Does the Constitution Protect the Right To Get High?
The Constitution of the War on Drugs, by David Pozen, Oxford University Press, 304 pages, $27.95
When the Supreme Court overturned Roe v. Wade in 2022, Justice Samuel Alito’s majority opinion mocked “attempts to justify abortion” by asserting “a broader right to autonomy.” After all, he wrote in Dobbs v. Jackson Women’s Health Organization, that concept “could license fundamental rights to illicit drug use, prostitution, and the like.” Alito thought it was obvious that “none of these rights has any claim to being deeply rooted in history.”
Alito’s blithe dismissal of a fundamental right to consume psychoactive substances reflects “constitutional amnesia,” Columbia law professor David Pozen argues in The Constitution of the War on Drugs. It overlooks both the controversy provoked by the nation’s early anti-drug laws and the hope inspired by subsequent legal assaults on prohibition. All of those challenges ultimately fizzled. But Pozen sees promise in “a model of rights review known as proportionality,” which asks whether the burdens imposed by the drug war are commensurate with the corresponding benefits.
While some foreign courts have embraced that approach, it probably would not make much headway in U.S. courts, partly because it blurs the line between judges and legislators. Pozen’s book nevertheless makes an important contribution to the drug policy debate by reminding us of the history that Alito ignored.
Alito was assessing the scope of the 14th Amendment, which bars states from abridging “the privileges or immunities of citizens.” Although that clause is the most historically plausible source of rights that states must respect, the Supreme Court has instead relied on the amendment’s command that states may not “deprive any person of life, liberty, or property, without due process of law.” In applying restrictions to the states, the Court typically has resorted to “substantive due process,” which encompasses rights that are “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition.” Those rights include but are not limited to rights explicitly recognized in the first eight amendments.
Applying that test to abortion rights, Alito cited “the unbroken tradition of prohibiting abortion on pain of criminal punishment” prior to 1973. Leaving aside the accuracy of that gloss, anti-drug laws clearly do not have such a pedigree. When the 14th Amendment was ratified in 1868, state-level alcohol prohibition was a recent experiment that was legally contentious and generally deemed a failure. Americans were free to buy and consume drugs that are now “controlled substances” without a prescription, a situation that persisted into the early 20th century. “For the first 100 years of the nation,” the longtime marijuana activist Dale Gieringer noted in response to Alito’s scoffing, “the right to use drugs was taken for granted.”
That sentiment was still prevalent in the late 19th and early 20th centuries. “If you asked a typical lawyer at the turn of the twentieth century whether the government could ban the possession or consumption of an intoxicant like alcohol, the answer would have been no,” Pozen writes. “The federal government couldn’t do so, it was understood at the time, because the ‘police power’ to regulate in the interest of public health, safety, and welfare had been reserved by the Constitution to the states.” And although “state governments had broad discretion to legislate under their police power,” Pozen notes, “many courts” held that such laws “must not interfere with purely private behavior.”
In 1887, when the California Supreme Court blocked enforcement of a local ordinance that prohibited gatherings for the purpose of smoking opium, the
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