In Peru, Another Near Miss for Latin American Liberty


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On June 6, Peruvians will elect their next president. At the moment, the favorite to win is Pedro Castillo, a previously obscure teachers union leader who won the first round with 19 percent of the vote.

Castillo’s government program describes the “Free Peru” movement he leads as Marxist-Leninist, quotes Karl Marx and Friedrich Engels, and praises the legacies of Vladimir Lenin and Fidel Castro. It also calls for the abolition of the current constitution and the creation of a constitutional assembly, for the nationalization of “strategic sectors” of the economy, for the “regulation” of the free press, and for central economic planning under an “inverventionist…innovative, entrepreneurial, and protective state.” In recent days, Castillo has promised to expel all illegal immigrants from Peru in three days.

How did Peru, a country which the Cato Institute’s Ian Vásquez described in 2011 as “an increasingly successful market democracy,” end up on the verge of electing a Marxist-Leninist government? Much has to do with the broader context in Latin America, where 21st century socialism has survived during the last few years due to its opponents’ serial bungles, missed opportunities, and general ineptitude.

In 2018, just as there seemed to be hope for an end to the cash-strapped, hunger-inducing Chavista regime in Venezuela, which was running out of gasoline and desperately selling its gold reserves, dictator Nicolás Maduro and his Cuban puppet masters lured the hapless opposition parties into holding negotiations “to end the national crisis.”

 In May 2019, the opposition fell into the trapand not for the first timewhen National Assembly president Juan Guaidó, who had been recognized as Venezuela’s legitimate leader by more than 50 countries, agreed to hold talks with Maduro’s representatives in Norway. By September of that year, Guaidó had achieved nothing and had broken off the negotiations, but other opposition parties didn’t follow his lead and prolonged the talks with the Chavistas.

 After dividing their rivals, who couldn’t agree to a unified strategy for the 2020 parliamentary elections, Maduro and his party regained control of the National Assembly virtually unopposed. With Guaidó deprived of any official position, the European Union no longer recognized him as “interim president,” but only as a “privileged interlocutor.” Meanwhile, Maduro held on to powerwithout any end in sightby relying on Russian loans, Chinese debt relief, and Iranian gasoline exports to the country with the world’s largest oil reserves.  

Likewise, in Argentina, better days seemed to have arrived in 2015, when voters narrowly rejected Kirchnerist socialism after 12 years of spectacular misrule. The era was epitomized by the arrest of a former minister of President Cristina Fernández de Kirchner, José López, who was caught hiding USD $9 million in cash in the vault of a convent. Mauricio Macri, a businessman and former mayor of Buenos Aires, won that year’s presidential election on a promise to curb inflation and reduce poverty. But Macri refused to cut the deficit, reduce the debt, or slash bureaucracytough measures that were necessary at the outset of his government. Instead, he opted for a “gradualist” course that relied on attracting foreign investment and borrowing money on cheap global credit. The Kirchnerists’ Leviathan, meanwhile, survived mostly intact.

As journalist Marcelo Duclos explains, investors remained skeptical of an overregulated, debt-fueled economy while interest rates rose ever so slightly, increasing a default-prone Argentina’s borrowing costs. Not only did Macri fail to bring prosperity to Argentina; he also raised taxes and presided over an inflation level of 47 percent in 2018, as voters recalled how he had assured them that he would stabilize price levels easily. When he sought reelection the following year, Macri suffered a rout in the first round of voting as the Kirchnerists returned to power.       

Also, in Bolivia, a glimmer of hope emerged in late 2019 as Evo Morales, perhaps the most colorful figurehead of 21st century socialism after Hugo Chávezhe once suggested that female hormones in chicken caused homosexuality in menwas caught red-handed in a massive exercise of voter fraud. After he contested an election against former President Carlos Mesa, both the Organization of American States and the European Union detected “overwhelming” evidence of ballot manipulation. Facing nationwide protests, Morales quickly lost the military’s support and fled to Mexico.

The entire debate about Morales’ reelection should have been spurious. In 2016, Morales, who had governed Bolivia since 2006, held a referendum in order to alter the country’s constitution so as to allow him to run for reelection for a third consecutive time, but a majority of voters rejected his proposal. Morales, however, blamed his defeat on social media platforms, accusing them of corrupting the youth, and got the Supreme Court, which he had packed with his supporters, to approve his reelection bid in 2017.

After Morales’ ouster, however, his opponents took a series of missteps. The opposition-led interim government called an election but postponed it twice. Although it blamed the COVID-19 crisis, it also fed Morales’ narrative of a well-orchestrated, U.S.-led coup against his government. The opposition also failed to unite around a single candidate and, like Macri in Argentina, offered nothing but Keynesianism.

