Constitutional Failure

The Constitution of the War on Drugs. By David Pozen. Oxford: Oxford University Press. 2024. Pp. 292. $27.95.

Introduction

Years from now, when historians look back at the legal system in the last decades of the twentieth century and the first of the twenty-first century, the war on drugs should loom large in their understanding. A stunning number of people have been arrested, prosecuted, convicted, and imprisoned for drug crimes. The war on drugs has disproportionately punished individuals of color. Without doubt, the war on drugs affected—I would say distorted—many areas of the law. It continues to have enormous human and financial costs.¹For background on the scope and impacts of the war on drugs, see pp. 1–3, 11–17.

In The Constitution of the War on Drugs, Professor David Pozen²Charles Keller Beekman Professor of Law, Columbia Law School.
seeks to answer an important question that has not previously been addressed: Why did the Constitution fail to limit the war on drugs? His premise is that the war on drugs was a “travesty” (p. 16) and a “spectacular failure” (p. 139). His book seeks to explain why the Constitution did not save us from even the worst excesses of the war on drugs.

Both the questions Professor Pozen asks and the answers he provides are important. He focuses on constitutional doctrines and explains why the constitutional principles with theoretical promise—due process, federalism, equal protection, humane and proportionate punishment, and freedom of speech and religion—failed to successfully curb the war on drugs.

The book is original in its aims and analysis, insightful in its examination of constitutional doctrines, and beautifully written. It provides a terrific history of how the law has classified and sanctioned the use of illegal drugs, and his research is undoubtedly thorough. One of the strengths of the book is its careful examination of state constitutional law—a vein of research that does not get enough attention.³See, e.g., pp. 82–83 (discussing the Minnesota Supreme Court’s equal protection analysis under the Minnesota Constitution in State v. Russell, 477 N.W.2d 886 (Minn. 1991)).

Professor Pozen describes the “primary subject” of the book as an examination of the constitutionality of the war on drugs from the perspective of “the logic of the law and the ways it shapes and constrains paths of change” (pp. 6–7). Rather than pursuing an “externalist” or “realist” inquiry into the social, political, and cultural factors that explain significant amounts of constitutional doctrine, Professor Pozen largely focuses on reasoning internal to doctrine and the legal process.⁴Occasionally, Professor Pozen does discuss developments in constitutional doctrines from a realist perspective. An example is his examination of why both equal protection challenges and federalism challenges failed to curb the federal war on drugs. As one explanation, Professor Pozen points to the New Deal settlement, which was an agreement that allocated economic regulatory authority to the political branches and significantly curtailed equal protection review. See pp. 47–48, 59.
Yet, I wonder if the analysis would benefit from more consideration of these realist factors. Professor Pozen shows how constitutional doctrines failed to limit the war on drugs, but he does not fully examine the why. What explains why constitutional doctrines became so cramped, affecting not only drug cases, but every area of constitutional law? This question is important in assessing the last chapter of Professor Pozen’s book, where he tries to offer direction for future challenges to the war on drugs. Without more of a sense of why constitutional doctrines have failed, it is difficult to anticipate what might succeed in the future.

This Review has three parts. First, I summarize Professor Pozen’s argument as to the failure of constitutional doctrines. His account not only explains why challenges to the war on drugs failed but also provides a superb summary of constitutional law over the last half century and how it has evolved in a very conservative direction. My one criticism of this account is that he largely omits a discussion of criminal procedure: specifically, how Supreme Court decisions have empowered the police in the war on drugs.⁵To be fair, Professor Pozen states in his introduction that his “focus is on substantive challenges to the drug laws themselves—challenges to the prohibitions and penalties that the laws impose, not to the procedures used to enforce them.” P. 13. And Professor Pozen does implicitly refer to the Fourth Amendment, such as in his reference to Whren v. United States, p. 75 n.342, and his discussion of the Warren Court’s tendency to “skimp[] on substance” and “splurge on procedure.” Pp. 113–14. Nevertheless, this Review offers a significantly expanded discussion of the Fourth Amendment and suggests that Professor Pozen’s analysis might have focused on this more fully.

Second, I raise the realist question of why constitutional law has changed and failed in the way Professor Pozen describes. My answer is, in large part, an obvious one, but one that cannot be stressed enough: It lies in the presidential elections that have created a Republican-appointed majority on the Supreme Court since 1971. The Court has been driven not by interpretive methodology or respect for precedent but by conservative ideology. And conservatives overall have been pro-prosecution and the drivers of the war on drugs. Most importantly, conservatives have limited the constitutional doctrines that might have been used to challenge government actions in the war on drugs.

Finally, I examine Professor Pozen’s proposed solutions. As I read the book, I kept wondering what his ideal drug policy would be. He clearly favors legalization of marijuana, which now has widespread support. But how to address opioids remains an open question.

In the last chapter, Professor Pozen offers musings on two paths forward: using originalism to challenge government actions in the war on drugs (pp. 161–65) and encouraging the Court, as well as state high courts, to adopt proportionality analysis (pp. 165–72, 176). Both strategies are intriguing, but I am skeptical that a Court that is otherwise unwilling to limit the war on drugs would do so through these methods. In other words, Professor Pozen assumes that if the arguments and doctrines change, the results will too. But so long as the justices (and other judges) are not inclined to limit the war on drugs, I am skeptical that originalist arguments or proportionality analysis will make much of a difference.

Ultimately, the war on drugs will end only when there is a widespread sense—in legislatures, in courts, and among the public—that Professor Pozen’s premise is correct: Criminalization is a spectacular failure. Until that happens, I am dubious that the Constitution will provide better answers than it has before.

