← The Lawfare Podcast
Loading summary
Transcript61 lines
- [00:00]
A
The market's uncertain, revenues tight and hiring on hold. That's why results driven companies are using upwork to keep work moving. Go to upwork.com today and start hiring proven freelance talent fast. No bulky overhead, no rigid long term contracts. Just the right expert right when you need them. Work smarter and faster with Upwork. Go to Upwork.com now and find your freelance expert. That's Upwork.com post a job for free and get started today. Group health insurance can put businesses in a tough position. Now a new form of employer coverage called an ICHRA can help. Unlike group insurance, ichras offer predictable costs and personalized health plans. Learn more@ambetterhealth.comichra.foreign I'm Isabella Roya, intern at Lawfare, with an episode from the Lawfare archive for September 28, 2025. As of this recording on September 25, the US military has carried out three lethal strikes on boats from Venezuela in the southern Caribbean. The White House has asserted that these boats were engaged in drug trafficking and manned by members of the Trende Aragua gang, whom the president has referred to as narco terrorists. The use of lethal military force against civilian drug traffickers has raised questions under both international and constitutional law. For today's archive, I picked an episode from May 10, 2024, in which Jack Goldsmith sat down with David Posen, author of the Constitution of the War on Drugs. They discussed the constitutional history of the non military initiatives conventionally known as the War on drugs, why the drug war has been comparatively unrestrained by doctrines about limited federal power, the Equal Protection Clause, or the Eighth Amendment, how decriminalization would affect the drug war's constitutionality, and more.
- [02:07]
B
It's the Lawfare Podcast. I'm Jack Goldsmith of Harvard Law School with David Posen of Columbia Law School.
- [02:14]
A
I try to tell a story about how the kind of constitutional culture, as well as the institutional structure of how we resolve constitutional claims all lines up against drug challengers in a way that really reveals something about the limits of common law as a tool for social reform.
- [02:32]
B
Today we're talking about David's new book, the Constitution of the War on Drugs. David, your book examines several elements of the relationship between the Constitution and state and federal drug prohibitions. And one claim, and you make many claims about this relationship, but one claim is that constitutional law can help explain the historical evolution of the drug war and, and this is more surprising, its staying power. So can you just, can you just explain what that means?
- [03:03]
A
Sure. At various points in U.S. history, constitutional law has shaped how drug Enforcement and drug policy making happened. So one obvious example is in the late 1800s and early 1900s, constitutional doctrine suggested that the US Congress did not have the authority to regulate drugs directly. The commerce clause revolution hadn't happened yet. It was before the New Deal. And so that pushed the enforcement project over to the states. And then in the early 1910s, the tax power was liberated before the commerce power to allow the federal government to get a foothold in drug regulation. So the reason why we see our early federal drug laws taking the form of tax measures is constitutional doctrine. The Marijuana Tax act was the leading federal law on marijuana all the way up till 1970 and then in more recent periods. The book claims that constitutional law has legitimated drug policy by giving it a pass on grounds of liberty, privacy, racial equality, government rationality, cruel and unusual punishment, and so forth. And that had more courts gone along with the effort to constitutionalize any number of aspects of drug rights, the drug war would have looked different and would have been more humane and evidence based, most likely.
- [04:24]
B
Okay, so let's unpack some of that and we'll start with basics. So what are these drug policies, these modern drug policies you're talking about? Walk us through the modern prohibitionist movement, if you want to call it that. And what drugs are we talking about? What are the major laws and what is the drug war? Just give us that kind of the kind of policy background.
- [04:46]
A
Great. At the legal level, the key law here federally is the Controlled Substances act, which is enacted in 1970 under the Commerce power and is the framework statute for drug regulation federally. It adopts an ethic of what I call punitive prohibitionism. That is, drugs are to be regulated not through taxing, education, age requirements, zoning, all the public health strategies out there to try to limit dangerous drug behaviors, but rather through a criminal regime which imposes a complete ban on many substances and ties it to harsh criminal penalties that will be familiar to many people. But the Controlled Substance act has analogs in all the states as well. They all bought into a punitive prohibitionist model. The drugs at issue are, you know, hundreds of psychoactive substances are scheduled under these laws. They break them out into categories or schedules based on their perceived dangerousness and medical utility. So Schedule 1 is the most highly restricted schedule. And we've had a debate recently about marijuana's position within it. But I basically, I try to say in the book, the details of drug law and drug enforcement have varied a lot over the course of the last hundred odd years. And the constitutional issues, however, are more basic and don't really turn on the niceties of this or that, you know, phase in drug, in drug policy making. The key questions that the book examines are whether and under what conditions the government can prohibit and penalize personal drug behaviors. And that question has been pertinent, you know, for, for 100 odd years. So in other words, I try to abstract away a bit from the, the specifics of drug policymaking in any given little window.
- [06:46]
B
Okay, I want to come back later and press you on whether it matters which drugs we're talking about. But we'll come back to that one more preliminary point. This is not the focus of your book, but the critique of modern drug policy is not the focus of your book, but it's kind of the assumption of your book. So could you just tell us your view of the failures of modern drug policy? Just the general critique.
