“I Don’t Think We’ve Had Any [Constitutional] Crises in My Lifetime”: Judge Douglas H. Ginsburg

Supreme Court nominee Robert Bork’s 1987 confirmation hearings “changed everything, maybe forever,” according to lawyer and Supreme Court blogger Tom Goldstein, because they “legitimized [the] scorched-earth ideological wars” that have since become the norm.

After the Senate rejected Bork, President Reagan turned to a 41-year-old judge named Douglas H. Ginsburg, a recent appointee to United States Court of Appeals for the District of Columbia Circuit. Ginsburg, unlike Bork, didn’t have a long judicial record for the Senate to pick over. 

It wasn’t to be. After admitting that he’d smoked pot once in the 1960s and “on a few occasions in the ’70s,” Ginsburg withdrew his name from consideration. Justice Anthony Kennedy ended up filling the vacancy.

Over the next three decades, Judge Ginsburg built a reputation as one of the most influential and principled champions of “originalism,” a legal theory that emphasizes close adherence to the text of the law and the explicit intentions of the legislators at the time laws are passed. Now a senior judge on the DC appellate court and a professor at George Mason University’s law school, Ginsburg stars in the forthcoming PBS series A More or Less Perfect Union, his “personal exploration” of the history and future of the Constitution in American life.

Nick Gillespie sat down with Ginsburg to discuss his new show and its companion book, Voices of Our Republic; why the impeachment proceedings against President Donald Trump are in no way a “constitutional crisis”; his opinions of Neil Gorsuch and Brett Kavanaugh; whether it’s possible to rein in the administrative state; and why he has never regretted pulling his name from Supreme Court consideration 32 years ago.

Camera by Jim Epstein. Edited by Ian Keyser and Meredith Bragg. 

Photo credits:
CreditKen Cedeno/SIPA/Newscom
Oliver Contreras/Sipa USA/Newscom

Music from https://filmmusic.io
“Lightless Dawn” by Kevin MacLeod (https://incompetech.com)
License: CC BY (http://creativecommons.org/licenses/by/4.0/)

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Request a free autographed bookplate for “An Introduction to Constitutional Law”

On September 17, Randy Barnett and I launched our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. The reaction has vastly exceeded our already-high expectations. In less than two months, we have already sold more than 4,000 copies. The first printing was almost entirely sold out before the release date. And we are already well into the second printing. Amazon cannot keep the book in stock. (As we understand the process, Amazon only orders enough copies to fill backorders, but does not maintain excess supply.) A third printing should begin soon in advance of adoptions for the spring semester. Professors, please drop me a line if you’d like a review copy.

Randy and I have held book signings at Georgetown, the Cato Institute, the Heritage Foundation, and the Federalist Society National Lawyers Convention. At each event, all of the books for sale have sold out.

Autographed Bookplate—An Introduction to Constitutional Law

We regret that many people at these events were not able to obtain a signed copy. And there are many more readers who cannot attend our events in DC. As a thank you to our readers, we will be offering free autographed bookplates. If you send me a self-addressed stamped envelope before December 31, 2019, I will mail you back an autographed bookplate:

Josh Blackman
South Texas College of Law Houston
1303 San Jacinto Street
Houston, TX 77002

If your envelope arrives before December 2, 2019, I will do my best to ensure that the bookplate is sent out in advance of Christmas. Our book makes a perfect gift for law students, college students, high school students, or anyone interested in the Constitution. If you would like more than one bookplate, please include a copy of your invoice or receipt indicating the number of copies you purchased. We will also send bookplates to people who purchased an electronic copy of the book. (I am often asked to autograph a Kindle–I usually type a note on the cover page!)

We suspect the book will soon sell out at Amazon. Even if it is backordered, please place the order, and you should receive it in due time. You can also buy the book from Barrister Books or eCampus.com, which receives inventory directly from the publisher.

Finally, when you receive your book, please tweet a picture with the hashtag #IntroConLaw. Randy and I will be happy to retweet you!

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Request a free autographed bookplate for “An Introduction to Constitutional Law”

On September 17, Randy Barnett and I launched our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. The reaction has vastly exceeded our already-high expectations. In less than two months, we have already sold more than 4,000 copies. The first printing was almost entirely sold out before the release date. And we are already well into the second printing. Amazon cannot keep the book in stock. (As we understand the process, Amazon only orders enough copies to fill backorders, but does not maintain excess supply.) A third printing should begin soon in advance of adoptions for the spring semester. Professors, please drop me a line if you’d like a review copy.

