After decades of waging a ruinous and counterproductive war on drugs, the U.S. government is finally taking steps in a new direction.
President Biden has issued mass pardons for marijuana possession offenses and urged the Drug Enforcement Administration to reschedule pot, so that it may be legally prescribed by physicians. The Food and Drug Administration has been teeing up clinical trials for MDMA and magic mushrooms. Lawmakers from both parties have endorsed “harm reduction” strategies to combat the opioid crisis. Compared to the zero-tolerance policies of the recent past, this emerging approach to drug control is less focused on criminal punishment and more attentive to the costs and benefits of different substances and interventions.
Although few recall it now, the same basic approach almost won out a half-century ago—in the courts. Litigants brought hundreds of constitutional challenges to punitive drug laws during the 1960s and 1970s. And they secured pathbreaking rulings from federal and state judges who deemed the laws arbitrary, authoritarian, and cruel.
Almost all of those rulings were narrowed or overturned by the 1980s, paving the way for the escalation of drug penalties and militarization of drug enforcement under President Reagan and his successors. But this overlooked chapter in our constitutional history is worth revisiting. It shows how constitutional law could have denied the worst excesses of the war on drugs, instead of becoming ever more defined by them, and offers clues about how to resist draconian drug policies today.
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The 1960–70s turn toward the Constitution to fight punitive drug laws was in many ways a return. Throughout the late 1800s and early 1900s, opponents of such laws challenged them in court on grounds of government overreach. Even though they increasingly approved restrictions on the manufacture and sale of intoxicants, the authorities “were unanimous in maintaining that constitutional provisions protected possession,” as one scholar said in 1919. “[T]he inalienable rights possessed by the citizens … of seeking and pursuing their safety and happiness … would be but an empty sound,” the Kentucky Court of Appeals said ten years earlier, “if the Legislature could prohibit the citizen the right of owning or drinking liquor.”
This legal framework fell apart in the 1910s, never to return, after a wave of prohibitory laws swept the nation and courts embraced a broader view of the government’s regulatory powers. By the mid-twentieth century, state and federal lawmakers had constitutional carte blanche to penalize drug possession and consumption as well as production and distribution. They did so with mounting severity into the 1960s.
Over the course of that decade, however, a variety of developments put the question of drug rights back into play. Surging use of illicit drugs by Vietnam veterans, students, and college-educated professionals created new constituencies for reform. Government bodies issued report after report urging relaxation of the drug laws, especially the marijuana laws, as did establishment groups ranging from the American Bar Association and the American Medical Association to the Consumers Union and the National Council of Churches.
The National Commission on Marihuana and Drug Abuse, for instance, said in 1972 that intermittent use of marijuana “carries minimal risk to the public health” and recommended decriminalization. The Nixon administration’s health department sponsored a study—blocked from publication but leaked to journalists—that found young people’s use of psychedelics can be “highly moral, productive, and personally fulfilling.” The Ford administration put out a white paper arguing that drug policy be refocused on substances such as heroin that have “the highest costs to both society and the user.”
Reform-minded lawyers saw an opportunity. Building on the Warren Court’s civil liberties decisions, they began to argue that specific drug bans may violate the Constitution even if the government has expansive authority to regulate drugs in general. And many judges responded with newfound sympathy. The defendant in a low-level drug case, two Michigan justices said in an opinion that drew national headlines, “could have been any mother’s son or daughter.”
Some judges in the 1970s held that classifying marijuana as a narcotic, or together with narcotics, is so illogical as to violate the Constitution’s Equal Protection Clause. That clause, the Supreme Court had instructed, requires criminal classifications to be at least minimally reasonable. Drawing on the latest medical research, these judges determined that lumping marijuana with the most dangerous substances fails even this minimal requirement while, in the view of the Connecticut Superior Court, “undermin[ing] a fundamental respect for the law” and imposing “staggering” social costs. Had this line of rulings prevailed, marijuana would have been removed from the most restrictive drug schedules—fifty years before President Biden’s plea to the D.E.A. to do just that.
Some judges in the 1970s argued that criminal bans on “soft drugs” violate the right to privacy implicit in the Due Process Clause. In light of the Court’s recent privacy decisions involving contraception and abortion, retired Justice Tom Clark said in 1972 that his former colleagues “might find it difficult to uphold a prosecution” for possession of marijuana. The Alaska Supreme Court refused to uphold such a prosecution three years later, in a ruling that is still cited by international lawyers as “[t]he early land mark case on decriminalization for constitutional reasons.” Had the constitutional case for marijuana decriminalization prevailed, millions of Americans—including disproportionate numbers of Black and Brown Americans—would have been spared harassment, humiliation, and arrest at the hands of police officers looking (or pretending to look) for pot.
Some judges in the 1970s struck down criminal penalties for drug offenses as “cruel and unusual punishments” in contravention of the Eighth Amendment. After the Supreme Court held in 1962 that it is impermissibly cruel to punish people for the status of being an addict, a series of lower courts reasoned that it must likewise be cruel to punish them for procuring or consuming a drug to which they’re addicted. Other courts threw out long prison sentences for nonviolent, nontrafficking offenses as needlessly excessive. Had these decisions taken hold, harm reduction principles would have become part of our supreme law and helped check the explosion of the prison population.
Finally, some judges in the 1970s ruled that drug bans infringe the “free exercise” of religion guaranteed by the First Amendment when the drugs at issue serve a sacramental function. These rulings relied on a 1964 decision by the California Supreme Court, which protected the Native American Church’s ceremonial use of peyote. Although that decision was widely followed, judges were wary of extending it to other sects or substances. Had the effort to extend such religious exemptions succeeded, many more adults would have had legal access to the “classical psychedelics” that are now entering therapeutic practice.
By the mid-1980s, the drug war was in full swing and these constitutional arguments had faded into obscurity. They were well within the mainstream of constitutional thought in the 1970s, however. Even among the judges who rejected these arguments, a striking share not only acknowledged their force but also expressed open skepticism of the drug laws they upheld.
In defense of their decisions, these judges cited the value of judicial restraint and warned of the legal chaos that could result if they recognized too many claims of personal liberty or constitutionalized hard calls about the dangerousness of various substances. They had a point, even if they tended to overstate it. The pro-regulatory model of judicial review that liberals had championed ever since the New Deal, which demanded only a “rational basis” to justify most government measures, had not been designed to address policy failure. Many judges didn’t know what to do with a set of criminal justice and public health policies that were themselves alleged to be criminogenic and a threat to public health.
Constitutional law could have denied the worst excesses of the war on drugs, instead of becoming ever more defined by them, and offers clues about how to resist draconian drug policies today.