- [07:12]
A
Yeah, here I claim no novelty. I just try to tap into the social scientific consensus that the drug war, understood as this punitive prohibitionist project, has failed. It's had obvious costs in terms of personal liberty and in terms of racial justice and incarceration. It's also failed on its own terms insofar as it was meant to reduce rates of drug overdose, drug addiction, drug related crime. It has done none of that. And in fact it's. It's much more plausibly done the opposite. That is, the drug war is itself criminogenic and itself produces more dangerous drug behaviors. So that, that tees up the puzzle that the book wants to explore, which is if it's true that the drug war has been so draconian, discriminatory and misguided, and a failure on any plausible definition of failure, where did constitutional law go? Why didn't it engage more fruitfully with this project when some of the key tropes of the modern drug reform movement, individual liberty, racial equality, rational government, decision making, are the central tropes of modern constitutional law. So it's that absence that the book wants to interrogate. I'll just say quickly on your point about the answer may be varying by drug. I agree. And when we're talking about different constitutional claims that have been made, they end up getting hitched to certain drugs rather than others. For example, claims based on how people who are addicted to drugs maybe should have a special status under the 8th amendment. Heroin was really the key drug center there. Claims about personal privacy and liberty tended to be more focused on marijuana, thought to be a softer drug, and less dangerous and religious liberty claims on psychedelics like peyote. So there's certainly variation across drugs, but also some common themes.
- [09:06]
B
Okay, I'll come back to that. So the answer to the question or the puzzle you just posed, where has constitutional law been during the drug war? Before I read your book, I would have said, that's easy. Drug policy is a policy issue. It's for the legislators. This is not the kind of policy questions that courts should normally get into, and your book challenges that idea. And you go through a whole array of constitutional doctrines that I want to kind of march through them. You go through a whole array of constitutional doctrines and show, Primarily in the 60s and 70s, there are a couple of exceptions, how these doctrines might have had something important to say about drug policy and started to have something important to say about drug policy in some courts and then kind of petered out. Is that a fair claim about the way it worked?
- [09:56]
A
That's right. Yeah. I try to show how various dynamics beyond the courts and within the courts made drug rights claims plausible in the late 60s and 1970s. Not only plausible, but actually winning in a number of state courts and lower federal courts, and then how another set of external and internal dynamics shut down that project. So that by the time we got to the more militarized version of the drug war in the 1980s, Conwell had already left the scene.
- [10:24]
B
So I just want to frame that before we get into the details. So in a way, this book is an analysis of a failed constitutional revolution, or a constitutional revolution that might have been, but didn't happen, and is therefore potentially instructive, as you say, for understanding when constitutional change does and doesn't happen. So I just want to frame it that way, and we'll come back to that. Okay, so is that right?
- [10:45]
A
That's right. I'll just say I don't, however, take the view that courts should have saved us, you know, not necessarily a failure in the sense of the courts got it all wrong. The Constitution does protect drug rights. Rather failed in the sense of this was plausible and it was taken seriously, and it looked like it might actually win, but ultimately lost. And. And I think we can learn a lot from that, both about drug policy and common law. But. But I'm not here to say that judges. Judges necessarily failed us, although I criticize any number of particular decisions.
- [11:14]
B
Okay, fair. That's exactly what you say. All right, so I propose that we start with Griswold and the notion of privacy and personal autonomy embodied in Griswold. So march us through the argument in that chapter.
- [11:31]
A
So I say there that actually there was a flourishing Constitutional set of doctrines and debates over drug rights going back to late 1800s, early 1900s ends up getting vanquished in the late 1910s. And there's this period. For a while, there seemed to be no constitutional moves anyone can make around drugs. But then that changes in 1965 when the Supreme Court hands down Griswold versus Connecticut landmark case that recognizes what the court calls a right to privacy. That case had to do with the right of married couples to have contraception in the home. So no direct applicability to psychoactive drugs. But lawyers quickly figured out that, huh, if adults have a right to do things that don't cause direct harm to others in the privacy of their homes, and soon after Griswold, that would be located under the due process clause, maybe they also have a right to use at least physically non addictive, you know, softer drugs. And so marijuana claims flood the courts after Griswold at the federal and state levels. And if it now seems like absurd, you know, how could Griswold and the cases that came after it, like Eisenstadt and Roe on reproductive rights, possibly cover drugs? You have a lot of people thinking it's not only not absurd, but clear that those cases cover drug rights. One of my favorite examples is the California State Senate issued a study on this question in the early 1970s which concluded that it clearly, that was the adverb use clearly follows from Roe vs. Wade that people have a right to use marijuana. So, so Griswold, basically the privacy and liberty move is unlocked and you can now make substantive privacy and liberty claims under the Due Process Clause. And, and this is, this is what gets catalyzed by Griswold and plays out over the next 15 years.
- [13:23]
B
And so why didn't it work? Why, why did, why did this. The gambit to invoke Griswold to question the constitutionality of harsh drug policies not work, right.
- [13:36]
A
I should say a version of it did actually work in some state supreme courts which found a privacy based right to use drugs. Most famously the Alaska Supreme Court in 1975 in a case called Raven vs. State says that adult Alaskans do have a right to possess and consume small amounts of marijuana in the home. And that remains a kind of landmark in US drug rights jurisprudence.
- [13:59]
B
If I could let me just interrupt there and say one of the great things about the book is that you do federal con law in parallel with state con law. It's not just about federal con law. It's about how these ideas had different kinds of legs and in some sense, in some cases, a little bit more staying power in the state courts.
