The Lawfare Podcast

David Pozen on ‘The Constitution of the War on Drugs’

Date: September 28, 2025 (original interview from May 10, 2024)
Host: Jack Goldsmith
Guest: David Pozen, Professor of Law at Columbia Law School

Main Theme:

This episode explores the constitutional dimensions of America's War on Drugs, based on David Pozen's book, The Constitution of the War on Drugs. The conversation analyzes how constitutional law has both enabled and failed to restrain the punitive drug policies of the last century, exploring reasons why doctrines around liberty, equality, and proportionality have largely not protected drug users or challenged the drug war’s excesses—even as other social battles became constitutionalized. Pozen and Goldsmith also consider lessons for constitutional law, judicial culture, and the prospects for reform in an era of evolving drug policy.

Key Topics & Insights

1. Historical Roots of Drug Prohibition and the Constitution

• [03:02] Pozen outlines how early constitutional doctrine (pre–New Deal) constrained Congress’s drug enforcement powers, resulting in states leading prohibition and the use of federal tax laws (e.g., Marijuana Tax Act) as workarounds.
• The switch from tax power to broad Commerce Clause authority empowered a national, punitive approach after 1970.

"Constitutional law has shaped how drug enforcement and drug policymaking happened... The reason why we see our early federal drug laws taking the form of tax measures is constitutional doctrine."
— David Pozen [03:02]

• The resulting system: “punitive prohibitionism” (criminal bans, harsh penalties) rather than regulation, education, or public health strategies.

2. Failures of Modern Drug Policy & The Constitutional Puzzle

• [07:11] Pozen asserts broad consensus that punitive drug policies have failed—harming liberty, racial justice, public health, and even their own ostensible goals.
• The core puzzle: Why did constitutional law—ostensibly focused on liberty, rationality, and equality—not meaningfully restrain the drug war?

"The drug war is itself criminogenic... 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?"
— David Pozen [07:11]

• Constitutional claims often attached to different drugs: privacy claims (marijuana), Eighth Amendment (heroin), religious liberty (peyote), illustrating the complexity and fragmentation of legal approaches.

3. The Lost Constitutional Revolution

• [09:56] Goldsmith frames the book as an analysis of a “failed constitutional revolution.”
  • In the 60s-70s, there were flickers of success for drug rights (state and lower federal courts) across several doctrines.
  • Internal and external pressures—judicial restraint, manageability fears, deference doctrines—ultimately shut down these advances before the escalation of the drug war in the ’80s.

"I don’t...take the view that courts should have saved us... Rather failed in the sense of this was plausible and...looked like it might actually win, but ultimately lost."
— David Pozen [10:45]

4. Substantive Due Process, Privacy, and Drugs

• [11:30] The Griswold v. Connecticut decision (1965) on privacy in the home sparked hope for drug rights.
• For a time, courts entertained the extension of privacy/autonomy arguments to drug use, with state courts like Alaska’s Ravin v. State granting limited rights ([13:35]).
• But at the federal level, the Supreme Court’s development of the “two-tiered” approach (fundamental rights vs. rational basis review) made it effectively impossible for drug rights to qualify, shutting down this path.

"No judge is willing to say that there's a fundamental right, you know, to smoke pot... That ends up being...the death knell to the liberty and privacy arguments."
— David Pozen [15:52]

5. Federal Power and the Commerce Clause

• [18:49] The history of federal and state police power re: drugs:
  • Initially, states could not intrude on matters of “purely private concern” (ex: home alcohol use), but that changed in the early 20th century.
  • Congress’s movement from tax to direct regulation became unassailable due to the New Deal’s broad reading of the Commerce Clause ([23:34]).
• The Supreme Court’s Gonzalez v. Raich decision (2005) dashed hopes for a constitutional shield for state-level marijuana reform, reaffirming federal supremacy.

"The New Deal settlement...is set up to enable regulation...When it's confronted with regulation that is just profoundly failed...it doesn’t really have good tools to reckon with that."
— David Pozen [23:34]

• Judicial reactions often crossed ideological lines, united more by doctrinal and institutional concerns than policy preferences.

6. Eighth Amendment: Cruel & Unusual Punishment

• [32:07] Early hope: Robinson v. California (1962) ruled it unconstitutional to punish “status” (being an addict).
  • Lower courts tried to expand this: could you punish conduct stemming from addiction (use/possession)?
  • The Supreme Court quickly “pulled back”; manageability/policing concerns trumped expansion (see also Powell).
• Later Eighth Amendment challenges (excessive sentencing for nonviolent drug offenses) gained traction in some state courts but were eventually shut down at the Supreme Court ([35:57]).