As Bolivian commentator Mauricio Ríos writes, the consensus among opposition candidates dictated “that the way out of the economic crisis, which was worsened but not caused by the pandemic, was to increase public debt and government spending.” This was exactly what their Morales-backed opponent, former finance minister Luis Arce, had done for years in a desperate attempt to offset a collapse in the prices of commodities, which accounted for 95 percent of Bolivia’s merchandise exports in 2017. In October 2020, Arce comfortably won the presidency in the first round with 55 percent of the vote. Morales promptly ended his foreign sojourn and returned to Bolivia.  

To add to this string of regretful events, the hard left gained a major triumph in Chile when it cajoled President Sebastián Piñera, who is often described as a neoliberal, into holding a referendum to change the 1980 constitution, the most successful by far in Latin America as measured by the economic results of its protections for private property and limitations on government: per capita income, poverty reduction, social mobility, and access to higher education. In 2019, a small hike in the price of subway fees led to violent protests in which perpetrators in Santiago, Chile’s capital, methodically burnt 80 subway stations, numerous tollbooths, large department stores, and even churches. As the destruction was being wrought, Diosdado Cabello, a Venezuelan Chavista of high rank, weighed in by claiming that a “Bolivarian breeze” had reached Chile.

Instead of standing up to the thuggery, however, Piñera capitulated and announced a referendum on the constitution, which a staggering 78 percent of voters decided to replace last October. According to Axel Kaiser, a Chilean academic, the country’s far left succeeded in selling “a narrative of failure not rooted in reality,” but which much of the media, the business establishment, and the political right believed nevertheless. A majority of voters, added Cato’s Vásquez, had rejected the “Chilean miracle” and opted to become, “in the best of cases, a mediocre Latin American country.”

This series of victories made 21st century socialists confident. As presidential elections were held in Ecuador and Peru on Sunday, April 11th, a confident Evo Morales  proclaimed that “the people” were about to back the return of Chávez’s “integrationist project.” But, as it turned out, the people had other plans. In Ecuador, Guillermo Lasso, a 66-year-old former banker with strong ties to the country’s libertarian community, won the election with 52 percent of the vote.

Lasso’s victory was far from guaranteed. In March, when voters first headed to the polls, he barely qualified for the runoff election after obtaining less than 20 percent of the vote, 12 points behind the 36-year-old Andrés Arauz, a dauphin of strongman Rafael Correa, who ruled Ecuador from 2007 until 2017. Lasso, however, offered a clear, unequivocal alternative to socialism; his platform included cuts in the value-added tax (VAT) and public spending, increased oil production, and a push for free trade deals on the global stage. Crucially, Lasso promised to get rid of a tax on the withdrawal of currency from Ecuador, where the U.S. dollar has been the official currency since 2000. Arauz, on the other hand, had published plans to use currency controls as a means to dedollarize the country, a measure opposed by 88 percent of the population.

As the media were confirming Lasso’s win, Hernando de Soto, a free market economist with no previous experience as a political candidate, was poised to qualify for the runoff in Peru. In 1986, de Soto published The Other Path, an influential book that showed how the underlying problem of informality in poor countries was not the informal workers themselves, but rather the dysfunctional and usually corrupt state bureaucracies that made formal property rights a privilege of the rich and well-connected. As he wrote for Reason in 2001, “‘extralegality’ is often perceived as a ‘marginal’ issue. In fact, it is legality that is marginal; extralegality has become the norm.”

De Soto’s emphasis on the lack of property rights as a primary source of poverty in much of the world revolutionized thinking about development. It also made him a target of assassination attempts by the Shining Path communist guerrilla group.

Alas, de Soto’s electoral success was too good to be true; as the vote count proceeded on Monday, he was knocked out of second place by Keiko Fujimori, daughter of strongman and former President Alberto Fujimori, the scourge of the Shining Path who governed Peru from 1990 to 2000. Since 2005, Alberto Fujimori, whom de Soto advised, has been in jail due to human rights abuses. In the upcoming runoff, Keiko will take on Castillo, who represents such a threat to the country’s recent prosperity that Peruvian Nobel laureate Mario Vargas Llosa, a classical liberal, has endorsed his rival.

Vargas Llosa’s support is significant because he lost to Alberto Fujimori in the pivotal 1990 election, after which, he writes, he “has combatted Fujimorismo systematically.” He also recalls that Keiko not only participated directly in her father’s dictatorship, but that she benefited from it, as she did later from money from Odebrecht, the Brazilian firm that ran a bribes-for-government-contracts schemes across the region, a scandal for which she served time in jail. Nevertheless, Vargas Llosa argues that Keiko “represents the lesser evil” and at least “a possibility to save our democracy,” whereas Castillo represents its certain demise.   