- [14:15]
A
That's right. Yeah. I actually think that kind of all of the greatest hits of US drug jurisprudence come from the state courts and that they're more interesting actors here in a lot of ways still to this day. But on what happens at the federal level and in most states is that we get substantive due process review, review of these liberty and privacy claims constrained by what is now familiar to constitutional lawyers, a two tiered approach to liberty and privacy claims, where at the outset you have to convince the court that a fundamental liberty interest has been abridged. If so, then you can get meaningful review. But if not, if you can't convince courts as to the fundamentality of your liberty claim, you've basically already lost your case. You're just going to get rational basis review. And that is now so familiar that it's largely taken for granted. I think by lawyers that that's how we do substantive due process review. But that was completely unclear in the late 1960s and early 70s after Griswold, that we would end up in that place. And I think that the proliferation of drug rights claims and all manner of other personal liberty claims, people saying they have a right to ride their motorcycles without helmets, is a huge line of litigation on that in this period. Or to wear their hair long if their school or government institution doesn't allow it. Courts wanted to close the floodgates that Griswold had open to all manner of personal liberty and privacy claims. And they basically developed this two tiered approach and this requirement of fundamentality to do that. And that ends up being fatal to drug claims. Because while a lot of judges are willing to say that there's some meaningful autonomy interest in drug use and strong reasons to think that a criminal approach isn't very effective, no judge is willing to say that is a fundamental right, you know, to smoke pot, something to that effect. That's a lot to ask of any court. And so that ends up being kind of being the death knell to the liberty and privacy set of arguments. I'll just say the Ravencourt interestingly adopted a different approach. It saw that clearly and said, we will not require a showing of a fundamental liberty interest in marijuana. Instead, we're going to balance the personal interest in the use of this substance as against the state's interest in prohibiting it. And adopting that proportionality style of review, found that a criminal prohibition that reached into the home was excessive, an excessive intrusion on privacy. That argument is still, still viable in courts that recognize it. But the two tiered approach to substantive due process review is just impossible burden to overcome for drug plaintiffs.
- [16:53]
B
And to be clear, that was a state court ruling, wasn't it? What, California, was it Alaska? Alaska, right.
- [16:57]
A
Yeah.
- [16:58]
B
And it was the federal, it was Supreme Court that adopted this two tier approach. So for me, when I was looking at, at this, I was thinking about motorcycle helmets and long hair claims and prostitution and assisted suicide and polygamy and all of the kind of liberty claims we can imagine. It seems to me that it was just a manageability problem that the court, as you said, had to draw a line. And even it seems to me with the balancing approach, it's kind of hard. I mean, once you start thinking about potential liberty interests. Now, do you think there would have been a way to distinguish drugs from these other liberty interests?
- [17:34]
A
Not necessarily. I think you're right that once you take on board the project of questioning paternalistic regulation, recognizing the broader substantive conception of liberty or privacy, much of vice law comes into play. You can distinguish a lot of other areas of vice law in terms of direct harms to third parties. And that might work for distinguishing drugs in some cases. But no, I think you're right. The manageability problem that you cite went beyond drugs. I do think drugs were among the most litigated cases because such a high volume of criminal prosecutions and so ended up kind of driving this doctrinal project. But I do think what you're describing is right on.
- [18:20]
B
Okay, let's move to something you've already talked about a little bit, and that is the potential limits on the federal government's power to even regulate drugs. You talked about the 19th century view that this was beyond the power of the federal government. So walk us through the evolution of this doctrine. Why it seemed to have legs for a while. It's the same story with a different valence, basically.
- [18:49]
A
Maybe I'll differentiate the state and federal levels here just on the power to regulate drugs, separate from the question of whether people have rights that may constrain that power at the state level. States, of course, have the police power under our constitutional framework to regulate in the name of health, safety and welfare. What was fascinating for me to recover and learn about in the late 1800s, early 1900s, is that a lot of state courts said that as broad as the police power is, and it expanded significantly after the Civil War, it doesn't reach matters of purely private concern. Then of course, the question is what's of purely private concern? And a lot of courts held that although the manufacture and sale of a drug like, say, alcohol has a public dimension, and so the police power can reach it if you're brewing your own alcohol or in your home, or consuming your own alcohol in your home, that is purely private and so beyond the reach of the police power. So one doctrinal revolution that happens in the early 1900s is to allow the police power to reach into the home, into purely private matters. So when that wall falls, you get state government authority unleashed to go after drugs anywhere they could be.
- [20:03]
B
And when did that happen?
- [20:05]
A
I think the watershed year was 1915, actually, when it all falls apart for people trying to hang on to some limits on the police power. That was a time when more and more states were passing prohibitory drug laws, not just against alcohol, but marijuana, heroin, other opiates, coca products. And the pressure was mounting on the courts to allow that at the federal level. I already mentioned how the tax power was the first vehicle that Congress was able to use to regulate drugs. And there in the 1910s and 1920s, you get case law which is very surprisingly permissive of Congress being able to do that at a time when it was black letter law that the taxpayer was supposed to be used for raising revenue and not just for guiding people's behavior in one direction or another. But that's clearly what these tax laws on drugs are doing. They're trying to stamp out the narcotics trade in various ways, like the Harrison tax Act of 1914. But the courts let that slide, and in the process, I say kind of unleash the government's authority to do what people would now call Puvian taxes. Tax is meant to, you know, again, get people to do more or less of something rather than just raise money. The Commerce Clause revolution happens in the New Deal period. And then Congress can go after intra state, local activities that affect interstate commerce. That actually isn't really taken up by Congress very aggressively until roughly 1970, when the major federal statute we talked about earlier, the Controlled Substance act, is enacted. And it's not even a question at that point that Congress has that authority. I'll just say one little interesting nugget related to that is Timothy Leary, the famous LSD avatar and proselytizer, actually wins a Supreme Court opinion unanimously, if I recall correctly, where he's challenging part of the Marijuana Tax act because he's busted for having marijuana on him. And since that law was still on the books from the 1930s under the tax power, the way it worked was you had to pay a nominal tax on your marijuana at the Federal level. But more importantly, you had to register with the Commissioner of Internal Revenue that you had marijuana, and every state criminalized marijuana. So no one wanted to do that. And Timothy Leary successfully argued that he was being asked to incriminate himself. He was going to have to file papers showing that he's in violation of criminal state law. And so that looks like a victory for the drug rights movement, but in fact, it quickly proves a Pyrrhic victory, if not utterly perverse, because Congress just comes back the very next year and says, okay, we're done with the tax power. We're just going to go after drugs directly with the Commerce Clause and just enact prohibitions, not, you know, collect taxes and require registration. So in 1970 on, we move into a Commerce Clause regime of federal regulation.
