state law banning distribution of contraceptives to married couples, the Supreme Court issued a series of decisions protecting various personal liberties under the Due Process Clause of the Fourteenth Amendment, particularly those relating to reproduction and bodily autonomy. This opened up the possibility that the right to take illegal drugs might be similarly protected.

Later, a more conservative Supreme Court once again began to enforce limits on federal Commerce Clause authority, starting with United States v. Lopez (1995). This created hope that at least some types of federal drug prohibition might be invalidated as beyond the scope of congressional power.

Sadly, neither approach had much success. With the exception of a few notable state supreme court rulings, courts largely rejected the idea that constitutional rights of bodily autonomy extended to the use of illicit drugs. On the federalism front, in Gonzales v. Raich (2005), a 6-3 Supreme Court ruled that Congress’ power to regulate interstate commerce was broad enough to encompass even a ban on the possession of medical marijuana that had never crossed state lines, and never been sold in any market within a state.

Pozen also goes over other several other types of constitutional challenges to the War on Drugs, including arguments that it violates freedom of speech (because drug users often partake for the purpose of communicating messages or changing their states of mind), freedom of religion (some illegal drugs are used for religious purposes), and that the severe punishments inflicted on some people convicted of drug crimes violate the Eighth Amendment. In each case, the challenges either failed or only succeeded in a very narrow range of circumstances that had little effect.

As Pozen emphasizes, both liberal and conservative jurists played a role in the defeat of constitutional challenges to the War on Drugs. Neither come off well in his book.

Like many other scholars, Pozen also highlights the role of racism in the growth of the War on Drugs (Ch. 3). Many prohibitionist policies historically targeted drugs associated with blacks and Hispanics. But he also rightly cautions against overestimating this factor. As he points out, the expansion of the War on Drugs from the 1960s to the late 1980s was actually supported by some key black political leaders and members of the black community, on the theory that stronger enforcement might help protect minorities from the perils of gangs and drug addiction. Prominent black members of Congress even initially backed the notorious “crack-cocaine” disparity (under which mostly black crack dealers and distributors were punished far more severely than mostly white purveyors of cocaine), because crack was seen as a menace to inner-city black communities. These circumstances—combined with the facially neutral nature of the drug laws themselves—made it difficult to challenge drug laws on the theory that they unconstitutionally discriminate based on race and ethnicity.

Pozen’s otherwise thorough account does unduly neglect one important aspect of the story: the fact that the most severe drug war penalties are usually reserved not for people guilty of mere use or possession of drugs, but for those who produce, sell, and distribute them. Since the New Deal era, left-liberal jurists—and even many conservatives—have been wary of strong judicial review of “economic” regulations. This was at the root of both the New Deal Commerce Clause revolution (breaking down federalism restrictions to congressional power) and the Supreme Court’s rejection of judicial protection for most economic liberties and property rights.

Seriously curbing the War on Drugs would have required courts to overcome this allergy to scrutinizing “economic” regulation. Progressives who (rightly) seek stronger judicial scrutiny of the War on Drugs will need to overcome at least some of their scruples regarding judicial review of economic transactions.

To be sure, judicial protection for some supposedly noneconomic personal liberties has led to invalidation of laws that restrict related commercial activity. For example, Griswold invalidated a law that restricted the sale and distribution of contraceptives. But, in general, even constitutional rights that get strong judicial protection in other respects often stop short when it comes to regulation of commercial transactions. For example, Lawrence v. Texas (2003) struck down laws banning same-sex sexual relations; but its respect for personal sexual autonomy stopped short of invalidating laws banning prostitution. Stanley v. Georgia (1969) protected the right to use and possess pornography in the home but did not strike down laws banning the sale and distribution of pornography.

As Pozen notes, there is a substantial originalist basis for much broader protection for bodily autonomy under the Due Process and Privileges or Immunities Clauses of the Fourteenth Amendment. But a right to bodily autonomy broad enough to invalidate, or at least significantly curtail, laws banning the sale and distribution of currently illegal drugs would also lead to at least partial invalidation of much other paternalistic “economic” legislation. For example, current law bans organ markets, thereby restricting the autonomy of potential organ donors, and consigning thousands of people to a premature death, due to kidney shortages. Significantly curbing the War on Drugs by expanding judicial protection for the right to bodily autonomy would require breaking down the aversion to judicial review of “economic” issues.

I think it should be done! But, interestingly, Pozen himself seems ambivalent. In the book, he decries growing judicial protection for commercial advertising of legal drugs. Similarly, one of the few areas where there has been constitutional progress against the War on Drugs in recent years has been in the area of asset forfeitures, where the Supreme Court has begun to limit law enforcement power to seize property supposedly used in drug crimes. Rather than praising this development, Pozen derides it as “commodity fetishism” under which “[t]he owner’s property receives more protection than the owner himself.” (P. 112.)

This position is problematic. Asset forfeitures cause great harm to property owners—particularly poor and minority owners—allowing the government to seize cars and other valuable assets with little due process. The Court’s apparent willingness to significantly curb these practices—signaled in a recent decision issued after Pozen’s book went to press—should be applauded. And it makes sense for the Court to use the Eighth Amendment more aggressively in forfeiture cases. The Amendment specifically bans “excessive” fines, while other types of punishments are forbidden only if “cruel and unusual.”

Another issue Pozen likely should have addressed is the way the War on Drugs has weakened Fourth Amendment protection against “unreasonable” searches and seizures. It often seems as if there is one Fourth Amendment for drug cases, and another (less deferential one) for everything else.

Looking forward, Pozen is relatively pessimistic about future constitutional challenges to drug laws, though he still urges them to continue. He also advocates using constitutional arguments to attack drug prohibition in the court of public opinion and the legislative arena.

Pozen is somewhat overly pessimistic about the potential for federalism-based challenges. Three of the five conservative justices then on the Court dissented in Gonzales v. Raich, mentioned earlier. Justice Clarence Thomas, who wrote a forceful dissent in Raich, has more recently signaled interest in reversing that case. It’s possible there might now be a majority on the Court for doing so. The shifting ideological valence of constitutional federalism may lead one or more liberal justices to support that position, as well. One can potentially imagine a Supreme Court decision striking down laws banning possession and at least some types of in-state distribution of drugs. While that would not end the War on Drugs, by any means, it would give more liberal states greater room for experimentation.

Other types of constitutional challenges to drug laws have a more difficult path to success, if any. I am skeptical that free speech and freedom of religion challenges can ever lead to more than marginal progress, or that they deserve to do so. The same goes for Eighth Amendment arguments.

On the other hand, bodily autonomy theories grounded in originalist arguments might have more of a chance, albeit it will still be very difficult. The Supreme Court’s repudiation of abortion rights in Dobbs need not necessarily preclude such progress, as the Court repeatedly emphasized that abortion is a special case, given the argument that laws restricting it protect innocent life (that of the fetus). Drug prohibition, by contrast, actually threatens the lives of innocents, as the carnage of the War on Drugs shows. However, any major progress would depend on judicial willingness to review at least some “economic” regulations more aggressively.

Historically, successful constitutional reform movements have relied on a combination of litigation and political action. That was true of the Civil Rights Movement, the feminist movement, advocates of same-sex marriage, and others. Opponents of the War on Drugs would do well to learn from this history, as well as that of past efforts to impose constitutional constraints on drug prohibition. Pozen’s book is an invaluable tool for understanding that history, and hopefully creating a better future.