Randy and I have held book signings at Georgetown, the Cato Institute, the Heritage Foundation, and the Federalist Society National Lawyers Convention. At each event, all of the books for sale have sold out.

Autographed Bookplate—An Introduction to Constitutional Law

We regret that many people at these events were not able to obtain a signed copy. And there are many more readers who cannot attend our events in DC. As a thank you to our readers, we will be offering free autographed bookplates. If you send me a self-addressed stamped envelope before December 31, 2019, I will mail you back an autographed bookplate:

Josh Blackman
South Texas College of Law Houston
1303 San Jacinto Street
Houston, TX 77002

If your envelope arrives before December 2, 2019, I will do my best to ensure that the bookplate is sent out in advance of Christmas. Our book makes a perfect gift for law students, college students, high school students, or anyone interested in the Constitution. If you would like more than one bookplate, please include a copy of your invoice or receipt indicating the number of copies you purchased. We will also send bookplates to people who purchased an electronic copy of the book. (I am often asked to autograph a Kindle–I usually type a note on the cover page!)

We suspect the book will soon sell out at Amazon. Even if it is backordered, please place the order, and you should receive it in due time. You can also buy the book from Barrister Books or eCampus.com, which receives inventory directly from the publisher.

Finally, when you receive your book, please tweet a picture with the hashtag #IntroConLaw. Randy and I will be happy to retweet you!

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Mutual Hatred Is All Democrats and Republicans Have to Offer

What defines a Republican, these days? How about a Democrat? That’s a difficult question to answer. After years of shifting priorities and ideologies, the beliefs of Republicans of today bear little resemblance to those of somebody of that affiliation from a decade ago, and the modern Democrat is just as far removed from recent predecessors. But one thing is clear: Republicans aren’t Democrats and hate anybody who is, and Democrats feel the same about Republicans.

Identity established by mutual loathing is pretty much all there is to go on when partisans of the two factions so rapidly change positions, sometimes despising one another for holding fast to beliefs they themselves once supported. In their struggle for control of the government, it’s all about loyalty and power, without any deeper meaning.

“Six in 10 Republicans say they would rather have a president who agrees with their political views but does not set a good moral example for the country, as opposed to one who sets a good moral example but does not agree with them politically. In contrast, 75% of Democrats prefer a president who sets a good moral example over one who agrees with their issue positions,” Gallup reported last week. “In 1999, Republicans’ and Democrats’ opinions were reversed, with Republicans favoring a president who sets a good moral example and Democrats preferring one who agrees with them politically.”

Of course, Republicans downplay moral issues at a time when the president from their party shows every sign of being morally crippled, just as Democrats deemphasized morals when their own occupant of the White House had his sleaziness on display. Then as now, tribal affiliation overcame any supposed principles.

The primacy of tribal affiliation has also been obvious in the course of semi-regular media pranks when partisans have been deliberately presented with misattributed quotes about public policy issues. Interviewees inevitably become befuddled when they learn that the “bad” opinion they dutifully denounced belonged, not so long ago, to the “good” side.

More broadly, the recent changes in party positions have involved “the transformation of the GOP into the party of Patrick J. Buchanan and Donald J. Trump—defined by cultural resentments, crude populism, and ethnic nationalism,” as Peter Wehner puts it in The Atlantic. At the same time, “the Democratic Party is embracing a form of identity politics in which gender, race, and ethnicity become definitional” along with progressive/socialist economics that are “fiscally ruinous, invest massive and unwarranted trust in central planners, and weaken America’s security.”

Such rapid shifts on issues and ideology have left little time for developing a strong basis of enthusiasm for what political partisans are supposedly for, but that’s left people plenty of energy left to expend on what they’re against.

“We find that while partisan animus began to rise in the 1980s, it has grown dramatically over the past two decades,” Shanto Iyengar and Masha Krupenkin, political scientists at Stanford, reported in a paper published last year. “As animosity toward the opposing party has intensified, it has taken on a new role as the prime motivator in partisans’ political lives. … today it is outgroup animus rather than ingroup favoritism that drives political behavior.”