- [22:57]
B
So you say this in the book, and it occurred to me as well, it seems to me like this, the Commerce Clause revolution, as you say, this is the flip side of the New Deal settlement. This is the idea that Congress, after part of the New Deal settlement was in exchange, if you want to call it that, for heightened scrutiny of certain civil and political rights. The court gets out of the business largely of having Commerce Clause limitations anyway on the federal government's power, or numerator, it may be even broader, enumerated power limits on the federal government's power to regulate, quote, unquote, social policy. And so first of all, is that right?
- [23:35]
A
Yeah, I agree. I think this is. I say some of the story I describe is one of how the New Deal settlement, where, as you describe, courts are now going to allow social and economic regulation to go forward with minimal review, except in a few specific areas of civil liberties and civil rights, ends up running against, running up against this set of policies that are disastrous, you know, in terms of all the values we talked about earlier and not really having good resources to deal with that. The New Deal settlement, in other words, is set up to enable regulation. It's meant to be pro regulatory. And when it's confronted with regulation that is just profoundly failed and doesn't achieve its own stated objectives, it doesn't really have good tools to reckon with that. Every day there's a new challenge to face. So meet Trimble, the technology company that connects your physical and digital worlds, allowing you to make decisions and take intelligent action to get the hard work done. And the best part, you can do it all faster than you've ever thought possible. Check them out at trimble. Com. You ready to turn data points into decision points or turn deadlines into finish lines? How about turning possibilities into profits, then turn to trimble. The market's uncertain, revenue's tight and hiring on hold. That's why results driven companies are using.
- [24:59]
B
Upwork to keep work moving.
- [25:01]
A
Go to upwork.com today and start hiring proven freelance talent fast. No bulky overhead, no rigid long term contracts. Just the right expert right when you need them. Work smarter and faster with Upwork. Go to Upwork.com now and find your freelance expert. That's Upwork.com post a job for free.
- [25:21]
B
And get started today.
- [25:23]
A
Hi, I'm Madupak Enola from TED Business and I'm here to talk about the Financial Times. Every day the world bombards you with endless headlines and noise. What matters most? Facts and context. That's where the Financial Times comes in. With clarity, depth and truly independent reporting, the FT helps you cut through the noise and see what's real and why it matters. Stay informed with the trusted source leaders around the world rely on. Visit FT.comSourceFT to read more and save 40% on a digital FT subscription.
- [26:06]
B
And you talk about There was this moment of from the drug policy perspective, there was this moment of hope with Lopez and Morrison, with the conservatives on the court seemingly putting non trivial constraints on the commerce power. They weren't thinking about drug policy then, as we'll learn in the next case, but there was a hope that these renewed the conservative renewal of limits on the commerce power, which was likely done for other reasons, might have implications for drug policy. But then, tell us about Gonzalez versus Rach.
- [26:37]
A
Yeah, that could have been another inflection point when states had started to pass medical marijuana laws starting in the late 1990s would quickly become wildly popular. By the way, they're inconsistent with federal law, of course. And there's a desperately ill patient in California who says she wants to grow and cultivate marijuana for her personal medical use pursuant to her doctor's orders, all in conformity with state law. And that to the extent that the federal Controlled Substance act criminalizes that behavior, it goes beyond the scope of Congress's Commerce Cause authority. And riding this wave of federalism, victories after cases like Lopez and Morrison, a lot of people thought that the Supreme Court would go along with this too. And there are a number I try to say in the book. There are a number of intermediate solutions the court could have adopted, short of just striking down the Controlled Substance Act. It could have of course, said that it doesn't reach scenarios where you're acting legally under state law and just doing something for personal use, not trying to get it into the marketplace for commerce. It could have also said that when states want to allow the trade in some commodity, the Commerce Clause is constrained in its ability to prevent that and any number of other solutions. And instead, the court basically just upholds the CSA and doesn't crush the experiment with medical marijuana. Of course, that's another story, but crushes this incipient project to put limits on the Commerce Clause in a way that might have also reduced the federal government's role in drug policy. Now there, I'll just say the ideological or partisan alignments are interesting, too, because you have Justice Scalia and Kennedy defecting from their conservative counterparts who wanted to put more limits on the Commerce power to uphold the Controlled Substance Act. And the kind of easy, cynical thing to say is when you. When they're confronted with a countercultural drug, you know, suddenly they're. They're okay with federal power. I'll just say the flip side of that is that liberals, liberal judges at many points in recent decades have gone along with punitive drug measures in their desperation, as I see it, to save the New Deal settlement.
- [28:47]
B
Yeah.
- [28:47]
A
You know, so it's really just like the policy story of how we got punitive drug laws is bipartisan, and that's now why they recognized it's not as if Democrats were good on this. The jurisprudential story is bipartisan, too.
