abstract. The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions.

This Review highlights, supplements, and critiques Pozen’s important contribution to our understanding of the war on drugs. We begin with a look in the mirror, acknowledging the legal academy’s own role in enabling the drug war. Next, we introduce alternate explanations for the judicial passivity that Pozen criticizes. Chief among these is race-making: the drug war helped its proponents shape the evolving meaning of race.

We also challenge Pozen’s nuanced explanations for judicial resistance to substantive constitutional challenges. The constitutional terrain where litigants most frequently challenged the drug war was procedural: the Fourth Amendment. And in those battles, the Supreme Court proved to be an eager drug warrior, not an ambivalent conscript. The same pattern repeats itself throughout federal and state courts and across the broader “war on crime.” Our critiques do not take away from Pozen’s contribution—the unearthing of a forgotten history of early battles in the drug war where litigants and judges briefly pushed back on the now widely accepted notion that drug use and possession could be criminalized. But we situate his findings within a broad backdrop of race, crime, and, above all, the judiciary’s eagerness to just say “yes” to the war on drugs.

authors. Bennett Capers is Stanley D. and Nikki Waxberg Professor of Law and Director of the Center on Race, Law, and Justice, Fordham School of Law. Jeffrey Bellin is Mills E. Godwin, Jr., Professor of Law, William & Mary Law School. A special thanks to Irina Kandarasheva, the Curator of Rare Books and Special Collections at Columbia Law School’s Arthur W. Diamond Law Library, for her assistance with information about the history of Columbia Law School. The authors also thank David Pozen for writing the fascinating book that prompted this Review.

Introduction

When, on June 11, 2024, a jury in Delaware returned a guilty verdict against Hunter Biden, the sitting President’s son, it raised a host of questions. There were the expected questions, of course—the ones debated on news shows and in print columns. Was the prosecution politically motivated?1 Was it really about the “rule of law” and the principle that no one is “above the law,” as the prosecutor claimed?2 Or was it also political, especially since the conviction came on the heels of President Trump’s criminal conviction on thirty-four counts of fraud a few months earlier?3 There was also the question—before President Biden withdrew from the race and well before he pardoned his son and weathered the ensuing backlash4—about how this would impact the President’s reelection bid.5

For us—two criminal-justice scholars—there were other questions. What does the “rule of law” mean when most crimes go unpunished and we give police and prosecutors such broad discretion to determine whom to charge and what to charge them with? And given the nature of the charges in this particular case—three gun-related charges—was this another example of overcriminalization and charge stacking? The three charges, after all, were based on the same underlying evidence: that, while a user of a controlled substance, Hunter Biden purchased a gun from a licensed firearms dealer and possessed that gun for eleven days, from October 12 to October 23, 2018, when his girlfriend threw the gun away.6 Since there was no evidence to suggest he ever used the gun, let alone harmed anyone, the case also raised questions about the criminal law’s turn from the harm principle7 to an embrace of inchoate crimes and pre-crimes.8 There was also the question of race. Many laws that regulate gun ownership were enacted, in part, to address White fears about Black gun ownership.9 Separate and apart from the racial history of gun crimes, Hunter Biden’s drug of choice was crack cocaine, a drug long associated with Black people.10 Suddenly, crack cocaine had a White face. Would that change how people viewed the drug?

But there was also a question that initially escaped us, and probably most observers: was Hunter Biden’s conviction a violation of his right to use drugs?11 This question escaped us because the answer seemed so clear. Right to use drugs? What right? But as David Pozen explains in The Constitution of the War of Drugs,12 such questions once would have been central to critiques of a case like Hunter Biden’s. And those questions are still worth asking today.