I. How the Constitution Failed

The core of Professor Pozen’s analysis, which spans the first five of seven chapters, examines the constitutional doctrines that might have been used to successfully limit the war on drugs. He does a masterful job of examining the constitutional law in each area, showing what its promise might have been, tracing its history, and ultimately showing its failure. What is striking is that the Court did not use these constitutional doctrines to limit the war on drugs. Rather, conservative courts constrained the scope of constitutional protections generally, which then kept these doctrines from being used to challenge government actions in the war on drugs. Professor Pozen looks at five areas: due process, federalism, equal protection, humane and proportionate punishment, and freedom of speech and religion. As to each, he offers important insights related to constitutional law generally and the war on drugs specifically. As mentioned above, he largely omits a sixth area of significance in the war on drugs: the Fourth Amendment and law enforcement authority.

Due process. The most effective way to have ended—or at least greatly limited—the war on drugs would have been for the courts to find that the autonomy protected by the liberty of the Due Process Clause included a right to use drugs. Professor Pozen explains that “[p]unitive drug policies are hard to reconcile with liberty, privacy, and the pursuit of happiness” (p. 20). He points, as an exemplar, to the Alaska Supreme Court’s 1975 decision in Ravin v. State,⁶Ravin v. State, 537 P.2d 494 (Alaska 1975).
which found that the right to privacy under the state constitution encompassed a right to have small amounts of marijuana, so long as the possession was in a “purely personal, non-commercial context in the home.”⁷Pp. 34–36 (quoting Ravin, 537 P.2d at 504.))
In a particularly interesting discussion, he also points to decisions before Prohibition that protected a liberty right to have intoxicating beverages (pp. 21–24).

Professor Pozen argues that Griswold v. Connecticut, which found a right to privacy in the Constitution,⁸Griswold v. Connecticut, 381 U.S. 479 (1965).
provided an “opening” for litigants to argue that there is a constitutional right to possess and use drugs (pp. 24–30). I think, though, that Professor Pozen is too forgiving in his reading of Justice Douglas’s majority opinion in Griswold. Justice Douglas explicitly rejected finding privacy rights in the Due Process Clause and, instead, said that they were based on the penumbras of the Bill of Rights.⁹Id. at 484–85.
Although Professor Pozen notes a belief held by some in the legal community—that Griswold’s privacy holding would apply to personal possession of marijuana¹⁰For example, Professor Pozen cites to a range of sources, including academic articles, legislative reports, and musings from former Supreme Court Justice Tom Clark, all of which express belief that the majority opinion in Griswold could apply to personal possession of marijuana. Pp. 28–30.
—Justice Douglas’s penumbras and emanations approach was immediately ridiculed and, ultimately, provided a poor foundation for protecting autonomy rights.¹¹See, e.g., Robert G. Dixon, Jr., The “New” Substantive Due Process and the Democratic Ethic: A Prolegomenon, 1976 BYU L. Rev. 43, 84 (remarking that in Griswold, Justice Douglas “skipped through the Bill of Rights like a cheerleader—‘Give me a P . . . give me an R . . . give me an I . . . ,’ and so on, and found P-R-I-V-A-C-Y as a derivative or penumbral right”).

Roe v. Wade¹²Roe v. Wade, 410 U.S. 113 (1973).
certainly built upon Griswold, but I also wonder if the highly polarized national debate over abortion, especially with a Court that became increasingly conservative over time, doomed the expansion of privacy rights. Certainly, by 1997, when the Court decided Washington v. Glucksberg and rejected a privacy right to physician-assisted death,¹³Washington v. Glucksberg, 521 U.S. 702 (1997).
the window for using due process to limit the war on drugs was closed.

Professor Pozen also makes a point about due process and equal protection that has often been overlooked: Rigid tiers of scrutiny made it easier for courts to reject challenges to drug laws (p. 62). Although challengers to drug laws mustered a few isolated successes under the Equal Protection Clause,¹⁴E.g., pp. 82–85 (discussing State v. Russell, 477 N.W.2d 886 (Minn. 1991), and United States v. Clary, 846 F. Supp. 768 (E.D. Mo. 1994)).
the federal judiciary was largely unreceptive to litigation strategies that triggered analysis under a tiers-of-scrutiny framework (p. 84). When courts did not find a fundamental right (in the case of a due process challenge) or a racial classification (in the case of an equal protection challenge), the law received rational basis review, and the government was sure to win.¹⁵I very much agree with Professor Pozen’s critique of the rigid tiers of scrutiny and have previously written:

These levels of scrutiny allow the Court to justify rulings in favor of the government with little analysis of the competing constitutional interests. To explain a denial of a constitutional claim, the Court need only state why the interest involved warrants analysis under the rational basis test; that is, why the matter does not rise to the level of a fundamental right or a suspect classification. Since these are viewed as quite limited categories, the Court can conclude with relatively minimal reasoning why new interests do not meet the high threshold. The Court then can summarily explain why the government action is rationally related to a legitimate government purpose.

Erwin Chemerinsky, Foreword: The Vanishing Constitution, 103 Harv. L. Rev. 43, 73 (1989).

Federalism. As Professor Pozen points out, the Supreme Court could have used principles of federalism to strike down federal drug laws. Namely, the Court could have found that federal drug restrictions exceeded Congress’s authority under the Commerce Clause; and that Congress had no enumerated power to enact wide-sweeping drug laws. But post-1937 constitutional principles, such as a very broad reading of the Commerce Clause in Wickard v. Filburn,¹⁶Wickard v. Filburn, 317 U.S. 111 (1942). In Wickard, the Court upheld a federal law that limited the amount of wheat that a farmer could grow for home consumption. The Court said that Congress could act under the Commerce Clause if an activity, taken cumulatively, had a substantial effect on interstate commerce. See id. at 122–25.
made it more difficult to bring successful federalism challenges to drug laws. Indeed, from 1937 until 1995, not one federal law was declared unconstitutional as exceeding the scope of Congress’s powers (p. 47). This obviously closed the door on federalism-based challenges to federal drug laws during this time.