- [28:59]
B
Yeah. So that was one of the. One of the things that really stand out from the book is the bite of the New Deal settlement across all these doctrines, because, as you say in Gonzalez, it was two of the conservatives in the majority in the prior federalism cases defected, but it was the liberals who were all in the majority, and it was three conservatives in dissent there. So at least three of the conservatives were willing to hold their guns. I also noticed, and again, I don't think this. There's an ideological valence to this. I think it's really kind of doctrinal commitments for many of these justices. But the early case that you cite called Nigro, which was an early decision in establishing the federal government's power over drug policy. And you can tell us what the case is about. But the three dissenters there, on enumerated power grounds, were three of the Four Horsemen. Let's see, who was it? It was McReynolds, Sutherland, and Butler. So what do you make of this? I mean, other than what you just said, that it's not. It's really not about ideological lineups. It's about something else.
- [30:02]
A
I mean, at points, I think judges anti Drug priors lead them in certain directions. So you know that that might have been at play in allowing the tax power to up. That case involved the Harrison act being upheld under the tax power, which imposed a nominal tax on people who dealt in opium and coca products, I believe. And everyone understood that this was meant to stamp out the narcotics trade, and yet the court allowed it. So there. I think it's easy to say that the court just did not want to disable drug regulation, whether as a matter of public health or anti drug moralism or whatever was behind that. But at other points, as you say, I think courts, wherever their sympathies may lie on drug policy, are just too concerned about some larger doctrinal structure and not blowing it up. So that that helps explain why the liberal justices, including Justice Stevens, who is writing in Raiche and clearly hates marijuana prohibition and in later cases would come out and say that and after retirement would say it even more forcefully. Just feels like we cannot allow the New Deal settlement to be chiseled away too much and federal government power to be reduced too much. And so drugs are kind of a casualty of that other set of commitments. I think that also plays out by the way to some extent with some judges in the 8th amendment where a very straightforward constitutional argument somebody's the most straightforward that could have put a break on the most punitive aspects of the war on drugs is that it amounts to cruel and unusual punishment when drug sentences are grossly disproportionate to the moral gravity of the offense. And basically there I tell a story about how judges, many of them, did not want to get into the business of weighing on a case by case basis just how disproportionate is this punishment to this offense that liberals join in that project too, basically in shutting down 8th amendment claims. So it's a mix of people's views on drugs and people's larger constitutional agendas combining to create the outcomes we got in that regard.
- [32:08]
B
On the 8th amendment point, just tell us briefly the story about Robinson vs. California and why that didn't have legs.
- [32:16]
A
Yeah, that's an amazing story. There are two different tracks of eighth Amendment arguments that were very actively litigated in the late 60s and 1970s on drugs. So the first is comes out of this case, Robinson vs. California, and the Supreme Court decides in 1962. And there was a very strange California law that as the California courts had construed it, made the status of being a narcotics addict a crime, not actually necessarily having the doing of narcotics, but just being an addict was a crime. And the Supreme Court says, and it's a weird case, by the way, among other things, because Robinson, the defendant, actually has died by the time the U.S. supreme Court hears his appeal months ago. And no one seemed to realize that or purported not to realize that. And they. They issued this landmark ruling when arguably it should have all been moved. In any event, the Court says in 1962 that it is cruel and unusual punishment to impose even a day of prison time for the mere status of being an addict. And lots of lawyers quickly realize that there's real potential to build on that. Because if it's impermissible to punish someone for the status of being an addict because they can't control that, shouldn't it likewise be impermissible to punish them for doing things incident to their addiction, like buying and using the drugs that they're addicted to? And a number of lower courts start to go in that direction in the mid-1960s. And then by the end of the 1960s, the Supreme Court pulls back and ends up saying, basically, all that Robinson stands for is you can't criminalize the mere status of being an addict, which no states are doing at that point. So it ends up being rather useless. And on the proposition that you can't criminalize behavior that people do under some compulsion, like addiction, Justice Thurgood Marshall, in this famous opinion of Powell, ends up saying, but that's. That's unsustainable. That that could take down the whole criminal law, because we're going to have murderers coming in here and saying, I suffered from a compulsion to kill, and that's why I murdered. You can't punish me for that. And drunk driving, we're not gonna be able to punish drunk driving. People say, I had to get drunk. And a lot of dissenting justice point out that there are any number of lines you could draw that would not, you know, distinguish narcotics addiction. And, you know, But. But the court basically doesn't want to get into the. Again, the. The management issue in any given case, allowing the defendant to claim that they suffered from some compulsion. Bringing in, you know, scientific experts to prove that seemed beyond the court's competence. And prosecutors hated it because they wanted to be able to bust possession, that it's much easier to charge possession than distribution. And then you get people for possession and flip them into informants or use them to penetrate drug networks. So also, the idea that people can't be punished for possessing or consuming drugs to which they're addicted is anathema to kind of the law enforcement side of the drug war. So for some combination of those reasons, Robinson gets shut down. And then I won't go into it unless you'd like. But just the other set of 8th amendment arguments I referenced a minute ago are just these excessive punishment claims. And for marijuana in particular, they started to take off in a bunch of state courts where the state court said there comes a time when the punishment just profoundly doesn't fit the crime. And when we have non violent, non trafficking offenses for relatively soft drugs, you know, then and there, people are getting 10 plus years in prison for that. We're going to enforce the eighth Amendment. And that also has legs for a while until the US Supreme Court stops it a little bit later, closer to 1980.
- [35:58]
B
Let's talk finally before moving on to broader issues about the Equal protection clause and what the claim was and why that ended up not working.