That means politically partisan Americans are defining themselves not by what they have in common with allies, but by how much they hate their enemies. They may not have a good handle on what they’re fighting about but, damnit, they’re gonna fight.

Fifty-five percent of Republicans said Democrats are “more immoral” than other Americans, and 47 percent of Democrats said likewise about Republicans, as Pew Research noted last month. “The level of division and animosity—including negative sentiments among partisans toward the members of the opposing party—has only deepened” since the last survey three years ago.

Fifty-five percent of Republicans and 44 percent of Democrats say the party opposing their own is “not just worse for politics—they are downright evil,” according to a YouGov survey. Thirty-four percent of Republicans and 27 percent of Democrats say the other party “lack the traits to be considered fully human—they behave like animals.”

Factions that aren’t really firm about what they believe, shift positions, but are dead-set in their hatred for one another to the point of dehumanization? In a weird way, such partisan animus for its own sake sounds an awful lot like the ancient rivalry between the Blues and the Greens—the chariot teams turned political parties that played such a prominent role in sixth-century Byzantine political life. As with modern Republicans and Democrats it was never entirely clear what they stood for beyond opposition to one another, but rioting between the two factions ultimately burned half of Constantinople to the ground.

When the Blues and Greens set about burning down their city, they were encouraged by senators who hoped to seize the imperial throne for themselves. They sought to take advantage of the chaos.

Nothing much has changed over the centuries.

“Partisan negativity is self-reinforcing, that is, political elites are motivated to stoke negativity to boost their chances of reelection,” Iyengar and Krupenkin wrote in their 2018 paper.

Fundamentally, then, what defines Republicans and Democrats isn’t programs or beliefs or ideology—it’s achieving power and destroying the enemy in the process. What’s done once power is achieved—beyond grinding “evil” and “immoral” enemies into dust—is secondary at best.

Since platforms and ideas don’t really matter, there’s no room for finding common ground or cutting deals. Opposing political factions can compromise, for good or ill, on health care bills and defense schemes. But how do you split the difference when what separates you isn’t a matter of firm values or principles, but a mutual desire to seize total control and to smash all who don’t wear your gang colors?

Ultimately, the only way to keep the peace is to make sure there’s no prize to be won. So long as there’s a powerful government over which hateful partisans fight for dominance, we’re all in danger from the battling factions.

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Mutual Hatred Is All Democrats and Republicans Have to Offer

What defines a Republican, these days? How about a Democrat? That’s a difficult question to answer. After years of shifting priorities and ideologies, the beliefs of Republicans of today bear little resemblance to those of somebody of that affiliation from a decade ago, and the modern Democrat is just as far removed from recent predecessors. But one thing is clear: Republicans aren’t Democrats and hate anybody who is, and Democrats feel the same about Republicans.

Identity established by mutual loathing is pretty much all there is to go on when partisans of the two factions so rapidly change positions, sometimes despising one another for holding fast to beliefs they themselves once supported. In their struggle for control of the government, it’s all about loyalty and power, without any deeper meaning.

“Six in 10 Republicans say they would rather have a president who agrees with their political views but does not set a good moral example for the country, as opposed to one who sets a good moral example but does not agree with them politically. In contrast, 75% of Democrats prefer a president who sets a good moral example over one who agrees with their issue positions,” Gallup reported last week. “In 1999, Republicans’ and Democrats’ opinions were reversed, with Republicans favoring a president who sets a good moral example and Democrats preferring one who agrees with them politically.”

Of course, Republicans downplay moral issues at a time when the president from their party shows every sign of being morally crippled, just as Democrats deemphasized morals when their own occupant of the White House had his sleaziness on display. Then as now, tribal affiliation overcame any supposed principles.

The primacy of tribal affiliation has also been obvious in the course of semi-regular media pranks when partisans have been deliberately presented with misattributed quotes about public policy issues. Interviewees inevitably become befuddled when they learn that the “bad” opinion they dutifully denounced belonged, not so long ago, to the “good” side.

More broadly, the recent changes in party positions have involved “the transformation of the GOP into the party of Patrick J. Buchanan and Donald J. Trump—defined by cultural resentments, crude populism, and ethnic nationalism,” as Peter Wehner puts it in The Atlantic. At the same time, “the Democratic Party is embracing a form of identity politics in which gender, race, and ethnicity become definitional” along with progressive/socialist economics that are “fiscally ruinous, invest massive and unwarranted trust in central planners, and weaken America’s security.”

