Have you ever thought about how much the modern War on Drugs has affected our constitutional order? I don’t mean for policy purposes, but in terms of the scope of federal power and violation of a whole host of rights. So much of modern jurisprudence—and not just with respect to criminal procedure—is tied to drug‐interdiction and prosecution policies that began in the 1970s. As I write in the latest National Affairs,
Beyond the modern drug war’s legally dubious initiation, the strained legal interpretations and yawning exceptions officials have made to sustain the effort continue to warp our constitutional system. In prosecuting and expanding the war on drugs, the federal government has racked up colossal amounts of debt, fostered state protectionism, adopted countless new federal crimes, and invaded foreign countries without congressional authorization. Meanwhile, government actors at all levels have undermined Americans’ freedoms of expression and religious exercise, deprived citizens of their rights to vote and bear arms, authorized warrantless searches and seizures of property without due process, and thrown tens of thousands of people — disproportionately racial minorities — into overcrowded prisons for sentences that are out of step with the crimes they’ve committed. These actions have changed our understanding of such foundational principles as limited government, federalism, and the separation of powers, all while casting doubt on America’s commitment to the rule of law.
Read the whole thing.