- [36:07]
A
Great. Yeah. Surprisingly, in the 60s and 70s, it's not a race discrimination claim. That came later with the differential treatment of crack cocaine from powder cocaine and a failed effort to get that recognized as unconstitutional race discrimination under equal protection, which the book also has a has a chapter on. But actually the equal protection claims that are litigated actively and make headway in the 70s are quite different in character. They're not about race. They're about the idea that like, needs to be treated alike. And when drugs that are fundamentally similar pharmacologically or behaviorally are treated very differently by the law, like how alcohol and tobacco are legal but marijuana is illegal, that could be an equal protection problem, not even passing rational basis review. Also, when drugs are treated as if they're alike, when they're profoundly different, it raises a version of the same problem. So marijuana in the 60s and 70s lumped together with the heaviest narcotics in all these drug control laws, and sometimes it is described as a narcotic in these laws. And so basically, the challengers come in and say, we've got a mountain of new evidence being produced by reputable government commissions as well as individual scientists showing that marijuana is not nearly as dangerous as heroin, say, and we've got lots of growing evidence that alcohol and tobacco are a bigger problem. And we've reached a point where even the minimal standard of rationality that the Equal protection clause ensures has been violated. And you get, I was able to collect about a dozen opinions in which courts find that it violates equal protection the way marijuana is scheduled in the 1970s, and that's that. That, to me was stunning because we now teach rational basis review under the equal protection Clause as a big nothing. You know, there's, it's effectively impossible to prove that a classification the government has drawn is so irrational that it can't meet that, that standard. And, but there too, it was, I think, less clear in the 1970s whether at least when it came to criminal laws, equal protection rational basis review might have a little more bite. And in the marijuana cases we saw what that might look like. And there too the, the courts, basically by the end of the 70s, the appellate courts said we don't want to get in the business of constitutionalizing these hard calls about the relative dangerousness of different substances. And even the existence of uncertainty or debate about just how dangerous a drug is is enough to satisfy rational basis review. So you may have 99 scientists saying marijuana is safer than heroin, but if you have one who says marijuana is quite dangerous, that's enough for us to pull back and allow marijuana to be scheduled in the toughest drug schedules anyway. It's a journey back into a different period in equal protection law when it wasn't just focused on suspect categories like race or national origin, but also demanded that the government draw reasonable lines when it was regulating in any given area. And marijuana actually was the most interesting piece, I think, in that whole puzzle in a 15 year window.
- [39:26]
B
And you also talk about how the equal protection clause didn't work even when there was heightened scrutiny or potential heightened scrutiny with the crack vers. Cocaine debate.
- [39:35]
A
Yeah, that story, I think, is probably better known to constitutional scholars. But there the problem is that again, the 1970s are this crucial turning point. The US Supreme Court in the 70s starts to say that unless you have an explicit racial classification written into the law, like you read the law, and on its face, it distinguishes people on the basis of race. The only other way that's going to draw strict scrutiny. But drug laws don't do that, of course. They just talk about substances and penalties associated with them. They don't talk about race. And the only other way you can get into strict scrutiny, the court said, is if you can show intentional discrimination. And not only that, but that the policy was taken not just in spite of, but because of its negative disparate effects on some racial group. And that proves fatal to efforts to challenge drug laws. Because while the crack cocaine penalties are way harsher than the powder cocaine penalties, and everyone knew and observed that that had a profound racial skew. 90% plus of the crack defendants in many jurisdictions were black, even though a majority of crack users nationwide were white. Throughout this period, no one was able to convince A court, an appellate court, that it was the product of intentional discrimination. The courts could always say, you know, crack was cheaper, might be more addictive, faster acting, more associated with gang violence. They could always come up with some race independent reason why the crack penalties were enacted. And you had, however, the Minnesota Supreme Court and this one district court that basically found a way to work within that framework and nonetheless strike down the differential treatment of crack. So always, even when these doctrinal frameworks look inhospitable, there are these creative actors that show there's still some play in the joints. So the most famous opinion there is this Clary case where the district court out of Missouri says, okay, we're stuck with the requirement of proving intentional discrimination to get to strict scrutiny when it comes to claims of race discrimination. But we can recognize unconscious discrimination or implicit bias as a type of intentional discrimination. And the only way to understand the way that crack has been treated is if we look at the record and the sensationalized depictions of crack in the inner city and, you know, the racially coded language that courses through the debates in Congress. We have to appreciate that this is the product of unconscious racism. So it's a very creative attempt to kind of work within the Supreme Court's framework. And then the A circuit on appeal just laughs at it. Of course, they don't ask a single question of Clary's lawyer. It's so obvious to them that that doesn't count as the right kind of intentional decision discrimination. And then that dries up that move.
- [42:18]
B
Okay, so let's step back. None of these approaches worked. Griswold and personal autonomy, equal protection, limits on government and humane proportionate punishment and others.
- [42:30]
A
First Amendment.
- [42:31]
B
Yeah, we didn't talk about religion and First Amendment, but none of the. Which is another chapter in the book. So what is the takeaway here? There are a lot of takeaways. What are some takeaways from. From this pattern?