Such arguments, however, have proved insufficient until now. Castillo leads Fujimori comfortably in the polls42 to 31 percent according to one—which might not be surprising given the widespread rejection of the Fujimori family. The likelihood that a Marxist-Leninist will become Peru’s next president made me think of several former colleagues of mine who, in 2017, fled from Venezuela to Lima. Evidently, any enthusiasm about Peru’s success had to be tempered with the wisdom of an old viral meme. It read: “Migrating within Latin America is like moving from one cabin to another while inside the Titanic.”

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The “Essential” Free Exercise Clause, Forthcoming in the Harvard Journal of Law & Public Policy

On November 12, 2021, I shared a draft article titled What Rights are ‘Essential’? The 1st, 2nd, and 14th Amendments in the Time of Pandemic. As the title suggested, I wrote about all facets of the COVID-19 litigation: the free exercise of religion, the right to keep and bear arms, and the abortion cases. I also wrote an extended discussion of Jacobson v. Massachusetts. I was pleased that the Harvard Journal of Law & Public Policy agreed to publish the article.

Back in November, the world was a very different place. Chief Justice Roberts’s South Bay II superprecedent was the law of the land. Justice Barrett was on the bench. And the Cuomo litigation was already rippling through the courts. Two weeks later, the Court decided Roman Catholic Diocese. And in an instant, the legal landscape changed.

At that point, I decided to trifurcate my article. One article on the Free Exercise Clause, a second article on the Second Amendment, and a third article on Jacobson and the Fourteenth Amendment.

The Harvard JLPP will be publishing the first article, now titled The “Essential” Free Exercise Clause. This article is up to date, and concludes with Tandon v. Newsom. The Texas Review of Law & Politics will be publishing the second article, titled The “Essential” Second Amendment. I will post that draft shortly. The third article, which I am still working on, will be titled The Irrepressible Myth of Jacobson v. Massachusetts. I have also preserved a PDF of my original November article.

Here is the abstract of The “Essential” Free Exercise Clause:

In the span of a year, COVID-19 would affect every corner of the globe. During this period, governments were confronted with difficult choices about how to respond to the evolving pandemic. In rapid succession, states imposed lockdown measures that ran headlong into the Constitution. Several states deemed houses of worship as non-essential, and subjected them to stringent attendance requirements. In short order, states restricted the exercise of a constitutional right, but allowed the exercise of preferred economic privileges. And this disparate treatment was premised on a simple line: whether the activity was “essential” or “non-essential.” If the activity fell into the former category, the activity could continue. If the activity fell into the latter category, it could be strictly regulated, or even halted immediately. Houses of worship challenged these measures as violations of the Free Exercise Clause of the First Amendment.

This article provides an early look at how the courts have interpreted the “essential” Free Exercise Clause during the pandemic. This ongoing story can be told in six phases. In Phase 1, during the early days of the pandemic, the courts split about how to assess these measures. And for the first three months of the pandemic, the Supreme Court stayed out of the fray.

In Phase 2, the Supreme Court provided its early imprimatur on the pandemic. In South Bay Pentecostal Church v. Newsom, the Court declined to enjoin California’s restrictions on religious gatherings. Chief Justice Roberts wrote a very influential concurring opinion that would become a superprecedent. Over the following six months, more than one hundred judges would rely on Roberts’s opinion in cases that spanned across the entire spectrum of constitutional and statutory challenges to pandemic policies.

In Phase 3, the Roberts Court doubled-down on South Bay. A new challenge from Nevada, Calvary Chapel Dayton Valley Church v. Sisolak, upheld strict limits on houses of worship. Once again, the Court split 5—4. Justice Kavanaugh wrote a separate dissent. He treated the Free Exercise of Religion as a “most-favored” right. Under Justice Kavanaugh’s approach, the free exercise of religion is presumptively “essential,” unless the state can rebut that presumption. South Bay and Calvary Chapel would remain the law of the land through November.

Phase 4 began when Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett. The new Roberts Court would turn the tide on COVID-19 cases in Roman Catholic Diocese of Brooklyn v. Cuomo. Here, a new 5—4 majority enjoined New York’s “cluster initiatives,” which limited houses of worship in so-called “red” zones to ten parishioners at a time. Now, Chief Justice Roberts dissented. Roman Catholic Diocese effectively interred the South Bay superprecedent.

Phase 5 arose in the wake of Roman Catholic Diocese. Over the course of five months, the Court consistently ruled in favor of the free exercise of religion. South Bay II and Harvest Rock II enjoined California’s prohibitions on indoor worship. And Tandon v. Newsom recognized the right of people to worship privately in their homes.

We are now in the midst of Phase 6. States are beginning to recognize that absolute executive authority cannot go unchecked during ongoing health crises. Going forward, states should impose substantive limits on how long emergency orders can last, and establish the power to revoke those orders.