But the post-1937, highly deferential approach to the Commerce Clause ended in 1995. In United States v. Lopez, the Supreme Court invalidated a federal law that banned firearms within one thousand feet of a school on the ground that it exceeded the limits of the commerce power.¹⁷United States v. Lopez, 514 U.S. 549 (1995).
Five years later, in United States v. Morrison, the Court declared a provision of the Violence Against Women Act that authorized victims of gender-motivated violence to sue their assailants unconstitutional as exceeding the scope of the commerce power.¹⁸United States v. Morrison, 529 U.S. 598 (2000).
This opened the door for the Court to consider federalism challenges to federal drug laws. Some commentators on both sides of the political aisle believed that a retrenchment of the commerce authority was looming (pp. 47–48). But as Professor Pozen explains, drugs were different,¹⁹Some commentators have theorized that the subject matter of Raich led Justices Scalia and Kennedy to defect from the conservative block and reverse their positions from Lopez and Morrison. See p. 48.
and so the Court snuffed out any hope of a federalism challenge to federal drug laws in Gonzales v. Raich.²⁰Gonzales v. Raich, 545 U.S. 1 (2005).
The Court held in Raich that Congress may use its power to regulate commerce among the states to prohibit the cultivation and possession of small amounts of marijuana for medicinal purposes.²¹Id. at 5, 22.
Although California had created an exemption to its state marijuana laws for medical uses, no such exemption exists in federal law. In a six-to-three decision, with the majority opinion written by Justice Stevens, the Court upheld the federal law. Justices Kennedy, Souter, Ginsburg, and Breyer joined the majority opinion, and Justice Scalia concurred in the judgment. Justice Stevens explained that, for almost seventy years, Congress had the authority to regulate activities that have a substantial effect on interstate commerce.²²Id. at 15–19.
The Court found that even locally grown marijuana that was used for medicinal purposes in compliance with state law, looked at cumulatively, had a substantial effect on interstate commerce.²³Id. at 21–22.
As such, Congress could constitutionally regulate small-scale growth of marijuana under the Commerce Clause.

Why did the liberal justices, who even expressed sympathy to the challengers, uphold the federal law? I always have believed that they were worried that further narrowing the scope of Congress’s commerce power would jeopardize crucial federal laws in areas such as civil rights or the environment.²⁴Professor Pozen notes that “[t]he jurisprudential imperative, for Stevens and his liberal colleagues, was to put a stop to the Court’s federalism revolution and shore up the New Deal settlement.” P. 48.
For them, Raich was much less about marijuana or the war on drugs and far more about the scope of federal power.²⁵I do not share Professor Pozen’s sense that “[t]he current constitutional equilibrium is precarious.” P. 49. He is referring to the tension between the supremacy of federal law, the federal Controlled Substances Act, and the anticommandeering principles that mean Congress cannot force states to stop legalizing marijuana. This has been the equilibrium for many years, beginning with states allowing medical use of marijuana that is not allowed under federal law. The federal government can outlaw something and enforce its laws, but that does not mean that states must do so. Forcing state legislatures to pass legislation or commanding state law enforcement according to federal wishes violates the Tenth Amendment. See, e.g., Murphy v. NCAA, 584 U.S. 453 (2018) (holding that the Tenth Amendment prevents Congress from commandeering state legislatures); New York v. United States, 505 U.S. 144 (1992) (same); Printz v. United States, 521 U.S. 898 (1997) (holding that the Tenth Amendment prevents Congress from commandeering state executive officers).

Equal protection. Professor Pozen powerfully shows that drug laws and their enforcement should have been found to be racially discriminatory. He observes: “Black and white Americans consume and sell illicit drugs at comparable rates. Yet drug-related arrest rates have been three to six times higher for Blacks than for whites [since the 1970s]. Black drug arrestees are also far more likely than their white counterparts to be prosecuted and incarcerated” (p. 71). He rightly points to the disparities in punishment between crack and powder cocaine—disparities as great as one hundred-to-one—with enormous racial consequences in the length of punishments (p. 80).

As Professor Pozen explains, the Supreme Court decisions that required proof of discriminatory intent to demonstrate a racial classification—beginning with Washington v. Davis in 1976²⁶Washington v. Davis, 426 U.S. 229 (1976).
—doomed the use of equal protection in challenging this discrimination (pp. 74–75). With rare exceptions, which Professor Pozen discusses (pp. 82–85), courts readily dismissed equal protection challenges to drug laws and their administration.²⁷I believe the Court was wrong in its failure to recognize discriminatory impact as a basis for establishing a racial classification. See Erwin Chemerinsky, No Democracy Lasts Forever: How the Constitution Threatens the United States 146–51 (2024); Mario L. Barnes & Erwin Chemerinsky, What Can Brown Do for You?: Addressing McCleskey v. Kemp as a Flawed Standard for Measuring the Constitutionally Significant Risk of Race Bias, 112 Nw. U. L. Rev. 1293 (2018).
This is a place where constitutional doctrines that were developed outside of the drug context doomed the ability to challenge racial discrimination in the administration of drug laws.

Humane and proportionate punishment. Professor Pozen is correct that the Court could have used the Eighth Amendment’s Cruel and Unusual Punishment Clause to limit the length of sentences imposed for drug crimes (p. 102). Over a century ago, in Weems v. United States, the Supreme Court held that the Eighth Amendment prohibits “greatly disproportioned” sentences and stated: “[I]t is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.”²⁸Weems v. United States, 217 U.S. 349, 367, 371 (1910).