Such rapid shifts on issues and ideology have left little time for developing a strong basis of enthusiasm for what political partisans are supposedly for, but that’s left people plenty of energy left to expend on what they’re against.

“We find that while partisan animus began to rise in the 1980s, it has grown dramatically over the past two decades,” Shanto Iyengar and Masha Krupenkin, political scientists at Stanford, reported in a paper published last year. “As animosity toward the opposing party has intensified, it has taken on a new role as the prime motivator in partisans’ political lives. … today it is outgroup animus rather than ingroup favoritism that drives political behavior.”

That means politically partisan Americans are defining themselves not by what they have in common with allies, but by how much they hate their enemies. They may not have a good handle on what they’re fighting about but, damnit, they’re gonna fight.

Fifty-five percent of Republicans said Democrats are “more immoral” than other Americans, and 47 percent of Democrats said likewise about Republicans, as Pew Research noted last month. “The level of division and animosity—including negative sentiments among partisans toward the members of the opposing party—has only deepened” since the last survey three years ago.

Fifty-five percent of Republicans and 44 percent of Democrats say the party opposing their own is “not just worse for politics—they are downright evil,” according to a YouGov survey. Thirty-four percent of Republicans and 27 percent of Democrats say the other party “lack the traits to be considered fully human—they behave like animals.”

Factions that aren’t really firm about what they believe, shift positions, but are dead-set in their hatred for one another to the point of dehumanization? In a weird way, such partisan animus for its own sake sounds an awful lot like the ancient rivalry between the Blues and the Greens—the chariot teams turned political parties that played such a prominent role in sixth-century Byzantine political life. As with modern Republicans and Democrats it was never entirely clear what they stood for beyond opposition to one another, but rioting between the two factions ultimately burned half of Constantinople to the ground.

When the Blues and Greens set about burning down their city, they were encouraged by senators who hoped to seize the imperial throne for themselves. They sought to take advantage of the chaos.

Nothing much has changed over the centuries.

“Partisan negativity is self-reinforcing, that is, political elites are motivated to stoke negativity to boost their chances of reelection,” Iyengar and Krupenkin wrote in their 2018 paper.

Fundamentally, then, what defines Republicans and Democrats isn’t programs or beliefs or ideology—it’s achieving power and destroying the enemy in the process. What’s done once power is achieved—beyond grinding “evil” and “immoral” enemies into dust—is secondary at best.

Since platforms and ideas don’t really matter, there’s no room for finding common ground or cutting deals. Opposing political factions can compromise, for good or ill, on health care bills and defense schemes. But how do you split the difference when what separates you isn’t a matter of firm values or principles, but a mutual desire to seize total control and to smash all who don’t wear your gang colors?

Ultimately, the only way to keep the peace is to make sure there’s no prize to be won. So long as there’s a powerful government over which hateful partisans fight for dominance, we’re all in danger from the battling factions.

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An Off-Duty Indiana Police Officer Was Fired After Needlessly Harassing Black Shoppers

An off-duty Indiana constable has been fired after a video showed him harassing two Nordstrom Rack customers for being “suspicious.”

Aaron Joseph, one of the shoppers, posted a video of the incident to his YouTube channel last week. The video shows Lawrence Township Constable Daryl Jones, who is white, interacting with Joseph and his cousin, who are black, after they finished shopping.

WHTR reports that the pair noticed Jones eyeing them inside of the store, following them outside of the store, and staring at their license plate in the parking lot. The men decided to drive to the front of the store in the event he decided to pull them over.

Jones approaches the side of their vehicle and tells them to show their driver’s licenses. When they ask his reasoning, Jones says, “Because I told you to.” He then threatens to call backup if they don’t follow his commands.

In the video, Joseph and his cousin ask Jones to call a supervisor. Jones verbally refuses. The men continue to question the grounds for the stop. 

“I got my rights to do anything I want to do. I’m a police officer,” Jones shouts inside the car. Jones then calls for backup as Joseph and his cousin continue to challenge the stop. 

A few minutes later, an officer with the Indianapolis Metropolitan Police Department (IMPD) responds to the call.