The COVID-19 pandemic will hopefully soon draw to a close. But the precedents set during this period will endure.

Current events always seem to detract from my planned research agenda. One year ago, I could not have fathomed writing any of these three articles. But here we are. At some point, I hope things will quiet down to allow me to work on my longer-term projects.

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The Deeper Problems with Justice Barrett’s Book Deal

Yesterday, I criticized Justice Barrett’s reported book deal with Sentinel, a conservative imprint. According to Politico, she will write about “how judges are not supposed to bring their personal feelings into how they rule.” I struggle to understand why a publisher would give Barrett a sizable advance for a book on this topic. She has been a judge for a short time, and has decided very few cases. Perhaps Sentinel predicted that Justice Barrett will generate a lot of buzz. She will go on a splashy book tour. She will speak to a wide range of groups and sell her feelings-free approach to judging, whatever that is. I fear this premature project could be problematic for Justice Barrett’s nascent tenure. Here, I will identify four principal problems.

First, what could Justice Barrett possibly have included in her book proposal about judging? I reviewed her appellate record last fall, and my tentative read was that she didn’t have many tough cases. As the junior judge on the Seventh Circuit, it was unlikely she would even have been assigned any significant majority opinions. On the Supreme Court, Justice Barrett has written two majority opinions, neither significant. Her only important writing to date was to rule that worshippers could not sing in a California church during the pandemic. (I’ll come back to this case later). Perhaps Professor Barrett had long ago worked out a complete theory of judging. If so, that’s news to me. I reviewed her law review articles last year. I didn’t see any evidence of some all-encompassing theory. And we certainly didn’t hear much about that theory during her confirmation hearing. Her testimony was lovely, but she stuck to general platitudes. How deep can this theory be that she worked out in the span of a few months?

Second, my greatest fear for this book is that Justice Barrett will set lofty standards for judging that her detractors will use to criticize, and even pressure her. Let’s say she praises the importance of stare decisis. What better way is there to keep feelings out of law than to stand by precedent? She may even cite her decision not to overrule Smith in Fulton. (She very conspicuously signaled that position during oral argument). Forevermore, if Justice Barrett wishes to overrule some precedent, her book can be used against her. Let’s say she explains why she needs to keep her Catholic thought out of her decisions. In the future, her book will be used against her in abortion and death penalty cases. Let’s say she insists that textualism is not a conservative jurisprudence, but is neutral. Hello Bostock II. (I query whether Justice Gorsuch’s devotion to textualism in his book may have greased the skids for Bostock). Justice Barrett’s job is too damn important to make unnecessary concessions in a book. Anything that can be used to exert influence over her in the future is an unforced error. Why? Why write this book now? Why give Justice Kagan ammunition to cow you into submission?

Third, I worry about the book tour. In my view, one of Justice Barrett’s greatest assets was that she was not from the Acela corridor. She hails from what Justice Scalia called the “vast expanse in-between.” This remove, I hoped, would insulate her from the demands of coastal-people-pleasing. Alas, writing a book–even with a conservative imprint–will force her to embark on a tour of coastal-people-pleasing. She will have to speak to audiences of different ideological perspectives. And she will have to custom-tailor her speech to appeal to those different audiences. Instead of giving a zealous defense of originalism, she will likely discuss some sort of watered-down jurisprudence. I know the switch, because I’ve done it before. I will give a very different accounting of originalism at, say, a Heritage Foundation talk, then I would at a Northeastern law school. Any good speaker knows his audience. Perhaps the only outlier on the Court is Justice Alito. He has an IDGAF approach to speeches. Look no further than his fiery 2020 Federalist Society address. I can’t see Justice Barrett taking this sort of message on the road–at least if she wants to sell some books. I hope she carefully reads Scalia Speaks and uses the Boss’s approach as a model.

Fourth, Sentinel, a conservative imprint, should have waited to see Justice Barrett’s conservative record before forking over two million dollars. My next point is grotesque, but I need to make it. Conservatives will not buy a book written from a disappointing Justice. If Justice Barrett follows the track of Justice Kavanaugh, then conservatives will soon write her off. Look no further than her COVID case. Can Justice Barrett go in front of a religious group, and explain why she ruled against worshipers’ right to sing? Of course, that question will be screened out. But people don’t forget.

Going forward, Justice Barrett faces perverse incentives. On the one hand, she will be marketing her book to conservative buyers. (Liberals will never forgive her for taking the Ginsburg seat). On the other hand, she will be deciding cases that could alienate conservative buyers. I don’t think the conflict of interest is inescapable, but it is obvious. After some reflection, I no longer think Supreme Court justices should write books, or go on book tours. There is a good reason why judges have limits on outside income. But, for whatever reason, multi-million dollar book advances are exempt.