On some occasions, the Court has declared sentences unconstitutional for being “grossly disproportionate.”²⁹For example, in Coker v. Georgia, the Court held that “a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.” Coker v. Georgia, 433 U.S. 584, 592 (1977). In Solem v. Helm, the Court held that it was grossly disproportionate to sentence a person to life imprisonment for passing a bad check for 0 because of six prior nonviolent offenses. Solem v. Helm, 463 U.S. 277 (1983). Justice Powell, writing for the Court, observed that “the Court has continued to recognize that the Eighth Amendment proscribes grossly disproportionate punishments . . . .” Id. at 288.
But the Court has rarely found a sentence to be cruel and unusual punishment outside of the death penalty context.³⁰See, e.g., Solem, 463 U.S. 277.
Take, for example, Harmelin v. Michigan, a key case where the Eighth Amendment was litigated in the context of the war on drugs.³¹Harmelin v. Michigan, 501 U.S. 957 (1991).
The Court ruled that it was not cruel and unusual punishment to impose a sentence of life without the possibility of parole for possessing 672 grams of cocaine.³²Id. at 961, 994.
Although seven justices endorsed the principle that grossly disproportionate sentences are unconstitutional,³³Id. at 997 (Kennedy, O’Connor, and Souter, JJ., concurring in part and concurring in the judgment); id. at 1009 (White, Blackmun, and Stevens, JJ., dissenting); id. at 1027–28 (Marshall, J., dissenting).
the Court nonetheless upheld the sentence.

In 2003, the Court effectively slammed the door on Eighth Amendment challenges to sentences as being grossly disproportionate. Both Ewing v. California³⁴Ewing v. California, 538 U.S. 11 (2003).
and Lockyer v. Andrade³⁵Lockyer v. Andrade, 538 U.S. 63 (2003).
involved individuals who received lengthy sentences under California’s Three Strikes Law—twenty-five years to life in the former, and fifty years to life in the latter—for shoplifting. But the Court rejected the argument that the sentences were cruel and unusual punishment.³⁶Ewing, 538 U.S. at 30–31; Lockyer, 538 U.S. at 71–72, 77.

To be clear, applying the Eighth Amendment to drug laws would not have ended the war on drugs. But it would have mattered enormously to countless people who served draconian sentences for drug crimes, especially for crimes as simple as possession.³⁷Professor Pozen also explains how Robinson v. California, 370 U.S. 660 (1962), could have been used as a basis for challenging drug laws. P. 92. Robinson held that a state could not punish someone for the status of being an addict. Professor Pozen says, though, that the subsequent decision in Powell v. Texas, 392 U.S. 514 (1968), “is now ‘understood to have all-but-overruled Robinson.’ ” P. 97 (quoting Kate Stith-Cabranes, Criminal Law and the Supreme Court: An Essay on the Jurisprudence of Byron White, 74 U. Colo. L. Rev. 1523, 1539 (2003)). Interestingly, in June 2024, the Court said that Robinson had not been overruled, but it also refused to apply it to declare unconstitutional a city ordinance that made it a crime for unhoused individuals to sleep in public. City of Grants Pass v. Johnson, 144 S. Ct. 2022, 2234 (2024).
But a Court that was very pro-law enforcement was not going to use the Eighth Amendment to find harsh sentences unconstitutional.

First Amendment. Although Professor Pozen shows that there could have been successful challenges to drug enforcement based especially on substantive due process, equal protection, or the Eighth Amendment, I am more skeptical that the First Amendment could ever have been a significantly fruitful basis for constitutional challenges.

Professor Pozen rightly points out that, initially, there were successful challenges to drug laws based on free exercise of religion, but the Supreme Court foreclosed this avenue (pp. 121–22). In Employment Division v. Smith, the Court held that the Free Exercise Clause cannot be used to challenge a neutral law of general applicability.³⁸Emp. Div. v. Smith, 494 U.S. 872, 878–83 (1990).
Specifically, the Court said that a law prohibiting consumption of peyote, a hallucinogenic substance, did not violate the Free Exercise Clause even though such use was required by some Native American religions.³⁹Id. at 882–84.
The Court explained that the state law prohibiting consumption of peyote applied to everyone in the state and did not punish conduct solely because it was religiously motivated.⁴⁰Id. at 885.
In other words, no matter how much a law burdens religious practices, it is constitutional under Smith so long as it does not single out religious behavior for punishment and was not motivated by a desire to interfere with religion.

As Professor Pozen points out, there has been occasional success in using the Religious Freedom Restoration Act to challenge federal drug convictions.⁴¹P. 124. For example, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, the Court used the Religious Freedom Restoration Act to unanimously rule in favor of a religion and against the federal government. 546 U.S. 418 (2006). The case involved a small religion that used a controlled substance in making a tea used in its religious rituals. The Court, in an opinion by Chief Justice Roberts, used strict scrutiny under the Religious Freedom Restoration Act and ruled in favor of the religion, concluding that the government failed to show that keeping this small religion from using the controlled substance would serve a compelling government interest. Id. at 423. And it must be emphasized that the Religious Freedom Restoration Act applies only to the federal government because of the Supreme Court’s decision in City of Boerne v. Flores, 521 U.S. 507 (1997) (declaring the law unconstitutional as applied to state and local governments).
But it is crucial to note that free exercise of religion, even if robustly used by the courts in drug cases, would have provided a very limited tool for constraining the war on drugs.⁴²Indeed, Professor Pozen notes that “Smith stirred elected officials into action,” and, by the advent of the twenty-first century, “something approximating the pre-Smith approach to adjudicating claims of religious exemption had been cobbled together” by combining RFRA, various state statutes imitating RFRA, and state constitutional interpretations of religious exercise clauses. Pp. 122–23. Nevertheless, even under this patchwork attempting to restore strict scrutiny to laws that burdened religion, “the vast majority of drug claims continued to lose.” P. 123.
At most, it would have provided for religious exceptions to drug laws for those who could show sincerely held religious beliefs that required the use of illegal drugs.⁴³See United States v. Ballard, 322 U.S. 78 (1944) (noting that courts may determine the sincerity, though not the truth, of religious beliefs).
Free exercise of religion would not have provided a basis for declaring drug laws facially unconstitutional.

