The Lawfare Podcast Lawfare Archive: David Pozen on ‘The Constitution of the War on Drugs’
Sep 28, 2025
David Pozen, a constitutional law expert at Columbia Law School, dives deep into the complexities of the war on drugs. He discusses how constitutional doctrines have failed to curb drug prohibitions, despite their implications for personal autonomy and equality. Pozen critiques the punitive nature of current drug policies and highlights the racial injustices involved. He also explores the impact of recent political shifts towards decriminalization and the significance of privacy arguments that have struggled in court. A thought-provoking examination of law and society!
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Constitution Shaped Early Drug Laws
- Constitutional doctrine shaped how early federal drug laws took form, like using the tax power before the commerce power expanded.
- This legal evolution explains why federal drug regulation began as taxes and later became direct prohibitions under the Commerce Clause.
Punitive Prohibitionism Became The Default
- The Controlled Substances Act institutionalized 'punitive prohibitionism' that prioritizes criminal bans over public-health strategies.
- States adopted analogous punitive statutes, making criminalization the dominant regulatory model nationwide.
Policy Failure Framed The Puzzle
- The drug war has produced heavy civil liberty and racial justice costs while failing to meet its public-safety goals.
- Pozen treats this consensus as the starting point for examining why constitutional law didn't constrain those harms.