Jones tells the IMPD officer that the men “got a bunch of stuff” inside the store and then drove so that he couldn’t see their license plate. Joseph and his cousin push back on the narrative, saying that they were just shopping inside. At one point, Jones even admits that the two men had, in fact, paid for their items and did not steal anything.

After a conversation with Jones, the IMPD officer tells the men that they are okay to leave.

WHTR reports that Lawrence Township Chief Constable Terry Burns fired Jones within two hours of watching the video.

Reason reached out to Burns for comment and will update this post when he responds. 

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An Off-Duty Indiana Police Officer Was Fired After Needlessly Harassing Black Shoppers

An off-duty Indiana constable has been fired after a video showed him harassing two Nordstrom Rack customers for being “suspicious.”

Aaron Joseph, one of the shoppers, posted a video of the incident to his YouTube channel last week. The video shows Lawrence Township Constable Daryl Jones, who is white, interacting with Joseph and his cousin, who are black, after they finished shopping.

WHTR reports that the pair noticed Jones eyeing them inside of the store, following them outside of the store, and staring at their license plate in the parking lot. The men decided to drive to the front of the store in the event he decided to pull them over.

Jones approaches the side of their vehicle and tells them to show their driver’s licenses. When they ask his reasoning, Jones says, “Because I told you to.” He then threatens to call backup if they don’t follow his commands.

In the video, Joseph and his cousin ask Jones to call a supervisor. Jones verbally refuses. The men continue to question the grounds for the stop. 

“I got my rights to do anything I want to do. I’m a police officer,” Jones shouts inside the car. Jones then calls for backup as Joseph and his cousin continue to challenge the stop. 

A few minutes later, an officer with the Indianapolis Metropolitan Police Department (IMPD) responds to the call.

Jones tells the IMPD officer that the men “got a bunch of stuff” inside the store and then drove so that he couldn’t see their license plate. Joseph and his cousin push back on the narrative, saying that they were just shopping inside. At one point, Jones even admits that the two men had, in fact, paid for their items and did not steal anything.

After a conversation with Jones, the IMPD officer tells the men that they are okay to leave.

WHTR reports that Lawrence Township Chief Constable Terry Burns fired Jones within two hours of watching the video.

Reason reached out to Burns for comment and will update this post when he responds. 

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Young America’s Foundation Excommunicates Michelle Malkin for Defending Nick Fuentes

Young America’s Foundation (YAF) has removed Michelle Malkin, a right-wing writer and pundit, from its roster of featured speakers. Malkin, the author of a number of books—including, most recently, Open Borders Inc: Who’s Funding America’s Destruction?—has toured campuses as part of YAF’s speakers bureau for 17 years.

The firing comes as a result of Malkin’s vocal support for 22-year-old far-right provocateur Nick Fuentes and his allies, the groypers (yes, that’s what they call themselves).

“YAF gives a platform to a broad range of speakers with a range of views within the mainstream of conservative thought,” wrote YAF. “Immigration is a vital issue that deserves robust debate. But there is no room in mainstream conservatism or at YAF for holocaust deniers, white nationalists, street brawlers, or racists.”

Fuentes, a former fellow traveler of alt-right leader Richard Spencer, has a long history of racist and anti-Semitic comments. While he has attempted to distance himself from the alt-right—he characterizes his views as nationalist rather than racialist—it’s clear that what he means by “America First” is white nationalism. Indeed, he called conservative writer Matt Walsh a race traitor for inveighing against the El Paso shooter, and he has opined that Jim Crow was no big deal.

Needless to say, the intellectual leaders of the campus conservative movement should be working to expel the groypers. But Malkin has come to their defense, recently describing Fuentes favorably as “one of the New Right leaders” and deriding his critics as “cringe.” After YAF tweeted the above statement condemning racists and Holocaust deniers, Malkin fired back that the “keepers of the gate” were trying to silence her for defending “unjustly prosecuted Proud Boys, patriotic young nationalists/groypers & demographic truth-tellers.”

YAF then fired Malkin. (She did not immediately respond to a request for comment.)

This was clearly a necessary move, though it is likely to further inflame the groypers, who have recently turned several events featuring more mainstream conservatives into embarrassing spectacles for the right. The groypers have been targeting Ben Shapiro, Turning Point USA, and even Donald Trump Jr.