I also am skeptical that freedom of speech under the First Amendment would have succeeded, even with a very liberal Court, as a basis for effectively challenging drug laws. As Professor Pozen explains, one free speech argument would have been that the First Amendment protects freedom of thought, and drugs affect the thoughts people have.⁴⁴Pp. 126–27. Professor Pozen also discusses a potential symbolic speech argument, according to which possession and use of drugs conveys a symbolic message that is unconstitutionally stifled by federal drug prohibitions. Pp. 126–28.
But the problem with this argument is that it confuses a purpose of the First Amendment—protecting freedom of thought and freedom of conscience—with a right protected under that amendment. Although commentators have described “the freedom of thought as a fundamental component of, corollary to, or precondition for the freedom of speech” (p. 127), the Court has never explicitly found a right of the sort Professor Pozen describes.⁴⁵See, e.g., p. 129; State v. Renfro, 542 P.2d 366, 369 (Haw. 1975) (“[T]he Supreme Court has never intimated that freedom of speech attaches to chemical substances which physically affect the workings of the brain . . . .”). But see Stanley v. Georgia 394 U.S. 557, 565 (1969) (“Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”).
It seems a stretch to imagine the Supreme Court ever saying that, since drugs affect thoughts, there is a First Amendment right to use them.

In other words, unlike the other constitutional doctrines Professor Pozen discusses, where the failure was with the Court, for First Amendment jurisprudence, the problem is inherent in the Amendment’s scope.

Criminal procedure. One area Professor Pozen surprisingly largely ignores is the Fourth Amendment. The Supreme Court could have used the Fourth Amendment to limit the ability of the police to stop and search people, thus making it much harder for law enforcement to implement the war on drugs. Quite the opposite—the Court has empowered the police to be able to stop virtually any person at any time and, thus, very much facilitated law enforcement power in the war on drugs.⁴⁶I develop this argument in detail in Erwin Chemerinsky, Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (2021).
No single decision was more responsible in expanding police power to stop individuals with impunity than Whren v. United States in 1996.⁴⁷Whren v. United States, 517 U.S. 806 (1996).
The Court unanimously held that pretextual stops do not violate the Fourth Amendment.⁴⁸Id. at 819.
Because “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred,” the Court upheld the stop. ⁴⁹Id. at 810.

The traffic stop in this case clearly was a pretext. The police had observed the car break a traffic law by turning without a signal, but the officers had no authority to enforce traffic laws and no interest in doing so. No matter, said the Court. The actual motivation of the officers was declared irrelevant.⁵⁰Id. at 813.
So long as the officer has probable cause, or even reasonable suspicion, that a traffic law has been violated, the officer may stop the vehicle.

Practically speaking, this empowers the police to stop anyone at any time. If police officers follow anyone long enough, they will observe a driver changing lanes or making a turn without a signal; the car exceeding the speed limit by a mile an hour or two; or—and this is the easiest for the police officer—the car not stopping long enough, or too long, at a stop sign. It is completely immaterial for Fourth Amendment purposes that the officer’s actual motivation for the stop had nothing to do with traffic enforcement. And once the car is pulled over, the police can order the driver and the passenger out of the car.⁵¹Pennsylvania v. Mimms, 434 U.S. 106 (1977) (holding that police can order the driver out of the car when there has been a traffic stop); Maryland v. Wilson, 519 U.S. 408 (1997) (holding that police can order passengers out of the car).
The police can then search the passenger compartment of the car, including all containers within it.⁵²New York v. Belton, 453 U.S. 454 (1981). Subsequently, the Court said that this ability to search the car does not apply to situations where the car was already pulled over before the officer approached, and the driver and passenger were not near the vehicle. Arizona v. Gant, 556 U.S. 332 (2009).

Whren and other cases granting heightened discretion to law enforcement empowered the police to facilitate the war on drugs. Especially since many Fourth Amendment decisions arose in the drug context, limiting the police could have helped constrain the war on drugs.

II. Why the Constitution Failed

Professor Pozen correctly identifies the results of constitutional failure; I would like to expound on its source. The problem is not necessarily that the Court shaped constitutional doctrine to support drug law enforcement. Rather, the constitutional doctrines that the Court developed did not provide a basis for successfully challenging government actions. The difference is both important and structural. The fault lies with the Court itself and the partisan machinery that determines its makeup. Both conservative and liberal justices have contributed to the jurisprudence that bolstered government actions in the war on drugs. It is thus worth wondering how far any Supreme Court would have gone in the direction Professor Pozen advocates.

Why did constitutional law develop in this way? The answer is clear: A majority of the justices have been Republican appointees since 1971. The doctrines they have developed reflect a conservative ideology, especially in rejecting the protection of nontextual rights under due process;⁵³E.g., Michael H. v. Gerald D., 491 U.S. 110, 121–24 (1989).
requiring proof of discriminatory intent for a violation of equal protection;⁵⁴Washington v. Davis, 426 U.S. 229 (1976) (requiring proof of discriminatory intent); Pers. Adm’r v. Feeney, 442 U.S. 256 (1979) (explaining what a showing of discriminatory intent requires).
rejecting proportional punishments under the Eighth Amendment;⁵⁵E.g., Harmelin v. Michigan, 501 U.S. 957 (1991).
and refusing to create First Amendment exceptions to generally applicable laws.⁵⁶Emp. Div. v. Smith, 494 U.S. 872 (1990) (holding that neutral laws of general applicability do not violate the First Amendment). But see Fulton v. City of Philadelphia, 593 U.S. 522 (2021) (requiring a religious exemption for foster care providers which allowed them to refuse to work with same-sex couples). As some commentators note, Fulton has begun to change the landscape of free exercise jurisprudence by narrowing Smith’s reach. Daniel Benson, Opinion, The Truth about Fulton’s Impact on Religious Freedom, Nat’l Rev. (Apr. 15, 2024, 12:16 PM), https://www.nationalreview.com/bench-memos/the-truth-about-fultons-impact-on-religious-freedom [perma.cc/AU59-PMS8].

