Lawfare Daily: David Pozen on ‘The Constitution of the War on Drugs’
May 10, 2024
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David Pozen, Columbia Law Professor, discusses the Constitution's impact on the War on Drugs. They explore historical and modern court decisions, constitutional doctrines, and the challenges of drug policy reform. Topics include privacy rights, Equal Protection Clause, and potential marijuana reclassification.
Constitutional law shaped the drug war's evolution from state to federal enforcement.
The punitive prohibitionist approach of the Controlled Substances Act categorized drugs strictly.
Constitutional doctrines faced challenges in curbing punitive drug laws, limiting their effectiveness.
Deep dives
The Evolution of Drug Enforcement Policies through Constitutional Law
Constitutional law has played a significant role in shaping the historical evolution and sustainability of the drug war in the United States. In the late 1800s and early 1900s, constraints on Congress's authority resulted in drug enforcement falling to the states. Subsequent shifts, like the tax power, paved the way for federal involvement. The book explores how constitutional law has both legitimized and inhibited drug policies over time, shedding light on their impacts.
Modern Drug Policies and the Controlled Substances Act
The Controlled Substances Act of 1970 established a punitive prohibitionist approach to drug regulation at the federal level. This approach favored criminalizing substances over public health strategies, leading to strict regulation based on perceived dangerousness and medical utility. The Act categorized psychoactive substances by schedules, with Schedule 1 being the most restricted. However, the Act had analogs in state laws, enforcing punitive prohibitionism models across the board.
Challenges in Applying Constitutional Doctrine to Drug Rights Claims
Attempts to challenge drug policies through constitutional doctrines faced various obstacles. Concepts like personal autonomy from cases such as Griswold v. Connecticut were influential in framing drug rights debates by extending privacy rights to substance use. However, issues with managedability, like defining excessive punishment or proving intentional discrimination, limited the effectiveness of equal protection and Eighth Amendment arguments against punitive drug laws.
The New Deal Settlement and Constitutional Frameworks for Drug Policy
The New Deal settlement's emphasis on regulatory goals and judicial deference has influenced the handling of drug policies within the constitutional framework. Constraints in acceptable arguments within courts have maintained the law-politics distinction. However, the alignment of judicial structures with drug policies challenges the comprehensive approach of constitutional law in addressing contentious social issues, highlighting the limitations of legal frameworks.
Current Decriminalization Trends and the Future of Drug Policies
Ongoing shifts towards decriminalization and reclassification of substances like marijuana reflect changing public attitudes towards drug policies. The reported reclassification of marijuana from Schedule 1 to Schedule 3 at the federal level signals a potential shift towards more tolerant regulations. However, while these changes may offer tax benefits and cultural significance, they also underscore the broader debate on constitutional roles in mitigating punitive drug enforcement while adapting to evolving public demands for reform.
David Pozen is the Charles Keller Beekman Professor of Law at Columbia Law School and the author of the new book, “The Constitution of the War on Drugs,” which examines the relationship between the Constitution and drug prohibitions. He joined Jack Goldsmith to talk about the constitutional history of the war on drugs and why the drug war was not curbed by constitutional doctrines about personal autonomy, limits on the federal government’s power, the Equal Protection Clause, or the prohibition on cruel and unusual punishment. They also talked about whether the political process is working with advancing decriminalization and how this impacts the constitutional dimension of the drug war.
