The Constitution of the War on Drugs

The Constitution of the War on Drugs


Publication Date




Part of the Inalienable Rights series.

The U.S. government's decades-long "war on drugs" is increasingly recognized as a moral travesty as well as a policy failure. The criminalization of substances such as marijuana and magic mushrooms offends core tenets of liberalism, from the right to self-rule to protection of privacy to freedom of religion. It contributes to mass incarceration and racial subordination. And it costs billions of dollars per year – all without advancing public health. Yet, in hundreds upon hundreds of cases, courts have allowed the war to proceed virtually unchecked. How could a set of policies so draconian, destructive, and discriminatory escape constitutional curtailment?

In The Constitution of the War on Drugs, David Pozen provides an authoritative, critical constitutional history of the drug war, casting new light on both drug prohibition and U.S. constitutional development. Throughout the 1960s and 1970s, advocates argued that criminal drug bans violate the Constitution's guarantees of due process, equal protection, federalism, free speech, free exercise of religion, and humane punishment. Many scholars and jurists agreed. Pozen demonstrates the plausibility of a constitutional path not taken, one that would have led to a more compassionate approach to drug control.

Rather than restrain the drug war, the Constitution helped to legitimate and entrench it. Pozen shows how a profoundly illiberal and paternalistic policy regime was assimilated into, and came to shape, an ostensibly liberal and pluralistic constitutional order. Placing the U.S. jurisprudence in comparative context, The Constitution of the War on Drugs offers a comprehensive review of drug-rights decisions along with a roadmap to constitutional reform options available today.


Administrative Law | Constitutional Law | Law




Oxford University Press


New York, NY


"The war on drugs has been a moral, political, and policy catastrophe. This stunningly original, powerful book shows that it has been a constitutional catastrophe as well. Fundamental guarantees of liberty, privacy, free expression, fair punishment, and racial equality — all have been sacrificed by the Supreme Court in service of the war effort. Mapping an alternative constitutional path toward sane drug policy and social justice, Pozen masterfully teaches a painful lesson about the failures, if not limits, of constitutional law."
Daryl Levinson, New York University

"The Constitution of the War on Drugs is a profound achievement. Pozen uncovers a lost and expansive history of legal challenges to draconian drug policies. The result is a bracing and truly innovative work of legal reconstruction and moral argument, one that compels lawyers and scholars to fundamentally rethink the role of constitutional law in fortifying a failed carceral state. It is essential reading for anyone, academic or activist, committed to understanding how we got here and how to imagine a different horizon."
Aziz Rana, author of The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them

"Constitutional litigation and drug liberalization have often gone hand in hand around the world. But not in the United States. Why not? What happened to the U.S. drug reform movement? And what does this tell us about modern American constitutional jurisprudence and social movement advocacy? In this brilliant and original new book, David Pozen answers these questions and more — leaving us with a profound sense of the limits of American constitutionalism as an answer to the challenges of our time."
Rosalind Dixon, University of New South Wales

"David Pozen's The Constitution of the War on Drugs offers a masterful assessment of the clash between repressive drug policies and the values embedded in American constitutionalism. One inescapable lesson of the past half century is that criminalization of drug use and addiction have been costly (indeed deadly) and counterproductive. Pozen's detailed review sets the stage for long-overdue policy experiments relying less on criminalization while coming to terms with unavoidable tradeoffs between individual liberty and public health."
Richard Bonnie, author of The Marijuana Conviction: A History of Marijuana Prohibition in the United States

"Pozen has produced a surprising, eye-opening account of how constitutional law might have been a bulwark against the worst excesses of the war on drugs if not for the highly contingent choices of lawyers and judges during the late twentieth century. Chock full of strategic insights and fascinating stories, The Constitution of the War on Drugs is essential reading for anyone who wants to understand how the drug war was created and sustained, as well as how it fits within the shifting landscape of American constitutional practice."
Monica Bell, Yale University

"It can't have been easy to write a book whose central motif is that legal efforts to constitutionalize and decriminalize various drugs have usually led down 'paths to nowhere.' And yet the result is a triumph of the legal imagination. David Pozen's The Constitution of the War on Drugs offers a transcendent constitutional history of the last half-century of criminal drug bans. Brilliantly conceptualized and realized, filled with imaginatively researched stories, The Constitution of the War on Drugs is much more than a history of a particular arena of continuing constitutional failure, although the book is certainly that."
Hendrik Hartog, Princeton University

"David Pozen's carefully researched and brilliantly argued book on the Constitution and the war on drugs is both illuminating and disturbing. No surprise there. Pozen is our country's most inventive and interesting young constitutional scholar."
Louis Michael Seidman, Georgetown University

The Constitution of the War on Drugs


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