It is too easy to regard these developments as inevitable. Quite the contrary, the Court’s makeup is largely fortuitous—a result of the timing of vacancies on the Court and who happened to occupy the Oval Office. Between 1960 and 2020, Republican presidents served for thirty-two years, and Democratic presidents served for twenty-eight years. Republican presidents picked fifteen justices during this time.⁵⁷Supreme Court Nominations (1789-Present), U.S. Senate, https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm [perma.cc/L3TC-CEJ5].
Democratic presidents chose just eight.⁵⁸Id.
To illustrate this discrepancy: President Donald Trump selected three justices in four years, while the prior three Democratic presidents—Jimmy Carter, Bill Clinton, and Barack Obama—picked only four justices, despite serving a combined twenty years in the White House.⁵⁹Id.

This account, though accurate, does not fully convey the genesis of the current Court. Part of this story is about a terminally ill Chief Justice Rehnquist, who refused to acknowledge the severity of his condition, pressuring Justice O’Connor to resign earlier than she planned.⁶⁰Rehnquist’s Stay on Court Forced O’Connor Out, ABC News (Jan. 23, 2007, 12:31 PM), https://abcnews.go.com/Politics/story?id=2816090 [perma.cc/6F7V-F2MH].
She later expressed regret that she left too soon.⁶¹Nina Totenberg, The Personal Sandra Day O’Connor: A Backstage Force and Front Stage Star, NPR (Dec. 1, 2023, 3:15 PM), https://www.npr.org/2023/12/01/1216458808/the-personal-sandra-day-oconnor [perma.cc/4JZQ-JWN9] (“With the knowledge of hindsight, O’Connor regretted her decision to leave the court, telling [a] biographer . . . it was ‘the biggest mistake, the dumbest thing I ever did.’ ”).
The story also involves Senator Mitch McConnell, who, in an unprecedented, brazen display of power politics, kept a seat on the Supreme Court vacant for over a year rather than allow President Obama’s nominee, Judge Garland, to replace Justice Scalia.⁶²Robin Bradley Kar & Jason Mazzone, The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia, 91 N.Y.U. L. Rev. Online 53, 55 (2016).
Judge Garland never got a hearing.⁶³Id.
It involves a hero of the left, Justice Ginsburg, who stubbornly refused to retire when there was a Democratic president and a Democratic Senate to replace her, gambling that her health would hold out. It did not. Her death allowed the Republicans to push through the confirmation of Justice Barrett, who was sworn in as a justice on Tuesday, October 27, 2020, just ten days before the November 7 presidential election.⁶⁴Oath Ceremony: The Honorable Amy Coney Barrett, Sup. Ct. of the U.S., https://www.supremecourt.gov/publicinfo/press/oath/oath_barrett.aspx [perma.cc/4NYA-7UPU].

It is easy to imagine a very different Court—perhaps one less deferential to the war on drugs. If Hubert Humphrey had won the presidential election in 1968 and had appointed four justices in his first two years as President, rather than Richard Nixon, the ideology of the Warren Court would have continued for years (and likely decades). It is easy to imagine that this hypothetical Court would have developed very different doctrines. If John Kerry had won the presidential election in 2004, rather than George W. Bush, and had replaced Chief Justice William Rehnquist and Justice O’Connor with liberals, constitutional law would be very different. If Hillary Clinton had prevailed in the 2016 presidential election and she, rather than Donald Trump, had picked three justices, there would be a predictable liberal majority for the foreseeable future.

There is no way to know if the war on drugs helped elect Republican presidents. To be sure, Richard Nixon campaigned on the need for “law and order” as has every Republican candidate since. Still, the war on drugs—which is nominally over—lingers in campaign rhetoric. And it is important, then, to scrutinize the Court we have.

It may be just as easy to imagine that the war on drugs would have been different if only there had been a more liberal Court. A more liberal Court certainly would have been more willing to use due process to protect rights, would have allowed proof of racial discrimination with a showing of disparate impact, and would have been more willing to find punishments to violate the Eighth Amendment. But perhaps a liberal Court, too, would have been unwilling to rein in the war on drugs. Rulings at the end of the Warren Court­­­—when the Supreme Court was the most liberal it has ever been—provide a basis for pause. As Professor Pozen discusses, in Powell v. Texas, in 1968, the Warren Court significantly backed away from its earlier holding in Robinson v. California that it violates the Eighth Amendment for the government to punish a status as opposed to conduct.⁶⁵Pp. 96–99; Powell v. Texas, 392 U.S. 514 (1968); Robinson v. California, 370 U.S. 660 (1962).
In Robinson, the Court held that the government could not punish someone for being a drug addict, though it could punish possessing or taking illegal drugs.⁶⁶Robinson, 370 U.S. 660.
In Powell, as Professor Pozen explains, the Court significantly eroded Robinson by holding that it did not violate the Eighth Amendment to punish a person for public intoxication.⁶⁷P. 99; Powell, 392 U.S. 514.
The plurality opinion was written by liberal Justice Thurgood Marshall and was joined, among others, by Chief Justice Warren and Justice Black.