- [42:43]
A
Oh, yeah. I mean, I. I think there are right kind of specific doctrinal stories we could tell about all the areas we're talking about and what we learned. But. And then there's this larger story about the New Deal settlement and its trade offs, how it enables an active regulatory state and does a lot of good in the process, but also has a really hard time dealing with the shift from the welfare state to the people penal state, and when confronted with a massive policy failure like the war on drugs, kind of falls short. And then there are, I think, also just even broader stories about the whole architecture of constitutional decision making in this country. So there I highlight things like who gets to decide what the Constitution means. The federal courts are taken to be the key actors on that in our culture of judicial supremacy and federal hegemony. But every state has its own constitution. They have all the same rights that the federal constitution has and more. And we therefore could have seen much more creativity from state courts than we ended up getting. And it's really more of a question about culture that the state courts end up following in lockstep with the federal courts as much as they do. Likewise, there's a question about what even counts as a constitutional argument in the first place. That's of course not determined by the text of the Constitution itself, but is a product of our norms of legal argument in our constitutional culture. And there I try to say that this is a nice case study in how the norms of what counts as an acceptable constitutional argument screen out some of the most powerful political moral arguments that people want to make about issues. So when you're thinking about the drug war and whether it was misguided or cruel, I think obvious moves to make include drawing on liberal theory and saying some version of Rawlsian or Melian liberalism. When what I'm doing to myself isn't debilitatingly addictive or overthrowing my own capacity for self rule and isn't causing direct harm to others, I should be allowed to do it. Standard liberal argument. But that's not cognizable in con law. You can't just come into the court and cite roles and likewise cost benefit analysis. There's been a lot of CPA done on drug policies at all. Shows that punitive policies like the kinds we had are not cost justified, they're wildly expensive and immiserate people for no good reason. And so you would like to come to court and say, look, just whatever your views on drugs, this is a disaster. From the perspective of consequentialism or cost benefit analysis, you can't do that either. So instead everyone's trying to kind of shoehorn their profound concerns with a set of policies into these scraps of parchment, these clauses from our framework legal document. And it ends up kind of diluting the power of a lot of the arguments. So those are just two examples. But I try to tell a story about how the kind of constitutional culture, as well as the institutional structure of how we resolve constitutional claims all lines up against drug challengers in a way that really reveals something about the limits of commo as a tool for social reform.
- [45:48]
B
So let me talk about those last two points. The unacceptable arguments. You have used the phrase anti modalities to say these are forms of argument that aren't permitted. Now, the weird thing is, of course the justices think in consequential terms, of course they think in policy terms, but it's not allowed as a cognizable category, even though it's briefed and mentioned. So this is a little bit beyond the book. But why, why are those things? Why do we accept text? This is a big question which you might not have a short answer to, but why do you know why? Why do we accept text, structure, history, tradition, doctrine, et cetera, whatever the modalities are? And yet these other things which actually do count in Supreme Court decision making are formally out of bounds and ended up being the most powerful arguments for. Against extremes of criminal prohibitionism, but not available. What, what explains that?
- [46:44]
A
Right. It's a deep question. I. I think maybe a simple way to answer it or begin to answer it, is that judges need to maintain some version or semblance of the law, politics, distinction. And if you're just openly admitting consequentialist and deontological arguments that people would make in philosophy or on the floor of Congress, then you've breached that wall and there's nothing left of the integrity of the law as a distinctive enterprise. And so I am actually sympathetic to the idea that there needs to be rhetorical and argumentative constraints on what lawyers say to distinguish what we're doing from what the policymakers are up to, and that courts should abide by that. That said, I think there's lots of room to argue about whether we've got the acceptable forms of argument just right. I would like to see them loosened in certain ways and strengthened or tightened in others. But there's also a larger question that follows, I think, of if it's right, that it's all but inevitable that constitutional argument is going to kick out some of the key things that people care about. The kind of political moral arguments that people care about, of course, partisan arguments, emotional arguments, appeals to compromise, just splitting the difference between parties who can't agree. All of these are ruled out by constitutional argument. If I'm right about that, then I think we should ask less of Kamala. We should recognize that it's an inherently flawed and limited tool for resolving many kinds of social controversies. And rather than try to reform Kama so that it can, you know, incorporate more straight up moral reasoning, for example, it might be better just to limit the space in which common law is expected to provide answers at all. And you know come of recognize that we should decide more questions outside of courts. That said, what seems to me intolerable is to both have these limits on how courts operate and ask them to cover every other issue in our social lives, whether it comes to reproductive rights or gun rights or what have you, and yet stay out of the drug business. That equilibrium seems to me indefensible where we've constitutionalized every other kind of dispute we have, and yet we've deconstitutionalized drug policy, which throws tens of thousands of people in prison every month.
- [49:01]
B
I want to come back briefly. We've talked about the New Deal settlement. There was a sentence in the book that struck me as the single sentence that most convincingly explained this, and it combines manageability with the New Deal settlement. And here's the sentence. What I wish to convey is how hard it is this is you. How hard it is to engineer constitutional doctrine so that it will block the most objectionable parts of punitive prohibitionism, on the one hand, while avoiding judicial overreach and preserving worthy regulatory goals on the other. It strikes me that that was the central difficulty that the judges faced. Is that fair?
- [49:38]
A
I think that's fair. There's a kind of tragic trade off embedded in that right, that if you want to allow robust regulation to happen without too much judicial interference, you have to develop various deference doctrines to enable that. And the cost may be allowing some terrible policies to go forward, as well as lots of good examples of regulation that we can cite. And I'll just say, but it does tee up questions about whether there might be better ways to manage those trade offs. If at some level they're inevitable, they can still be handled differently. And at the end of the book, I tack toward what courts are doing abroad, which is so called proportionality review, where they end up looking much more closely at the facts and not just at the nature of the rights claim that's being made and who the claimant is and whether they're in a protected category, but also at the evidence in support of the government's purported public good that it's serving. And that I just, I think for drugs really captures better the. The nature of a lot of the key critiques of punitive drug policies, which is to say, I don't think it's really the case that most people think that drug use is necessarily a fundamental right, qualitatively different in kind in constitutional status than any number of other liberties we can think of. I think the biggest objection is that punitive drug policies backfire they help no one and do lots of harm. And that's what courts abroad are able to recognize. They say you have some non trivial constitutional interest in being able to use drugs. And we're not going to say that that's fundamental or anything like that. But that's on one side of the ledger and we don't totally dismiss it, but on the other side we have to ask what good is the government's criminal policy serving? And they get into all the evidence and sometimes with some drugs like marijuana, find it's just, it just indefensible. And so that asks a lot of courts. It raises a different set of questions about their competence and their evidence gathering procedures and their remedial flexibility and so on, but at least enables them to capture the structure of the debate, which is not that drugs are so special, they should get treated like just one of a handful of special rights we have and be put in a category with guns, say, which enjoy of course, special textual status under the Second Amendment. The real heart of the debate is that the policies the government is using have been so profoundly ineffective.
