The Wrong War on the War on Drugs

As failures go, the war on drugs has few peers. Formally launched by President Richard Nixon in 1971 but in practice dating from much earlier, it has locked up millions. Today there are 360,000 people incarcerated for drug crimes in the United States; from 2010 to 2019 state and federal police made more than a million drug arrests per year. We spend billions of dollars on enforcement. And yet drugs appear to be as plentiful and potent as ever. Meanwhile drug laws foster a black market enforced by gang violence, which accounts for 15 percent of all homicides, according to a Justice Deparment estimate. Despite proportional drug use by whites and minority groups, African Americans are disproportionately arrested, prosecuted, and convicted for drug offenses, contributing to the injustice of our criminal justice system. And more than 100,000 people die of overdoses annually.

But if the war on drugs has been a failure, so, too, has the constitutional counteroffensive. Constitutional challenges to aspects of drug law enforcement have almost always been rejected. The movement to legalize marijuana and some other drugs has made dramatic strides recently. But none of that progress has been driven by the Constitution.

David Pozen, a leading constitutional law scholar at Columbia Law School, finds this peculiar. In The Constitution of the War on Drugs, he asks:

How could a set of policies as draconian, destructive, and discriminatory as those that make up the war on drugs come to be deemed, by so many officials for so many years, to raise no serious constitutional problems?

The answer, Pozen maintains in this elegant and lucid book, offers important lessons not just about the war on drugs in particular but about the possibilities and limits of constitutional law more broadly.

It’s not as if lawyers haven’t tried. They have invoked multiple aspects of the US and state constitutions in defense of those caught up in drug law enforcement. They have argued, among other things, that the right to privacy, protected by the due process clause, guarantees a right to choose to use drugs; that certain harsh penalties for drug crimes are “cruel and unusual,” in violation of the Eighth Amendment; that racial disparities in arrests and convictions deny equal protection of the law; that Congress lacks the power to prohibit personal cultivation of marijuana for medical purposes; and even that the free exercise of religion includes the right to use drugs as part of one’s faith. But it will not be news that these and other constitutional arguments have all failed.

Pozen insists that “it didn’t have to be this way.” Unearthing the lost history of drug war litigation, he notes that in the early days, some constitutional challenges had occasional success in some courts. In 1975, for example, the Alaska Supreme Court ruled that the state’s right to privacy protected the right to use marijuana in one’s home. Three years earlier, the Michigan Supreme Court reversed a nine-and-a-half-year prison sentence imposed on John Sinclair for possessing two marijuana cigarettes, with some justices finding that he had been entrapped, others that the penalty was unconstitutionally excessive, and still others that the state’s classification of marijuana as a narcotic violated equal protection.

These and a handful of other victories, however, were short-lived and largely limited in scope. Still, Pozen suggests, the fact that constitutional claims sometimes succeeded shows that such arguments are not wholly implausible. If the right to privacy protects the possession of otherwise illegal obscene pornography in one’s home, as the Supreme Court ruled in 1969, why would it not protect private possession of illegal recreational drugs? If couples have the right to use contraception in private, as the Supreme Court ruled in 1965, shouldn’t they also have the right to use drugs in private? If the free exercise of religion means one can worship as one pleases, why shouldn’t adherents of a religion that uses peyote in its sacred rituals be permitted to do so? If Black and Latino men are disproportionately arrested and convicted for drug offenses, doesn’t that violate equal protection? Aren’t decades-long sentences for drug possession “cruel and unusual”? And why, exactly, should Congress’s power to regulate “interstate commerce” encompass a criminal prohibition on growing marijuana for one’s own medicinal use—marijuana that is not intended for commerce at all, much less interstate commerce?

There are constitutional law answers to each of these questions. The right to possess obscenity in one’s home was premised on the First Amendment, which the Supreme Court held generally bars the government from telling citizens what they can read in their home. There is no First Amendment right to smoke pot—a form of conduct, not speech. The right to use contraception was premised on the tradition of respect for privacy associated with intimate sexual relations between consenting adults; there is no such tradition with respect to condoning illicit drug use in private. Laws that prohibit drug use across the board do not violate the free exercise of religion, because they do not single out a given religion for any worse treatment. Racial disparities in the criminal justice system don’t violate equal protection in the absence of proof that they were adopted for the purpose of disadvantaging racial minorities, and mere disparities do not confirm intentional discrimination. The courts lack an objective standard to measure disproportionate criminal penalties, and therefore the “cruel and unusual” provision in the Eighth Amendment in practice limits only the most extreme penalties, such as the death penalty for minors. And if people were free to grow marijuana “for personal use,” it would be much more difficult for the federal government to police commerce in it, so the power to prohibit interstate trade in drugs includes the power to ban home cultivation.

These answers all make sense within traditional constitutional doctrine; none is seriously in question under existing doctrine, notwithstanding academic criticism. Pozen is right that in an alternate universe, courts might have reached the opposite result on many of these questions without violating some core principle of constitutional analysis. But that’s true of most questions in constitutional law—from abortion to gun rights to the separation of powers. There are nonetheless often better and worse answers to constitutional questions, and Pozen does not go so far as to say, much less make the case, that the better answer in all of the above cases would have been to invalidate the challenged law or practice. So what should we take away from the fact that as of today, virtually every constitutional challenge to the war on drugs has failed? Maybe that the way to counter the war on drugs is not through the Constitution?