7. Equal Protection Challenges

• [36:06] 60s–70s: Not racial, but “likeness” claims prevailed (why are alcohol and tobacco legal, marijuana illegal if similar risks?):
  • Courts briefly found irrational scheduling of marijuana violated equal protection.
  • “Rational basis review” soon became so deferential that even widely debunked government rationales sufficed.
• Later, crack vs. powder cocaine disparities were targeted as (racially) discriminatory, but strict scrutiny was unavailable unless plaintiffs could prove overt or intentional racial bias—impossible in practice ([39:35]).
  • Creative lower-court decisions (e.g., Clary) tried to argue for implicit bias as intentional discrimination but were quickly overturned.

8. Lessons for Constitutional Law & Reform

• [42:29] None of the “major” constitutional avenues worked: liberty, equality, rationality, or proportionate punishment.
  • Even major Supreme Court victories like Griswold or Robinson failed, in the end, to constitutionalize meaningful drug rights.
• Pozen identifies two “meta” barriers:
  1. Judicial and cultural deference stemming from the New Deal: The prioritization of regulatory discretion over rights-claims in social/economic policy domains.
  2. Constitutional culture and permissible argument: Courts only formally consider certain types of arguments (text, tradition, precedent) and bar consequentialist, cost-benefit, or broad moral reasoning—even though these may be decisive in policy.

"The kind of constitutional culture, as well as the institutional structure of how we resolve constitutional claims, all lines up against drug challengers...reveals something about the limits of common law as a tool for social reform."
— David Pozen [45:38]

• Goldsmith summarizes: "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." ([49:00])

9. Comparative Perspectives & Proportionality Review

• [49:37] Pozen suggests that courts abroad apply proportionality review—fact-intensive, balancing the seriousness of government aims against the rights burden—which sometimes leads to striking down harsh drug laws, especially for marijuana.
• U.S. courts’ categorical approach (fundamental vs. non-fundamental rights) is poorly suited to assessing claims where the real argument is that policy is simply “bad public policy.”

10. Decriminalization & Contemporary Drug Policy

• [52:10] Pozen and Goldsmith analyze current political trends:
  • Broad support (including majority conservative support) for marijuana decriminalization; significant state-level and (modest) federal reforms underway.
  • Biden administration’s move to reclassify marijuana from Schedule I to III: a tax break for marijuana businesses, but not full medical or recreational legalization at the federal level ([53:53]).
• Constitutional law played little role in these advances; where state or lower courts awarded limited drug rights in the ’70s, it often boosted, not displaced, political reform.

"I still think we’re in a punitive drug regime and constitutional law could do some good...The one thing that constitutional law and courts can do well is serve as a break on over-punishment."
— David Pozen [56:39]

Notable Quotes & Memorable Moments

• On the War on Drugs’ Failure:
  "It's much more plausibly done the opposite. That is, the drug war is itself criminogenic and itself produces more dangerous drug behaviors."
  — David Pozen [07:11]

• On the Limits of Doctrine:
  "The proliferation of drug rights claims...Courts wanted to close the floodgates that Griswold had open to all manner of personal liberty and privacy claims."
  — David Pozen [15:52]

• On Constitutional Culture:
  "The most powerful political and moral arguments that people want to make about issues...are not cognizable in con law. You can't just come into the court and cite Rawls."
  — David Pozen [44:10]

• On Constitutional Law's Role:
  "Rather than try to reform...to incorporate more straight up moral reasoning...it might be better just to limit the space in which constitutional law is expected to provide answers at all."
  — David Pozen [47:11]

Timestamps for Key Segments

• Introduction & context: [00:00–02:07]
• Historical doctrine & drug prohibition: [03:02]
• Failures of modern drug policy: [07:11]
• Why constitutional claims failed: [09:56], [13:22], [15:52], [18:49], [23:34]
• Gonzalez v. Raich & federalism doctrine: [26:37]
• Eighth Amendment and punishment: [32:07]
• Equal protection arguments: [36:06]
• Big-picture lessons: [42:29], [45:38]
• Proportionality review & comparative law: [49:37]
• Current politics and marijuana reclassification: [53:09], [53:53]
• Closing reflections: [56:39]

Takeaways and Conclusions

• Many doctrines—privacy, equality, punishment, federalism—could have provided a check on the worst abuses of drug prohibition, but all ultimately failed due to cultural, institutional, and doctrinal constraints.
• The New Deal legacy, with its broad regulatory deference, precludes courts from policing the worst governmental failures in drug policy.
• The formal boundaries of constitutional argument leave out precisely those cost-benefit, consequentialist, and moral arguments that are most needed in evaluating punitive social policies.
• Real progress on drug policy has come through political and cultural change, not judicial activism or constitutional reinterpretation.
• There is still a fruitful, if limited, role for constitutional law as a brake against over-punishment.
• The U.S. approach contrasts with other democracies that use proportionality review to recognize and manage the harms caused by excessive drug punishments.

For listeners:
This conversation is an incisive exploration of the intersection of constitutional law and drug policy, charting why American courts have not meaningfully checked the punitive drug regime—and what that means for the broader project of legal reform and social justice. The discussion retains a measured, scholarly tone, with moments of humor, nuance, and wistfulness for what might have been—and could still be.