- [52:11]
B
So let me ask you about that. The policies the government's been using and we'll close on this. And you acknowledge this in the book, and it's been in the news in the last couple of weeks, the Biden administration, or at least it's been reported that the Biden administration is going to reclassify marijuana from Schedule 1 to Schedule 3, which makes it basically, it makes it much less regulated. I want you to explain what that means. But that is on the horizon. And I looked at the latest Gallup poll which said 70% support for decriminalization of drug use, including I think maybe for the first time a majority of conservatives, 52%. And in general we do see decriminalization happening in the political process. So A, tell us about the state of decriminalization. B, how does what's going on in the political process relate to the constitutional side? Is it a good thing that court stayed out? Does this show that they were right to stay out? Or is there some other lesson we should draw?
- [53:09]
A
Great. Yeah, a lot there. I'll just, I don't think it shows necessarily the court should have done one thing or another. I'm cheered that there has been some progress in the direction of more humane evidence based drug policy in recent years, although, you know, fitful and limited. But in the 1970s when courts were active on questions of drug law, it tended to work symbiotically with reform at the policy. You Know, in the political sphere, that is to say, in those jurisdictions where the courts were finding any kind of drug rights policymakers took that as a cue to do more. So it wasn't the case that courts were cannibalizing, you know, broader reform efforts in a way we might worry about elsewhere. But now I'll say a word on the Biden announcement.
- [53:51]
B
Explain what. Explain what's going on.
- [53:54]
A
So what you said is correct. The Justice Department has recommended that marijuana be rescheduled from 1 to 3. Schedule 1 under the control Substance act is basically a complete criminal ban. Schedule 3 allows doctors potentially to prescribe the substance. So you might think, okay, great, we're moving to a medical marijuana regime at the federal level, like a number of states have, though not fully to a recreational, legal regime. But actually, it's going to be disappointing to people who hope and expect that will happen, because although it's true that Schedule 3 substances can be prescribed by physicians, the substance has to first be approved by the fda, and marijuana has not been approved by the fda, and it's unlikely to be approved anytime soon. In fact, we're still going to have the same incoherence, you know, across the federal and state dividend. There is one concrete benefit that this rescheduling will have, assuming it goes forward, and I fully expect that it will be now the Justice Department and HHS have approved it. It will become law in the coming months, which is that the tax code has a provision 2 ADE that says that companies that traffic in Schedule 1 and 2 drugs can't take an ordinary business deduction. So once marijuana goes to Schedule 3, all the marijuana companies that have licenses in their states can now get a deduction. So it's basically a tax break for marijuana companies, and it's not going to do much else. But culturally, it may be significant. I think it's probably this, I think, was where you were going, Jack, going to be a way station on the way to full legalization and the treatment of marijuana like alcohol or tobacco. Because now that the DEA and the Justice Department have signaled for the first time ever that they got it wrong in marijuana and it's really not deserving of Schedule 1 treatment, that may give a little boost to those members of Congress who are, who are on the fence. The bigger force here, though, is, as you suggest, just the political popularity of marijuana. Legalization just grows and grows. So I imagine that this is a waystation, right, to a different destination and legalization. I'll say that this is well and good for marijuana for those who think it should be legalized. Whole separate conversation about how to manage the public health risks that it nonetheless poses I think are real. But if we look beyond marijuana and there's also been moving on psychedelics and getting them approved for various therapeutic applications. But more broadly I still think we're in a punitive drug regime and constitutional law could do some good not in getting us to an ideal drug policy. That is wishful thinking and it's going to require a lot of government expenditure to support people's health and not just prevent them from accessing certain substances. But but the one thing that constitutional law and courts can do well is serve as a break on over punishment. And there I still see a fruitful role potential to be played by by courts, you know, and that that applies to drugs well beyond marijuana.
- [56:52]
B
David Posen, thank you very much.
- [56:55]
A
Thanks so much Jack for having me on.
- [57:00]
B
The Lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other lawfare podcasts by becoming a Lawfare material supporter through our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Chatter, Allies and the Aftermath, our latest Lawfare Presents podcast series on the government's response to January 6th, and check out our written work@lawfairmedia.org the podcast is edited by Jen Patia and your audio engineer. This episode was Kara Shillin of Goat Rodeo. Our theme song is from Alo Buy Music. As always, thank you for listening.
- [57:57]
A
Trimble is the technology company that connects your physical and digital world so industries like transportation and geospatial can get hard work done faster than ever. Every day brings new challenges, decisions, adjustments, real time moments that matter. With Trimble on your team, you're in command of purpose built tech ecosystems and connected solutions that keep work flowing end to end. Turn data points into decision points, deadlines into finish lines and possibilities into profits. Check out what Trimble can do for you@trimble.com because with Trimble you can act smarter, move faster and lead with confidence. Trimble confidence at every turn.