Pozen and the Puzzle of Counterfactuals

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Louis Michael Seidman 

                David Pozen’s carefully researched and brilliantly argued book on the Constitution and the War on Drugs is both illuminating and disturbing.  No surprise there.  Pozen is our country’s most inventive and interesting young constitutional scholar. 

The book is illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window.  Even today, Pozen argues, there are underexplored and plausible constitutional arguments supporting a personal right to drug use. 

The book is disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world – questions familiar to students of historiography and philosophy and that once divided the Critical Legal Studies movement but that have not been adequately discussed in modern normative constitutional scholarship. 

In this review, I concentrate on these problems.  I argue that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions about constitutional reform in general and about the reform Pozen suggests in particular.

The counterfactual problem is illustrated by Pozen’s bracing assertion that “It didn’t have to be this way.”  And, indeed, there is a sense in which it didn’t.  Pozen painstakingly explores a wide variety of doctrinal avenues that might have plausibly restricted or eliminated the decades-old, failed experiment in brutality and injustice that was the War on Drugs.   Judges who were so inclined could have resorted to principles of substantive due process, federalism, protection against cruel and unusual punishment, free speech, and freedom of religion to rein in the abuses.

Rigid structuralism and false necessitarianism are the enemies of political engagement and reform.  Years ago, a branch of Critical Legal Studies powerfully argued that the belief in law’s inevitability was unnecessarily paralyzing.  Pozen speaks for this tradition when he insists that things could have been – and could be – different. 

But another branch of Critical Legal Studies embraced versions of structuralism and neo-Marxism -- positions that, perhaps, Pozen should pay more attention to.  The problem with counter-factualism is illustrated by   the disturbing lacuna that appears whenever someone asserts that things could have been different.  The assertion always implies a dependent clause – things could have been different if . . . .  Well, if what?  After all things weren’t different, so asserting that they could have been always implies some other change that would have produced the alternative outcome. 

There is a similar gap in the assertion that “Things would have been better if. . . .”  Here, the missing dependent clause must specify the scope of the alternative that would have been better.  The War on Drugs was a moral and public policy disaster, so Pozen is on solid ground when he argues that things would have been better if it had not been waged.  Would things have been better if the Supreme Court had tried to stop it?  That’s a harder question.  Would they have been better if courts were more broadly empowered to answer for all of us the range of empirical and moral questions that bear on public policy questions?  That’s a harder question still.  Or maybe it’s actually  an easier question that poses harder questions for Pozen’s thesis.

Let’s focus first on the counterfactual problem.  Counterfactuals are most powerful when we are asked to imagine a small change and when the change might have resulted from a different choice made by one person or a small group of people.  Al Gore would have been President if Florida election officials had not chosen a butterfly ballot.  Or, to raise the question in a constitutional context, he would have been President (well, maybe he would have been President) if Justice O’Connor had joined the four dissenters in Bush v. Gore.

One might characterize the failure of constitutional law to deal with the War on Drugs in this fashion.  For example, if only a few justices had better understood the implications of Griswold v. Connecticut and Stanley v. Georgia, constitutional protection might have been extended to private drug use.  Focusing the counterfactual on individual agency serves useful purposes.  On one version of standard CLS argument, the revolution begins with our individual choices in our homes and in our workplaces.   For example, thousands of courageous conversations, between parents and children, brothers and sisters, friends and neighbors turned gay rights from a fringe movement into conventional wisdom. 

But as motivationally useful as this reminder is, another branch of CLS points to deeper structural problems.  Pozen himself seems to reject a “great man” theory of historical possibility in favor of a structural approach.  The problem with a constitutional response to the War on Drugs was not that, say, Justice Douglas failed to seize the moment.   Instead, he argues, failure resulted from entrenched modalities and anti-modalities of constitutional argument, from “cultural and institutional restraints,” from the relationship of social movements to constitutional change, and from “the refusal of the liberal professional-managerial class to align itself with subordinated racial minorities after the 1970s in any sort of anti-prohibition coalition.”

As the counterfactual becomes more sweeping, its force diminishes.  We can easily imagine Justice Douglas having a different view about the scope of Griswold’s penumbral rights, but it is much harder to imagine a transformed judicial and political culture where judge-led reform of our drug policy would flourish.  Of course, we can create utopian worlds completely different from our own, but what does that have to do with the world that we actually inhabit?

The counterfactual ambiguity intersects with ambiguity about the scope of the change that the counterfactual might have produce.   If one thinks very narrowly – wouldn’t it have been better if someone had called a halt to the War on Drugs? -- the answer seems obvious.  But would it have been better if the Supreme Court had attempted to do so?  Almost certainly, the attempt would have triggered a huge backlash.  It is not at all obvious that the Justices could have made their intervention stick.  We have some experience with this.  People debate long-term consequences of the Warren Court’s progressive interventions in favor of school integration, reproductive freedom, and electoral equality, but no one would claim that those efforts were an unalloyed success.  Many would argue that they ended in unambiguous failure.

One must wonder, too, about the Court’s capacity to make the kind of controversial and fine-tuned judgments that would have been required to reformulate drug policy.  Perhaps no such judgments would have been necessary to curb the worst abuses.  It doesn’t require much expertise to hold that a life sentence for possession of a single joint is cruel and unusual punishment.  But there was much more to the War on Drugs than barbaric punishment for marijuana possession.  There are fraught moral and empirical questions about the addictive quality of various drugs, about the most effective means of controlling their harmful effects, and about their putative benefits.  Do we really want nine isolated and unrepresented people sitting in their marble temple on First Street making these judgments for the rest of us?

That question leads to the broadest ambiguity about the scope of the proposed change:  Would it have been better if the Supreme Court put itself in charge of public policy questions more broadly?  A Supreme Court that ended the War on Drugs might also have opinions about, say, the Affordable Care Act, American involvement in the Ukrainian conflict, or the appropriate policies for dealing with food insecurity.  Yes, there were available constitutional arguments that the Court could have utilized to attack the drug problem, but good lawyers can and have found constitutional arguments to deal with these other problems as well.

Raising this broadest question circles back to the problem of the counterfactual world that Pozen asks us to imagine.  His argument seems to presuppose a Supreme Court composed of wise and sensible jurists who have effective and humane solutions for the problems that plague us.  In that counterfactual world, judicial intervention to deal with a wide variety of issues might make sense. 

But that is not our world and will not be any time soon.   We enter our culture wars with the judiciary that we have, not the one that we would like to have.    Do we really want the likes of Thomas, Alito, Gorsuch, and Kavanaugh making social policy for our country?  The question answers itself, but progressives who still imagine constitutional law saving us from our present difficulties refuse to ask it. 

Louis Michael Seidman is Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center. You can reach him by e-mail at seidman@georgetown.edu.