"Prohibition Constitutionalism"

The title of this post is the title of this review essay recently appearing on SSSRN authored by Matthew B. Lawrence. Here is its abstract:

This Review Essay describes and applauds David Pozen’s book, The Constitution of the War on Drugs, and offers its own intervention.  Scholars have traced the failed addiction policies exemplified by the “war on drugs” to underlying root causes including racism, politics, and moral stigma.  The core contribution of The Constitution of the War on Drugs is to show that constitutional law is an additional such root cause.  The book does so by unearthing ways the Constitution has accepted and abetted carceral addiction policy.  In pointing to constitutional law as a root cause of the drug war and, so, as a potential site for contestation against carceral drug policy, the book connects criminal law, health law, and constitutional law in ways that should enrich all three fields.

For all the book’s strengths, however, The Constitution of the War on Drugs does not go far enough in mapping the interaction of constitutional law and addiction policy that it uncovers.  In surveying “near misses” during the twentieth century when constitutional litigation came close to invalidating prohibitionist drug policies, the book limits its study to constitutional law’s negative potential to impede carceral drug policies.  This prohibitionary approach to constitutionalism leaves unaddressed and unrecognized important ways that constitutional law shapes which addiction policies are enacted in the first place — ways constitutional law influences the repeated choice of carceral drug policy over more effective evidence-based policies such as investments in treatment, housing, and social supports.  Doing so misses promising contemporary sites of contestation and risks playing into President Nixon’s brilliantly pernicious conceptual framing of addiction policy as a punitive war on drugs.  The book’s approach also risks bolstering contemporary anti-regulatory trends illustrated by ongoing attacks on the administrative state.  In further developing the interaction of constitutional law and addiction policy that The Constitution of the War on Drugs uncovers, future scholars should consider thick, affirmative conceptions such as Roberts’s freedom constitutionalism or Parmet’s public health constitutionalism.

Prior related post:

• Latest episode of "Drugs on the Docket" podcast engages with David Pozen and his new book, The Constitution of the War on Drugs