The Constitution of the War on Drugs

Abstract

This book 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 study 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.