“One of the major problems of our society”: symbolism and evidence of drug harms in U.S. Supreme Court decisions

Abstract

When a government action impinges on important individual rights, the United States Supreme Court is compelled to identify the harms it perceives in a behavior or practice in order to assess the constitutionality of a statute, a government policy, or a penalty. We select the six most recent cases in which the Court has expressed views about the harms it attributes to drug use. We conclude that the recent history of such Court justifications shows that they are almost entirely symbolic. Although several Justices in minority opinions have themselves made this point, only in the most recent such Court decision did the majority label a government action against drugs as symbolic and thereby conclude that it did not justify the infringement of constitutional rights involved. This view of the Supreme Court is the best glimpse available of the kind of arguments official policy-makers rely on to justify drug proscriptions.