A Collection of Posts from the Balkinization Blog
Introduction
I felt like I received a special holiday present late last year when David Pozen sent me an advanced copy of his new book manuscript, titled The Constitution of the War on Drugs. In reading the introduction, it was immediately clear that this terrific text, which provides a critical constitutional history of drug prohibition, filled a profound gap in academic literatures. As explained in the introduction, The Constitution of the War on Drugs “recovers a lost history of constitutional challenges to draconian drug laws.” In so doing, the book seeks to “enrich our understanding not only of drug policy development but also of twentieth-century constitutional law, which promised a humane equilibrium—flexibility on social and economic regulation, stringency on civil libertarian rights—but which struggled to deal with policies straddling that divide and, more generally, with the eclipse of the welfare state by the penal state.” Pozen’s book provides a wonderfully rich and astute perspective on a wide array of dynamic legal, political, and social stories at the intersection of constitutional jurisprudence and drug policy. Excitingly, Pozen and his publisher have made his book widely accessible. The work is the first book in Oxford University Press’s Inalienable Rights series to be fully open access.
The Drug Enforcement and Policy Center at The Ohio State University examines drug laws and drug policies in a wide variety of ways, and our Drugs on the Docket podcast is centered around discussions with leading jurists and academics about how courts adjudicate drug cases and address drug issues. Pozen’s sophisticated analysis of what courts have done, and have not done, in response to constitutional claims arising amid the war on drugs made him an ideal guest for an episode in the podcast’s second season.
Unsurprisingly, I was not the only one excited by Pozen’s new book. Yale Law Professor Jack Balkin, astutely recognizing the book engaged many historical and cutting-edge issues in the fields of constitutional law, criminal law and health law, invited professors in these fields to contribute to an on-line symposium on The Constitution of the War on Drugs, hosted on his blog, Balkinization. Balkin assembled a terrific group of commentators: Rachel Barkow (NYU), Paul Butler (Georgetown), Jennifer Oliva (Indiana), Shaun Ossei-Owusu (Penn), Kimani Paul-Emile (Fordham), Louis Michael Seidman (Georgetown), and Katherine Shaw (Penn). Pozen also provided an extended response to these commentators.
These sophisticated and diverse commentaries all first appeared at Balkinization. Recognizing not only that these works would make a terrific companion to the Drug on the Docket podcast, but also that they merited preservation in an academic repository, the Drug Enforcement and Policy Center requested the opportunity to assemble these commentaries (in the order they first appeared online) for posting on the Social Science Resource Network. We are grateful to all the Balkinization symposium participants for agreeing to this repacking of their work, and we expect you will find the discussion to follow to be an additional valuable companion to Pozen’s invaluable book.
Perspectives on The Constitution of the War on Drugs: A Collection of Posts from the Balkinization Blog
This collection of essays provides extended commentary from multiple law professors on David Pozen’s 2024 book, The Constitution of the War on Drugs. Pozen’s book provides a rich and astute perspective on a wide array of dynamic legal, political, and social stories at the intersection of constitutional jurisprudence and drug policy. The work is the first book in Oxford University Press’s Inalienable Rights series to be fully open access. Yale Law Professor Jack Balkin, recognizing the book engaged many historical and cutting-edge issues in the fields of constitutional law, criminal law and health law, invited professors in these fields to contribute to an online symposium on The Constitution of the War on Drugs hosted on his blog, Balkinization. The group of commentators are Rachel Barkow, Paul Butler, Jennifer Oliva, Shaun Ossei-Owusu, Kimani Paul-Emile, Louis Michael Seidman, and Katherine Shaw. Pozen also provided an extended response to these commentators. This publication is a collection of these commentaries, with an introduction by Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law and executive director of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.
Read "The Constitution of the War on Drugs"
The Constitution of the War on Drugs recovers a lost history of constitutional challenges to punitive drug laws. Throughout the 1960s and 1970s, advocates argued that criminal bans on marijuana, cocaine, psychedelics, and other substances violate the U.S. Constitution's guarantees of due process, equal protection, federalism, free speech, free exercise of religion, and humane punishment. Legal scholars and government commissions grappled with these arguments. State and federal courts endorsed them in pathbreaking rulings. By the 1980s, however, the movement for drug rights had collapsed, paving the way for the contemporary war on drugs and its disastrous consequences for racial justice, individual freedom, and public health.
This book shows how constitutional law could have denied the drug war but instead became ever more defined by it—how a profoundly illiberal and paternalistic policy regime was assimilated into, and came to shape, an ostensibly liberal and pluralistic constitutional order. The book details the internal doctrinal dynamics and external cultural developments that first facilitated and then foreclosed challenges to drug prohibition. It explains how courts in other countries have curtailed punitive drug laws using a different approach to rights review. It evaluates the costs and benefits of the U.S. jurisprudence. And it considers potential constitutional paths still open to drug reformers today. In addition to offering a new perspective on the war on drugs, the book supplies a panoramic tour of many of the key features and failings, compromises and contradictions, of late twentieth-century American constitutionalism.
Drugs on the Docket Season 2 Episode 4 - “The Constitution of the War on Drugs” with David Pozen
In this episode, host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, speak with author and professor David Pozen to discuss his new book, The Constitution of the War on Drugs. In this groundbreaking work, Pozen provides a comparative history lesson on U.S. court cases in which constitutional arguments for drug-rights were or were not employed, explains how the Constitution helped to legitimate and entrench punitive drug policy, and offers a constitutional roadmap to drug policy reform that may yet prevail in an increasingly originalist-leaning federal court system.