I hope Justice Barrett takes this criticism in good faith. I had, and have high hopes for her. But so far, I question her judgment on and off the bench.

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“The Reconstruction Amendments: Essential Documents,” Vol. 1: The Antebellum Constitution and The Thirteenth Amendment.

In my last post, I described the general nature and theory behind the collection, “The Reconstruction Amendments: Essential Documents,” (2 volumes) (Kurt T. Lash, ed.) (University of Chicago Press, 2021).

 

In this post, I describe the theory and contents of Volume One, The Antebellum Constitution and the Thirteenth Amendment. This volume presents the antebellum constitutional debates which ultimately inform the framing and adoption of all three Reconstruction Amendments, and the public and legislative debates accompanying the framing and ratification of the Thirteenth Amendment. The two volumes are meant to be read (yes, read) in tandem; the debates and ideas documented in Volume One play key roles in the constitutional debates presented in Volume Two. That said, Volume One stands on its own as a documentary history of the antebellum national debate over whether the original Constitution was pro-slavery or anti-slavery (the current “1619 Project” debate), and the national abolition of slavery through the Thirteenth Amendment.

Volume One begins with documents representing the various theories of constitutional federalism that arose in the period between the Founding and the Civil War. The issue is important because theories of federalism later play key roles in the debates over the shape of the three Reconstruction Amendments (references to the Federalist Papers, for example, occur over and over again during the Reconstruction debates). Documents in this opening section include the Virginia and Kentucky Resolutions and “the principles of ’98,” the nationalist theories of John Marshall and Joseph Story, the radical state rights theories of John C. Calhoun, and James Madison’s elderly efforts to oppose both John Calhoun and John Marshall.

Readers may be surprised to learn that some of the strongest supporters of constitutional federalism during this period were northern abolitionists who relied on theories of federalism in their resistance to the nationalization of slavery. This is most dramatically illustrated in the state of Wisconsin’s 1850s decision to nullify the Fugitive Slave Act and reject the decisions of the Supreme Court.

Despite the wide-spread embrace of federalism, this same period also witnessed a growing nationalist interpretation of the originally federalist Bill of Rights. For example, the abolitionist Joel Tiffany insisted that the privileges and immunities of citizens of the United States included the rights declared in the first eight amendments (Tiffany, “A Treatise on the Unconstitutionality of Slavery”).

A similar example can be found in an 1859 speech by a young Republican congressman from Ohio who declared that the Privileges and Immunities Clause of Article IV impliedly bound the states to respect the federal Bill of Rights (John Bingham, “Speech Against the Admission of Oregon”). Bingham’s speech is critically important for anyone seeking to understand the theoretical roots of Bingham’s later drafts of the Privileges or Immunities Clause of the Fourteenth Amendment.

Much of the first half of Volume One presents the antebellum debates over slavery and its relationship to the original Constitution. These materials include the debates over slavery in the Philadelphia Convention, the Missouri admission debates, the rise of northern abolitionism, slave state efforts to suppress abolitionist literature, northern resistance to the extension of slavery into the territories and the Supreme Court’s decision in Dred Scott. Although the collection includes key congressional and political debates, the materials also include a vast array of voices from outside the halls of power demanding an end to the practice of chattel slavery. These include black activist David Walker’s “Appeal,” Susan B. Anthony’s “Let’s Make the Slave’s Case Our Own,” and Frederick Douglass’s “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?”

The Second Half of Volume One documents the country’s remarkable journey from proposing a pro-slavery Thirteenth Amendment in 1861 to ratifying the anti-slavery Thirteenth Amendment in 1865. In a last-ditch effort to stanch the secession movement, Congress passed the “Corwin Amendment” which declared that “no amendment shall be made to the Constitution” which would authorize Congress to “abolish or interfere” with slavery in the states. The gambit did not work and, despite being ratified by a number of states, this first Thirteenth Amendment was forgotten with the outbreak of Civil War.

The dramatic framing and passage of the second Thirteenth Amendment takes up the remainder of Volume One. Documents include anti-slavery amendment petitions from the Women’s Loyal National League, Charles Sumner’s failed efforts to broaden the language of the Thirteenth Amendment, Democratic opposition speeches declaring that the proposed abolition amendment was an unconstitutional attempt to alter an irrevocably pro-slavery Constitution, the House of Representatives’ failed first effort to pass the amendment, Frederick Douglass’s “The Final Test of Self-Government, and the dramatic second round of debates and a second vote that turned on the decision of a handful of Democrats who might, or might not, change their original vote.

Volume One closes with the public debates over the ratification of the Thirteenth Amendment. Most of these materials, as far as I know, have never appeared in any prior collection. The proposed amendment raised a host of difficult questions that were discussed in newspapers around the country.

