When the Supreme Court overturned Roe v. Wade in 2022, Justice Samuel Alito's majority opinion mocked "attempts to justify abortion" by asserting "a broader right to autonomy." After all, he wrote in Dobbs v. Jackson Women's Health Organization, that concept "could license fundamental rights to illicit drug use, prostitution, and the like." Alito thought it was obvious that "none of these rights has any claim to being deeply rooted in history."

Alito's blithe dismissal of a fundamental right to consume psychoactive substances reflects "constitutional amnesia," Columbia law professor David Pozen argues in The Constitution of the War on Drugs. It overlooks both the controversy provoked by the nation's early anti-drug laws and the hope inspired by subsequent legal assaults on prohibition. All of those challenges ultimately fizzled. But Pozen sees promise in "a model of rights review known as proportionality," which asks whether the burdens imposed by the drug war are commensurate with the corresponding benefits.

While some foreign courts have embraced that approach, it probably would not make much headway in U.S. courts, partly because it blurs the line between judges and legislators. Pozen's book nevertheless makes an important contribution to the drug policy debate by reminding us of the history that Alito ignored.