The fact that Professor Pozen largely omits the Fourth Amendment is particularly striking since one of the most important decisions empowering the police in the war on drugs was also decided in 1968 by the liberal Warren Court: Terry v. Ohio. Terry held that the police may stop and frisk individuals based on only “reasonable suspicion” instead of probable cause.⁶⁸Terry v. Ohio, 392 U.S. 1 (1968).
It is one of the Supreme Court’s most significant decisions empowering the police—now, it is widely acknowledged that Terry facilitated racial discrimination in policing and furthered the war on drugs.⁶⁹E.g., Jack B. Weinstein & Mae C. Quinn, Terry, Race, and Judicial Integrity: The Court and Suppression During the War on Drugs, 72 St. John’s L. Rev. 1323 (1998).
But it often is forgotten that Terry was decided by the Warren Court. In fact, the majority opinion was written by Chief Justice Warren just a year before he stepped down from the bench. Even liberal heroes like Justices Brennan and Marshall joined the majority opinion. It was an eight-to-one decision with only liberal Justice Douglas dissenting.

The Warren Court handed down Powell v. Texas and Terry v. Ohio in 1968. And in retrospect, the widespread social unrest and rapidly changing political order likely affected the justices. Concerns about crime and violence reached their apex in the late 1960s. Soon before the Court decided Terry, President Lyndon Johnson created a President’s Commission on Law Enforcement and Administration of Justice to address the perception that crime was out of control.⁷⁰Cheryl Corley, President Johnson’s Crime Commission Report, 50 Years Later, NPR (Oct. 6, 2017, 7:00 AM), https://www.npr.org/2017/10/06/542487124/president-johnson-s-crime-commission-report-50-years-later [perma.cc/27M4-MZXG].
Anti-Vietnam War protests took hold nationwide; these protests were a key factor in President Lyndon Johnson deciding in March 1968 not to run for reelection.⁷¹Ron Elving, Remembering 1968: LBJ Surprises Nation with Announcement He Won’t Seek Re-Election, NPR (Mar. 25, 2018, 8:41 AM), https://www.npr.org/2018/03/25/596805375/president-johnson-made-a-bombshell-announcement-50-years-ago [perma.cc/7JQP-RGKP].
1968 was also the year that Richard Nixon ran for president largely on a platform of “law and order” that explicitly targeted the Warren Court’s criminal legal jurisprudence.⁷²Jeffrey B. Morris, The Fiftieth Anniversary of Warren Burger’s Appointment as Chief Justice, Richard Nixon Found. (June 18, 2019), https://www.nixonfoundation.org/2019/06/fiftieth-anniversary-warren-burgers-appointment-chief-justice [perma.cc/4ZHK-P3HZ] (“During [his] Presidential campaign, Nixon had sharply attacked Warren Court decisions that had ‘gone too far in weakening the peace forces against the criminal forces in the country’ . . . .”).
Both Martin Luther King, Jr. and Bobby Kennedy were assassinated in the same year. All of these developments were, of course, situated in a racist reaction to the successes of the Civil Rights Movement.

So even a very liberal Court—and the Court never has been more liberal than it was in 1968—is willing to go only so far to limit law enforcement. The same is true for elected officials. Richard Nixon, Ronald Reagan, and Bill Clinton all unabashedly supported the war on drugs.⁷³Donna Murch, The Clintons’ War on Drugs: When Black Lives Didn’t Matter, New Republic (Feb. 9, 2016), https://newrepublic.com/article/129433/clintons-war-drugs-black-lives-didnt-matter [perma.cc/36JA-9C4M].
Multiple Congresses, as Professor Pozen notes, created the draconian federal drug laws (p. 1), which indicates that there was—and likely still is—great public support for the war on drugs.

III. Can the Constitution Succeed?

If it is questionable whether even a liberal Court would have reined in the war on drugs, one must be skeptical that a very conservative Supreme Court will do so. In the last chapter, Professor Pozen suggests a way forward for the current and future Court to finally act to adopt a sensible drug policy. But the Court will remain conservative for the foreseeable future. Is it realistic to expect it to take Professor Pozen’s suggestions and limit the war on drugs?

I was never sure what Professor Pozen’s ideal drug policy would be. He repeatedly asserts that criminalization of drugs has been a “travesty” (p. 16) and a “spectacular failure” (p. 139). He evidently favors legalizing marijuana (pp. 14–16, 178). But I was left with the question: Does he believe that all drugs should be legalized? What would it mean to treat all drugs as a public health issue rather than a criminal one, as he proposes? For example, as I read the book, I wondered how Professor Pozen would treat opioids. As the Supreme Court recently observed, “Between 1999 and 2019, approximately 247,000 people in the United States died from prescription-opioid overdoses.”⁷⁴Harrington v. Purdue Pharma L.P., 144 S. Ct. 2071, 2078 (2024).
Opioid-involved overdose deaths rose from 49,860 in 2019 to 81,806 in 2022.⁷⁵ Nat’l Inst. on Drug Abuse, Drug Overdose Deaths: Facts and Figures (Aug. 2024), https://nida.nih.gov/research-topics/trends-statistics/overdose-death-rates [perma.cc/KP9D-6JJT].
Professor Pozen does not distinguish among drugs in his analysis. I wish he had acknowledged the toll of opioids and provided some indication of how he believes constitutional law should handle this public health crisis.

In fairness, asking that Professor Pozen outline his ideal drug policy is tantamount to asking him to write a different book. The book that he did write is a wonderful explanation of how the Supreme Court has historically failed to use the Constitution to limit the war on drugs. Yet it also is hard to accept conclusions of abject failure without a sense of what success would be.

In this context, I am skeptical of the reforms he proposes in the last chapter. Professor Pozen offers two suggestions: advocates of drug reform should make originalist arguments to the Supreme Court, and the Court should adopt proportionality analysis as a method of constitutional decisionmaking.