Were the states of the soon-to-be defeated Confederacy still in the Union and, if so, should they be allowed to vote on (and potentially defeat) the proposed amendment? (“Is the Union Destroyed?” New York Times editorial). Would ratification result in Democrats taking control of Congress since the formerly enslaved population of the southern states would now count as a full five-fifths of a person for the purposes of congressional representation (and membership in the electoral college)? (“Dr. Lieber’s Letter to Senator E.D. Morgan,” New York Tribune).

Lincoln’s tragic assassination resulted in Vice President Andrew Johnson taking the lead in securing the abolition amendment’s ratification. Johnson established provisional governments in the south and prodded their governors to ratify the abolition amendment and, perhaps, “extend the elective franchise to all persons of color who can read the Constitution” in order to quell congressional opposition to readmitting the southern states (Pres. Johnson to Provisional Mississippi Governor William Sharkey).

Meanwhile, anti-slavery societies, sensing that ratification was imminent, pivoted to calls for back suffrage, with advocates like Francis W. Harper declaring it would be unpardonable to say to black men “You are good enough for a soldier, but not for a citizen” (New York Times, “Speeches at the 1865 meeting of the American Anti-Slavery Society”). Similarly, the signatories of “An Address from the Colored Citizens of Norfolk Virginia to the People of the United States,” demanded the rights of suffrage, not only as protection from discriminatory black codes, but also because “[n]o sane person will for a moment contend that color or birth are recognized by the Constitution of the United States as a bar to the acquisition or enjoyment of citizenship.”

As the above documents illustrate, the drama of the Fifteenth Amendment began even before the ratification of the Thirteenth Amendment. In the meantime, however, ratification of the Thirteenth remained uncertain. Northern states like Delaware, Kentucky and New Jersey rejected the amendment. Provisional state legislatures feared Section Two of the proposed amendment would empower Congress to regulate local civil rights and establish black suffrage (see, e.g., Mississippi Joint Committee Report and Rejection of Proposed Amendment).

In response, Pres. Johnson’s Secretary of State William Seward wrote letters to the southern governors insisting that their concerns were “querulous and unreasonable, since that clause [Section Two] is really restraining in its effect, instead of enlarging the powers of Congress” (“Seward to S.C. Provisional Governor Perry” New York Times). A number of southern legislatures ratified the amendment along with resolutions declaring their understanding that Seward’s construction of Section Two was correct (see, South Carolina, “Ratification and Accompanying Resolutions,” Nov. 3, 1865).

When Secretary of State Seward declared the ratification of the Thirteenth Amendment in December 1865, the question of congressional power under Section Two moved to center stage. In November and December of 1865, multiple national newspapers published editorials with competing interpretations of congressional power to enforce the Thirteenth Amendment. The issue would dominate the early debates of the Thirty-Ninth Congress and ultimately influence their decision to pass a Fourteenth Amendment.

Tomorrow: Documenting the extraordinary drama of the framing and ratification of the Fourteenth and Fifteenth Amendments.

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Montana Becomes Latest State To Protect Free Speech With the FORUM Act


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Montana Gov. Greg Gianforte fortified First Amendment protections at public universities Thursday by signing H.B. 218. This bill designates outdoor spaces at public universities as public forums, eliminates “free speech zones” that relegate open expression to contained areas, and allows a cause of action in court to students whose First Amendment rights are violated.

State Rep. Mike Hopkins (R–Missoula) originally introduced H.B. 218 in 2018, after the University of Montana’s School of Journalism refused to sponsor a speech by the conservative sociologist Mike Adams. The bill passed with broad bipartisan backing in March, with just four votes against it in the House and unanimous support in the Senate. Gianforte praised the legislation, proclaiming, “A university should be a place where the free exchange of ideas is encouraged, without voices silenced.”

H.B. 218 is based on the Forming Open and Robust University Minds (FORUM) Act, a model bill developed by the American Legislative Exchange Council (ALEC) in 2017. The FORUM Act protects students and student organizations from disciplinary action for lawful expression. “Free speech is fundamental to American democracy, and FORUM represents a set of best practices for legislators to follow,” says Andrew Handel, director of ALEC’s Education Task Force.

The model bill affirms that the “legislature views the exercise of First Amendment rights on public university campuses in this state as critical components of the education experience for students and requires that each public university in this state ensures free, robust, and uninhibited debate and deliberation.” It urges public universities to inform students of their First Amendment protections and to educate all faculty (including administrators, campus police, residential assistants, and professors) of their responsibilities in upholding a culture of open expression through school websites, handbooks, and orientation programs.

