The Lawfare Podcast Lawfare Archive: David Pozen on ‘The Constitution of the War on Drugs’
Sep 28, 2025
David Pozen, a constitutional law expert at Columbia Law School, dives deep into the complexities of the war on drugs. He discusses how constitutional doctrines have failed to curb drug prohibitions, despite their implications for personal autonomy and equality. Pozen critiques the punitive nature of current drug policies and highlights the racial injustices involved. He also explores the impact of recent political shifts towards decriminalization and the significance of privacy arguments that have struggled in court. A thought-provoking examination of law and society!
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Police Power Expanded Into The Home
- State police powers initially excluded purely private conduct, but early 20th-century doctrine expanded state reach into private homes.
- That doctrinal shift enabled states to criminalize private drug consumption and manufacture.
From Tax Tools To Commerce Prohibitions
- Early federal drug strategy used the tax power, e.g., the Harrison Tax Act, to regulate narcotics before Congress relied on the Commerce Clause.
- Timothy Leary's self-incrimination challenge to the Marijuana Tax Act succeeded but prompted Congress to switch to direct prohibitions under the Commerce Clause.
New Deal Settlement Enabled Punitive Laws
- The New Deal settlement made courts deferential to economic and social regulation while preserving robust review in select civil liberties areas.
- That deference later limited courts' ability to block punitive drug policies despite their harms.
