The End of the War on Drugs, the Peace Dividend and the Renewed Fourth Amendment?

Abstract

The War on Drugs profoundly eroded the Fourth Amendment. D.C. Circuit Court of Appeals Judge Harry T. Edwards summed it up in the midst of the war when he expressed “[his] growing concern about the degree to which individual rights and liberties appear to be falling victim to the Government’s ‘War on Drugs.’” So many of the Court’s Fourth Amendment decisions involved drugs and consistently shrank basic protections. Recent develops suggest that a broad coalition now recognizes that the War on Drugs was a failure. Indeed, legislation like the First Step Act, passed by this extraordinarily dysfunctional Congress, is a measure of that consensus. If the War is over or ending, will the Court breathe life back into the Fourth Amendment? Again, Judge Edwards raised the question in 1990, when he stated, “. . . when the war is over, we find that departures from constitutional norms, legitimized by the courts, have lasting and wide-ranging effects. Constitutional principles, once abandoned, are not easily reclaimed.” This article explores that question. This article reviews several areas where the post-Warren Courts eroded the Fourth Amendment, especially in response to the War on Drugs. It then turns to some more recent Supreme Court cases breathing some life back into the Fourth Amendment, including in areas involving modern technology. It then turns to several developments in state courts, especially in states that have legalized marijuana for medical or medical and recreational use. Those courts, whether by interpreting the Fourth Amendment or parallel state constitutional provisions, have started to rethink the War on Drugs. Both the Supreme Court’s expanded Fourth Amendment case law and the trend, if I am right that it is a trend, among state courts to reinvigorate Fourth Amendment protections, may undercut Judge Edwards’ prediction that the War on Drugs’ erosion of the Fourth Amendment will not be easily reclaimed.