I certainly agree with Professor Pozen that litigants before the Supreme Court—in this and all areas of constitutional law—need to make originalist arguments. To be clear, I think originalism is a terrible approach to constitutional interpretation.⁷⁶See Erwin Chemerinsky, Worse Than Nothing: The Dangerous Fallacy of Originalism (2022).
But the current Court traffics in originalist currency—justices write in originalist terms and are receptive to originalist arguments. Perhaps, in some areas, originalist challenges to drug prosecutions might work.

But I am very dubious that the current Court would use originalism to significantly limit the war on drugs as Professor Pozen advocates. I fear that he assumes that originalist justices will follow originalist methodology even when it produces results they dislike. In other words, he assumes that there is a principled adherence to originalism rather than a Court following conservative ideology. I think it is clear that the Court frequently will abandon originalism when it does not lead to the results it desires,⁷⁷See, e.g., Trump v. Anderson, 144 S. Ct. 662 (2024); Mike Rappaport, The Originalist Disaster in Trump v. Anderson, Originalism Blog (Mar. 5, 2024, 8:00 AM), https://originalismblog.typepad.com/the-originalism-blog/2024/03/the-originalist-disaster-of-trump-v-andersonmike-rappaport.html [perma.cc/G7J5-NURT] (observing that the Anderson decision did not use originalist reasoning). See generally Chemerinsky, Worse Than Nothing, supra note 76.
as the Supreme Court’s decision in the affirmative action case Students for Fair Admissions v. President & Fellows of Harvard College shows.⁷⁸Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023); Kim Forde-Mazrui, Response, Alternative Action After SFFA, 76 Stan. L. Rev. Online 149, 155–58 (2024) (discussing the original meaning of the Fourteenth Amendment); see also id. at 157 (“[T]he original meaning of the Fourteenth Amendment probably did not authorize courts to invalidate race-neutral laws designed to benefit racial minorities . . . .”).

For example, he argues that the Court “might invigorate the Eighth Amendment’s Cruel and Unusual Punishment Clause” (p. 162). I am skeptical that a politically conservative Court would be so inclined, even when faced with originalist arguments. There is certainly no indication from any of the conservative justices that they would entertain such changes. Likewise, Professor Pozen notes that the Court could revive the Privileges and Immunities Clause as a source of rights (p. 163). But if the Court does so with an originalist approach, it is hard to see how they would find laws prohibiting drugs to violate the Fourteenth Amendment. And I worry greatly about his suggestion of limiting Congress’s commerce power (p. 162) because, even if it would lead to desirable results in the area of drug laws, it would put countless other desirable laws, such as laws protecting the environment and civil rights, in jeopardy.

Professor Pozen’s other suggestion is that the Court shift away from the levels of tiers-of-scrutiny framework and adopt proportionality analysis instead. His is not the first call for proportionality analysis.⁷⁹For example, Justice Breyer’s concurrence in Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000), advocated use of proportionality analysis in First Amendment cases. Justice Breyer pointed out that other courts, including the European Court of Human Rights and the Supreme Court of Canada, use proportionality analysis. Id. at 403 (citing Bowman v. United Kingdom, 26 Eur. Ct. H.R. 1 (1998), and Libman v. Quebec (Att’y Gen.), [1997] 3 S.C.R. 569 (Can.)).
But there is no indication that a majority of the justices are inclined to scrap the levels of scrutiny and go in this direction. To the contrary, to the extent that justices are uncomfortable with balancing,⁸⁰See Nat’l Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023) (including several justices expressing dislike for using a balancing test under the Dormant Commerce Clause).
proportionality analysis is problematic and is unlikely to prevail. Indeed, the Court’s conservatives have doubled down on originalism, including in their Second Amendment cases,⁸¹N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (commanding an originalist interpretation of the Second Amendment); see also Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale L.J. 99 (2023) (discussing difficulties with Bruen’s interpretive methodology).
making any shift to proportionality highly unlikely.

Even if the Court adopted proportionality analysis, I also am skeptical that this new approach would make the Court more likely to limit the war on drugs. I do not deny the importance of legal tests, but I also think that decisions in the Supreme Court are much more likely to reflect the ideological views of the justices than the mechanical application of any legal test. How the Court balances competing interests is all about who is on the bench and what they value. For the last half century, the Court has been supportive of the war on drugs and not inclined to limit government power. This attitude—not the legal test applied—explains the Court’s failure to put constitutional limits on the war on drugs. In short, shifting from tiers of scrutiny to proportionality analysis seems unlikely to change the results in many cases.

Conclusion

Professor Pozen is undoubtedly correct in his conclusion that the Constitution failed to limit the war on drugs. I think there is a simple explanation: A majority of the justices did not want to use the Constitution to do so. If they were inclined, they certainly could have done it. But the Court’s consistent support for law enforcement, and perhaps even the justices’ support for the war on drugs, meant that the Supreme Court was not going to use the Constitution to constrain government power in this realm.

This, though, undermines Professor Pozen’s musings about potential ways the Constitution could limit the war on drugs. If there is ever a Court that wants to restrict the war on drugs, it can do so. But until and unless there is a majority on the Court to do this, the judiciary will not be the answer. The answer must, as Professor Pozen acknowledges,⁸²See pp. 173–74.
come from an effective social movement. Legalization of marijuana is one paradigmatic example, but how legalization could play out for other drugs (or whether it should) remains to be seen.

Professor Pozen has written a brilliant book about how constitutional doctrines have failed to counter the war on drugs. But these doctrines failed because of the justices and judges, not because of anything intrinsic to the Constitution. They failed because of public attitudes about drugs and because of politicians who never want to seem soft on crime. The war on drugs is likely to continue regardless of the Constitution, because it is a matter of social, rather than constitutional, failure.

* Dean and Jesse H. Choper Distinguished Professor of Law, University of California Berkeley School of Law.