It also eliminates so-called free speech zones, a concept popularized in the 1980s and 1990s. “Having a designated free speech zone sounds like a good idea in theory,” Handel says. “But they tell students that there’s a specific, small area of campus that they can use at a very specific time. They’ve been utilized as a way to chill freedom of expression.”

The legislation also requires institutions to produce annual reports on campus free speech incidents, which will then be submitted to legislators and made available to the public. “A significant amount of taxpayer dollars is appropriated to public institutions of higher education each year,” the model bill reads. “As such, this legislature must ensure that all public institutions…recognize freedom of speech as a fundamental right for all.”

The bill protects the rights of both speakers and students who protest speakers—and unlike other model legislation, it does not recommend particular disciplinary actions for those who obstruct speech. “If students fear their expressive activities could unnecessarily land them in a campus disciplinary hearing, they may choose to sit on the sidelines,” explains ALEC’s Shelby Emmett, “The FORUM Act protects speech. It does not punish speech.”

Upon passage, states also waive their immunity under the Eleventh Amendment, which prevents individuals from filing lawsuits against states in federal court. This enables students whose First Amendment rights were violated to bring a cause of action in court. If their suit succeeds, they are guaranteed an award of at least $5,000.

Montana is the 14th state to adopt a version of the FORUM Act. Others to pass the legislation include Alabama, Arkansas, California, Georgia, Iowa, Louisiana, Maryland, Mississippi, Ohio, Oklahoma, South Carolina, Washington, and West Virginia. Eleven additional states have banned free speech zones on public colleges and universities.

The FORUM Act has predictably drawn opposition. Some critics have objected to a provision saying public universities cannot deny a group funding because of its “actual or anticipated expressive activity,” fearing that this would protect religious organizations that discriminate against gays. “The American ideals of free speech must not be used as a sword for discrimination,” the political director of the Georgia ACLU told Project Q Atlanta last year.

Others say the legislation restates the obvious. In 2019, Montana’s then-Gov. Steve Bullock vetoed a similar bill, maintaining that free speech on campuses was already adequately protected by the Constitution. Handel concurs—to a point. “The Constitution is very clear that, regardless of your underlying beliefs, you have the right to speak and be heard,” he says. But as long as institutions have failed to uphold this promise, he feels the FORUM Act is necessary to reaffirm speakers’ First Amendment rights.

As the Supreme Court reminded us in 1957’s Sweezy v. New Hampshire, “Students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

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Weed Salvaged the Lost Year


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The last time I was out at a dive bar was March 6, 2020. The SXSW music and cultural festival was canceled, wrecking Austin’s tourism economy. A sense of chaos and impending doom hung in the air. I went home somewhat aware of how the world was about to change. 

And, for the next month, all I did was smoke weed, cook Italian food, and watch The Sopranos. My social life evaporated. I spent a lot of time on my back porch, dogs and chickens frolicking in the distance, rolling joints, listening to Blondie and Destroyer, refreshing the New York Times “coronavirus live updates” tab, as if that would do much of anything.

I wasn’t the only one. At the beginning of the pandemic, the City of L.A. declared dispensaries essential businesses. Actor Seth Rogen announced to the world that he was smoking “truly ungodly” amounts of weed to endure quarantine, prompting headlines aplenty. Leafly reported that national pot sales boomed throughout 2020.

Amid an impressive amount of worldly despair, smoking weed made our lost pandemic year not good exactly, but more joyful for many people—myself included. Minimizing the role weed played in helping people endure the pandemic would be letting the drug warriors win.

Weed wasn’t just part of a smorgasbord of things I looked forward to; it was sometimes the only weekend plan I had. As any devoted stoner will tell you, it’s not just about watching Pineapple Express or The Big Lebowski or any of the other great movies in our esteemed canon; getting really stoned is a way of exploring your own mind when other forms of adventure are verboten. People need play, and when that’s been taken away from you, you must make do with the plaything of your own mind.

I was able to easily smoke with little fear of consequences because the two places I lived during the pandemic (Austin, Texas, and Brooklyn, New York) have chosen not to lock people up for possession of small amounts—a trend even conservative places like South Dakota and Mississippi have embraced.

When I first moved to Austin, this wasn’t the case; in fact, City Council unanimously voted to end arrests for possession of small amounts of weed in January 2020. If I’d chosen to live a few miles south, in Hays County, the risk of severe consequences would have been much higher: Hays still technically treats marijuana possession under two ounces as a misdemeanor that carries the threat of up to six months of jail time, though the county has announced plans to experiment with a “cite-and-divert” program for low-level offenses.

In the short time I’ve lived in New York, weed possession has gone from a tolerated but not technically permissible act to one that’s finally legal, signed into law by Gov. Andrew Cuomo on March 31. Soon I will be able to grow up to 12 cannabis plants in my house; visit dispensaries to buy and cafes to imbibe; and have the peace of knowing I live in a place where the authorities have decided I ought to have more ownership over my body and mind.