Pozen, however, is not ready to give up on constitutional law in this realm. In the least plausible section of the book, he even finds promise in originalism, the interpretive method that purports to enforce only the original understanding of constitutional provisions, which the Court used to overturn the right to abortion in Dobbs v. Jackson Women’s Health Organization (2022). Pozen suggests that originalist justices might support jury nullification in drug cases, a more expansive application of the cruel and unusual punishment clause to invalidate long sentences, a more restrictive understanding of Congress’s reach under the commerce clause that might rein in federal drug laws, and, most unlikely of all, an argument that using drugs is protected under the right to “pursue happiness.” But Pozen quickly concedes, as he must, that the odds for an originalist takedown of the war on drugs “seem long at this writing.”

Pozen’s more serious plea is for a “proportionality” approach to constitutional interpretation. This approach, adopted by many foreign courts, involves a more flexible form of balancing in which judges weigh the costs and benefits of government policies that infringe on protected liberties. Pozen notes that constitutional courts in other countries, using this approach, have invalidated some drug laws.^* But the fact that a handful of foreign courts have reached such results is no more indicative of what might happen here than is the fact that a handful of US state and lower federal courts in the 1970s ruled in favor of drug law challenges using traditional methods of constitutional interpretation. The reality is that whether one looks across American constitutional history or expands one’s scope to the world’s constitutional tribunals, examples of courts invalidating drug laws as unconstitutional are few and far between. And because proportionality relies on the balancing of often incommensurable costs and benefits, it is exceedingly unlikely to “require” any particular result, much less one favoring drug legalization. There is, accordingly, little reason to believe that in the hands of the same judges who have found the American drug war constitutional, proportionality would lead to different results.

Why, then, did the constitutional war on the war on drugs fail? Two factors seem most significant. First and most simply, the Constitution, on the best reading, does not bar the political branches from criminalizing the use of drugs that can have harmful effects on individuals and society—even if prohibition is a very bad idea as a matter of policy. The government undertakes many initiatives that are stupid, counterproductive, wasteful, and destructive—consider, for example, much of our military-industrial complex. The Constitution is silent on most of them. We usually rely on the democratic process—for better or worse—to restrain bad public policy.

And while Pozen makes a moral case that one should have the freedom to use drugs in private, it’s difficult to locate that right in the Constitution. The protection of “liberty” in the due process clause restricts the government’s ability to dictate certain fundamental personal choices, but those liberties have for the most part been limited to matters related to family and procreation, such as when and whether to have a child, whether and whom to marry, how to raise one’s children, and similar decisions that have traditionally been seen, as Governor Tim Walz might put it, as none of the government’s damn business. It is not easy to argue that the right to use drugs is one of these.

Moreover, the Constitution generally protects even fundamentally private choices only insofar as they do not inflict harm on others. The state can and does intervene in child-rearing, for example, when parents abuse or neglect their children. Drug use can have dramatic costs not only for users’ own lives but for the lives of others. Legalization may be the right choice for marijuana, but what about opioids, methamphetamine, heroin, cocaine, and fentanyl? There are persuasive arguments for pursuing medical treatment of drug users rather than a criminal approach, but reasonable people can differ on the issue—and the Constitution does not seem to dictate a solution.

The second factor is related to the first. The people and organizations that seek an end to the war on drugs have for the most part not pursued a constitutional litigation strategy (including the ACLU, which is not shy about protecting constitutional rights). As a former executive director of the National Organization for the Reform of Marijuana Laws told Pozen, many drug law opponents saw the constitutional argument as a “nonstarter.” And constitutional change rarely happens without a concerted effort by civil society organizations committed to a long-term strategy, as recent developments in the right to bear arms, marriage equality, and abortion all attest. Advocates for decriminalization of drugs have largely pursued other avenues, and constitutional law is not likely to reflect their values absent an extended campaign.

The choice to pursue other avenues in contesting drug laws was not a mistake. The constitutional case against the criminalization of drugs is relatively weak, while the policy case is strong. And as the past decade has illustrated, dramatic social and legal change can be achieved without resorting to the Constitution and the courts. According to the National Association of Criminal Defense Lawyers:

As of October 2023, thirty-one states and Washington D.C. have decriminalized simple possession of marijuana. Thirty-eight states and Washington, D.C. have legalized medical marijuana, and twenty-two states and Washington, D.C. have legalized recreational marijuana for adults.

The federal government has proposed reducing marijuana from a Schedule I to a Schedule III drug, which would relax restrictions on its production and use. And Republicans and Democrats alike have supported reducing sentences for drug crimes. We have witnessed a sea change on drug policy in the past decade—and courts rarely order sea changes.

So Pozen is right that the lost history of constitutional challenges to the war on drugs offers important lessons about constitutional law. But the most important ones may be that not every bad idea is unconstitutional, and that major social and legal reform can—and sometimes should—be accomplished through the political process, not the courts.