Malkin’s supporters are likely to argue that mainstream conservatism—what she calls Conservatism Inc., as there is always some shadowy corporate agenda at work in the minds of the immigration restrictionists—is attempting to silence or cancel her, and that this is hypocritical given the conservative outrage whenever the left does this. But no one is obligated to extend a speaking platform, especially when that platform is supposed to represent a particular point of view. It’s not censorship for YAF to declare that it would rather feature a less xenophobic author.

If someone does invite Malkin to speak on a campus, the anti-censorship coalition is obliged to object if a public university tries to cancel the talk or if student-activists try to shut it down. But no one needs to defend Malkin’s actual ideas. On the contrary, conservatives who care about individual liberty and racial equality should denounce and disassociate from them as swiftly as possible.

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Young America’s Foundation Excommunicates Michelle Malkin for Defending Nick Fuentes

Young America’s Foundation (YAF) has removed Michelle Malkin, a right-wing writer and pundit, from its roster of featured speakers. Malkin, the author of a number of books—including, most recently, Open Borders Inc: Who’s Funding America’s Destruction?—has toured campuses as part of YAF’s speakers bureau for 17 years.

The firing comes as a result of Malkin’s vocal support for 22-year-old far-right provocateur Nick Fuentes and his allies, the groypers (yes, that’s what they call themselves).

“YAF gives a platform to a broad range of speakers with a range of views within the mainstream of conservative thought,” wrote YAF. “Immigration is a vital issue that deserves robust debate. But there is no room in mainstream conservatism or at YAF for holocaust deniers, white nationalists, street brawlers, or racists.”

Fuentes, a former fellow traveler of alt-right leader Richard Spencer, has a long history of racist and anti-Semitic comments. While he has attempted to distance himself from the alt-right—he characterizes his views as nationalist rather than racialist—it’s clear that what he means by “America First” is white nationalism. Indeed, he called conservative writer Matt Walsh a race traitor for inveighing against the El Paso shooter, and he has opined that Jim Crow was no big deal.

Needless to say, the intellectual leaders of the campus conservative movement should be working to expel the groypers. But Malkin has come to their defense, recently describing Fuentes favorably as “one of the New Right leaders” and deriding his critics as “cringe.” After YAF tweeted the above statement condemning racists and Holocaust deniers, Malkin fired back that the “keepers of the gate” were trying to silence her for defending “unjustly prosecuted Proud Boys, patriotic young nationalists/groypers & demographic truth-tellers.”

YAF then fired Malkin. (She did not immediately respond to a request for comment.)

This was clearly a necessary move, though it is likely to further inflame the groypers, who have recently turned several events featuring more mainstream conservatives into embarrassing spectacles for the right. The groypers have been targeting Ben Shapiro, Turning Point USA, and even Donald Trump Jr.

Malkin’s supporters are likely to argue that mainstream conservatism—what she calls Conservatism Inc., as there is always some shadowy corporate agenda at work in the minds of the immigration restrictionists—is attempting to silence or cancel her, and that this is hypocritical given the conservative outrage whenever the left does this. But no one is obligated to extend a speaking platform, especially when that platform is supposed to represent a particular point of view. It’s not censorship for YAF to declare that it would rather feature a less xenophobic author.

If someone does invite Malkin to speak on a campus, the anti-censorship coalition is obliged to object if a public university tries to cancel the talk or if student-activists try to shut it down. But no one needs to defend Malkin’s actual ideas. On the contrary, conservatives who care about individual liberty and racial equality should denounce and disassociate from them as swiftly as possible.

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If Biden Won’t Support Legalization Until We Know Whether Marijuana Is a ‘Gateway Drug,’ He Will Never Support Legalization

Former Vice President Joe Biden says he is not prepared to support ending the federal ban on marijuana until science clarifies “whether or not it is a gateway drug.” Taking him at his word, that means Biden, a leading contender for the 2020 Democratic presidential nomination, will never support marijuana legalization.

During a town hall in Las Vegas on Saturday, Biden said states should be free to legalize marijuana but once again reserved judgment about whether national prohibition should be repealed. “The truth of the matter is, there’s not nearly been enough evidence that has been acquired as to whether or not it is a gateway drug,” he said. “It’s a debate, and I want a lot more before I legalize it nationally. I want to make sure we know a lot more about the science behind it….It is not irrational to do more scientific investigation to determine, which we have not done significantly enough, whether or not there are any things that relate to whether it’s a gateway drug or not.”