Pozen’s insightful new book reveals a blind spot in our conceptions of the war on drugs. And we say this as scholars who have written extensively about the drug war and the role of race in policing.13 In part, the gap Pozen fills has to do with his particular academic background. Rather than taking on the war on drugs from the viewpoint of someone who practiced criminal law, or who teaches or writes on criminal law or procedure, Pozen comes at the drug war from a fresh, substantive-constitutional-law perspective. In doing so, Pozen reveals what he rightly describes as “a lost history of constitutional challenges” to drug laws, as well as the early assumptions that shaped those challenges.14 For example, prior to the Supreme Court’s decision in Crane v. Campbell in 1917,15 “judicial precedent abounded for the proposition that the right to possess alcohol for private consumption was an inalienable right,”16 and Pozen avers that most lawyers “took it as given that the Constitution [protected] drug users” as well.17 Confronted with the rise of prohibitions and enforcement, litigants in the 1960s and 1970s claimed that the criminalization of personal drug use in the home interfered with their constitutional right to privacy.18 They further argued that criminalization amounted to cruel and unusual punishment in violation of the Eighth Amendment,19 denied them their implied right to pursue happiness,20 and violated the freedom of religion and freedom of thought.21 Scholars even suggested that the criminalization of drug use might violate the right to travel, since taking drugs could be on par with taking a “trip.”22 As Pozen points out, the 1960s and 1970s were, in many ways, “a time of constitutional ferment and fluidity in the area of drug regulation. Constitutional law had shielded alcohol users from moralizing persecutors before; perhaps it would do something similar for users of marijuana, cocaine, and other substances widely understood to be more benign than booze.”23

To be sure, most of these challenges failed. But what Pozen brings to our attention is the fact that these challenges were made and, even more importantly, that a number of them succeeded. At least for a while. The transience of those successes also presents an interesting story. Because it is not just that “the tidal wave [of successes] was swept back to sea.”24 Nor is it simply that the decisions ruling in favor of recreational drug users were “overturned, minimized, or ignored by later courts.”25 It is also the erasure. How is it that, in the space of a generation, the “possibility of constitutional drug rights moved from the mainstream to the margins”?26 And how is it that the two of us, who have spent most of our academic careers writing about the war on drugs and mass incarceration, were for the most part unfamiliar with this history? And it is not just us: as Pozen writes, this period of “constitutional ferment” is now “unfamiliar even to most constitutional scholars.”27 Now, “the very notion of drug rights . . . seem[s] strange, even absurd, to many lawyers, to the detriment of both historical knowledge and contemporary advocacy.”28 Still, all this raises the question of how. How is this history absent from law-school curricula and, specifically, criminal-law casebooks, which already give drug crimes short shrift?29 What explains this “constitutional amnesia”?30 And at a time when, as Pozen puts it, “Americans are accustomed to seeing [the Constitution] at the center of debates over civil liberties and civil rights,”31 how is it that when it comes to drug advocacy, the Constitution is, well, missing in action?32

Of course, there’s much more to Pozen’s book, which is why we begin this Review, in Part I, with an overview. But from there, we turn to some of the things the book misses or obscures. Early on, Pozen makes clear that his book does not “tell a tale of heroes and villains.”33 In Part II, we push back on that decision and reveal a key aspect that Pozen’s choice obscures: the legal academy’s silence and consequent complicity in the failure of constitutional challenges to drug prohibitions—a complicity that was likely further enabled by the academy’s racial homogeneity.

In Part III, we dig deeper into race. While we applaud Pozen for noting the importance of race in the history of drug regulation and constitutional challenges, there is an aspect he misses that is vital to understanding the war on drugs. It is not only that race played a role in determining which drugs were criminalized or which users and sellers were prosecuted; it is also that drug criminalization fit into a larger race-making project. It was a continuation of this country’s efforts, in the face of claims of equality, to mark some people as “more equal than others.”34

The heart of this Review, however, is in Part IV. There, we take on Pozen’s primary contention—that the courts could have enshrined “[l]egal protections for nonviolent drug users” in constitutional law—and the reasons he offers for why judges ultimately shrank from doing so.35 Our discussion stretches Pozen’s theme in three directions. First, we apply Pozen’s lens to a part of the Constitution central to the drug war but notably absent from his narrative: the Fourth Amendment. Second, we extend Pozen’s critique beyond drugs, highlighting the courts’ passivity in the face of the panoply of post-1960s “tough on crime” policies, of which the drug war was only a part. Third, we suggest that the cases Pozen champions did not foreshadow a substantially different response to drug prohibitions but were instead minor variations on a theme of judges saying “yes” to the drug war. Our overall discussion suggests that Pozen’s focus on a narrow aspect of judicial decision-making, while informative, requires contextualization within the broader story of American courts, crime, and race. This additional context supplements and complicates Pozen’s insightful conclusions. Finally, in our Conclusion, we gesture toward the implications of Pozen’s historical findings for the present.

Before we turn to Part I, there is one more thing to say. Since one of us is a firm believer that “subject position is everything in my analysis of the law,”36 let’s just say that one of us has smoked, inhaled, imbibed, and more. I know of what I speak. With that out of the way, on to the arguments.