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