Contrary to Biden’s implication, there has been a lot of research on this question during the last half-century or so. While studies have consistently found an association between cannabis consumption and use of other illegal drugs, the nature of that relationship remains controversial, and it probably always will.

One possible explanation for the correlation that worries Biden is that the experience of using marijuana makes people more likely to try other illegal drugs. That’s the explanation Biden has in mind when he says marijuana might be a “gateway drug,” a concern he also voiced during the Obama administration. But another possible explanation is that people who use marijuana are different from people who don’t in ways that also affect their likelihood of using other drugs. Pre-existing differences in genetics, personality, and environment could explain both tendencies.

The psychologist Andrew Morral and his colleagues at the RAND Drug Policy Research Center have shown that an underlying propensity to use drugs, combined with the relative availability of different intoxicants, could entirely account for the three phenomena emphasized by advocates of the gateway theory: 1) that people tend to use marijuana before other illegal drugs, 2) that people who use marijuana are more likely to use other illegal drugs, and 3) that the likelihood of progression increases with the frequency of marijuana use. Their mathematical model did not disprove the gateway theory, but it did prove that the gateway theory is not necessary to explain these observations. Morral et al. concluded that “available evidence does not favor the marijuana gateway effect over the alternative hypothesis that marijuana and hard drug initiation are correlated because both are influenced by individuals’ heterogenous liabilities to try drugs.”

Several studies have sought to test the gateway theory by taking into account other variables that may be independently associated with drug use. A longitudinal study of teenagers and young adults in New Zealand, for example, found a strong association between frequency of cannabis consumption and use of other illegal drugs after adjustment for nearly three dozen potential confounding variables. But as Morral et al. pointed out, even such extensive efforts to control for confounders are unlikely to do so perfectly. They calculated that when adjustment for confounding “fails to capture just 2% of the variance in drug use propensity,” marijuana users “appear to have odds of initiating hard drugs that are twice as great as non-users of marijuana.” Hence “it is hardly surprising that controlling for these covariates does not eliminate the association between marijuana and hard drug use.”

Another approach examines this association in twins, who share the same home environment and have similar or, in the case of monozygotic pairs, identical genes. An Australian study found that in cases where one twin had used marijuana before turning 17 and the other had not, the first twin was more than twice as likely to use opioids, regardless of whether the twins were identical or fraternal and even after adjusting for several potential confounders. A similar study based on the Vietnam Era Twin Registry found that subjects who had used marijuana before turning 18 were nearly three times as likely to use opiates as co-twins who had not. In a study of Dutch twins, the risk ratios were even higher: The subjects who had used marijuana at 17 or younger were more than 16 times as likely as their co-twins to report “hard drug” use, for instance.

Even these seemingly compelling results do not rule out the possibility that pre-existing differences account for the associations. Whatever situational factors explain why one twin uses marijuana as a minor and the other does not may also explain why one uses “hard drugs” and the other does not. “The observation that familial factors do not entirely explain the association between early cannabis use and subsequent [drug] use, while suggesting a potential causal role for cannabis use in the development of other illicit drug use, does not prove such an association,” the authors of the Dutch study noted. “There may be other factors, especially aspects of the non-shared environment (e.g., peer affiliations) preceding the onset of cannabis use that might account for the observed associations.”

Even if it’s true that trying marijuana makes people more likely to try other drugs, the policy implications are not obvious. If “the legal status of marijuana makes it a gateway drug,” as a 1999 report from the organization that became the National Academies of Sciences, Engineering, and Medicine surmised, legalizing cannabis could reduce consumption of other drugs. There is some evidence that has happened in states that have legalized marijuana for medical or recreational use.

It’s not clear what sort of research Biden imagines will answer this question once and for all, barring a controlled, randomized experiment with human subjects, which would be unethical as well as impractical. Possibly he is just leaving himself wiggle room to eventually support federal legalization (which two-thirds of Americans and three-quarters of Democrats favor) without alienating voters who are still leery of the idea.

Before New York Gov. Andrew Cuomo decided to support marijuana legalization last December, he likewise worried that “marijuana leads to other drugs, and there is a lot of proof that is true.” Less than two years later, Cuomo changed his mind. The issue was not decisively resolved in the interim.

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