In the present day, the Jotwell web site (which opinions new authorized scholarship) has printed my overview of Columbia regulation Professor David Pozen’s essential new ebook, The Structure of the Struggle on Medicine. The overview is entitled “The Struggle on Medicine as a Constitutional Failure.” Listed here are some excerpts:
If one of many functions of constitutional regulation is to guard liberty towards abuses of presidency energy, the Struggle on Medicine have to be thought to be considered one of America’s biggest constitutional failures. Over the past century, and particularly since its enlargement starting with the Managed Substances Act of 1968, the Struggle on Medicine has led to 1000’s of useless deaths, the imprisonment of a whole bunch of 1000’s of individuals, and extreme violations of civil liberties—all with out doing a lot to curb the social issues of drug abuse and habit. With uncommon exceptions, constitutional regulation has achieved little to curb these nice evils.
In The Structure of the Struggle on Medicine, David Pozen offers us probably the most via and insightful overview of this failure thus far. As he demonstrates, there have been numerous believable constitutional arguments for curbing the Struggle on Medicine that—if accepted by the courts—may need considerably restricted at the very least probably the most extreme abuses. However, for probably the most half, they had been rejected. He additionally affords helpful options for future technique by drug regulation reformers.
Pozen’s ebook is a powerful achievement, and there are various worthwhile classes in it for each constitutional regulation students and people within the Struggle on Medicine and felony justice. However I do have some reservations about each his historic and doctrinal evaluation, and his normative prescriptions.
As Pozen ably paperwork, the constitutional stage for the fashionable Struggle on Medicine was set by two main developments of the Progressive and New Deal eras. The primary was an enlargement within the understanding of state “police energy.” Beforehand, many paternalistic laws had been prone to be struck down below the Due Course of Clause of the Fourteenth Modification or its state equivalents. The rise of anti-gambling and alcohol prohibition actions helped change that, main courts to offer state governments extra leeway. This undermined potential individual-rights challenges to drug prohibition.
The second massive shift was the huge enlargement of federal regulatory energy below the Commerce Clause, with selections like Wickard v. Filburn (1942), giving the federal government the facility to control nearly any seemingly business exercise, irrespective of how native….
Whereas these early twentieth century developments opened the door to drug prohibition, Pozen explains that some jurisprudential developments for the reason that Nineteen Sixties made constitutional challenges to the Struggle on Medicine doubtlessly possible.
Starting with Griswold v. Connecticut (1965), which struck down a state regulation banning distribution of contraceptives to married {couples}, the Supreme Courtroom issued a collection of selections defending varied private liberties below the Due Course of Clause of the Fourteenth Modification, notably these regarding copy and bodily autonomy. This opened up the chance that the fitting to take unlawful medicine is likely to be equally protected.
Later, a extra conservative Supreme Courtroom as soon as once more started to implement limits on federal Commerce Clause authority, beginning with United States v. Lopez (1995). This created hope that at the very least some varieties of federal drug prohibition is likely to be invalidated as past the scope of congressional energy.
Sadly, neither strategy had a lot success…..
Pozen’s in any other case thorough account does unduly neglect one essential side of the story: the truth that probably the most extreme drug conflict penalties are often reserved not for individuals responsible of mere use or possession of medicine, however for individuals who produce, promote, and distribute them. Because the New Deal period, left-liberal jurists—and even many conservatives—have been cautious of robust judicial overview of “financial” laws. This was on the root of each the New Deal Commerce Clause revolution (breaking down federalism restrictions to congressional energy) and the Supreme Courtroom’s rejection of judicial safety for many financial liberties and property rights.
Significantly curbing the Struggle on Medicine would have required courts to beat this allergy to scrutinizing “financial” regulation. Progressives who (rightly) search stronger judicial scrutiny of the Struggle on Medicine might want to overcome at the very least a few of their scruples relating to judicial overview of financial transactions….
Within the overview additionally word some potential pathways for future progress, and urge opponents of the Struggle on Medicine to mix litigation with political motion.
The Struggle on Medicine is among the biggest injustices in American public coverage, and in addition one of many greatest constitutional points in trendy time. Pozen’s ebook is a significant contribution to our understanding of the related historical past and authorized doctrine.