For those who don’t get high, it’s hard to understand why others do. Some people have eaten an edible before and had a Maureen Dowd-esque encounter with the gates of hell, scaring them off for good. Others have tried but nothing’s happened, and they haven’t persisted in their pursuit. Others are understandably too content with booze to experiment with the range of possible delights.

But smoke a joint and taste a lime curd tart or my famous goat milk pie; it will taste 30 times better than it did before. Turn on a Frank Ocean album. Lounge in chairs in the yard, on a crisp fall night, passing a joint around with friends. Marvel at the stars, noticing the cold air sliding across your nose and cheeks.

Some people toke because they enjoy becoming more attuned to sensory joys. Others do it for the heightened relaxation—a little block of time at the end of your day when you can truly calm down and forget about the mounting to-do lists. And, for those with social anxiety, who may have to work a little harder to enjoy even small gatherings, smoking with others can give you a deeper appreciation of other people’s weird quirks, vulnerability, humor, and fascinating backstories.

The pandemic brought personal, social, and economic pain. Some people lost family members and weren’t able to attend their funerals. Others found themselves facing job loss, credit card debt, debt, dashed dreams, and stalled careers. For families spread across the globe, border restrictions and the unpredictability of travel have taken an enormous toll.

But throughout that heaviness, my ability to roll a joint and go out onto my patio and gaze out at other people’s fire escapes and newly minted home-office spaces and planes landing at LaGuardia, increasing in volume as the months skate by, has added happiness where it felt like there was none.

For just a few minutes of the day, I would allow myself to forget about the pandemic and the lockdowns, the pace of vaccinations, the uncertainty of when I would see my family again. I’d allow myself to really enjoy that Blaze Foley song I’d heard years ago. Reclining into the comfort and dimensions of my own mind always felt like a restorative function, a good use of my time—time that seemed to stretch on and on with very little to distinguish it from what had come before.

For decades, drug warriors not only denied people this escape and enjoyment, but they patted people down, locked them up, and separated them from their families over pot offenses. President Joe Biden, who opposes federal legalization (unlike much of the rest of the country), still can’t quite wrap his head around the idea that actually, weed has enormous benefits that people ought to be free to reap.

I could write a paean to my bike or to cocktails, both of which made the pandemic less awful. But a paean to the act of getting high feels more fitting since this private, peaceful, solitary act is still one that some people still seek to condemn, as if this little bit of respite in a time of hardship is any business of theirs at all.

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Arbitrary THC Limits Could Wipe Out Much of the Cannabis Industry


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Several years ago in Colorado, during a tour of marijuana dispensaries in the ski towns near Denver, my host offered me a pipe that contained a cannabis strain he called Buddaface or Buttaface—or maybe even Butter Face, which is an actual thing. He said it had a THC content somewhere between 20 and 30 percent.

For reasons that will soon be clear, I cannot vouch for the spelling or the exact strength. But the audio record of that ride revealed what happened after I took a puff or two: What had been an interview, or at least a conversation, lapsed into long silences punctuated by random remarks about the sights we were passing. I was not really working anymore, and I did not care.

The marijuana in that pipe was quite different from the black-market stuff I had smoked during college, when I could go through a whole bowl without experiencing the same effect. From my perspective, the Colorado cannabis was better, delivering a more pleasant experience in exchange for less effort and less exposure to combustion products. In that sense, it was also healthier.

Many politicians, by contrast, view stronger marijuana as ipso facto worse. Unimpressed by the minimization of respiratory hazards, they focus on contentious claims about the psychological impact of potent pot: It is more addictive, they say, or more likely to trigger psychotic reactions. They therefore want to legally restrict the potency of cannabis products sold by state-licensed retailers, which they claim will protect public health and safety.

To some extent, the recent concern about THC levels rehashes warnings we have heard repeatedly since the 1980s. Drug warriors faced the challenge of persuading baby boomers who had smoked pot in high school or college with no ill effects that similar experimentation by their own offspring was cause for serious alarm. Among other things, they claimed there was no comparison between modern marijuana and the pot of the 1960s and ’70s because average potency had increased dramatically thanks to the ingenuity of black-market growers.

Many of those claims were exaggerated. Prohibitionists presented misleading comparisons between nonrepresentative samples and implied that everybody in the old days was essentially smoking ditchweed, which made you wonder what the appeal was. Furthermore, higher-potency cannabis preparations have been available for centuries in the form of hashish, which has a THC content as high as 60 percent.

Still, there is no denying that the average state-licensed pot shop today offers a much wider range of potencies than was ever commonly available on the black market. Medicine Man in Denver, for instance, sells flower with THC levels ranging from about 5 percent to 24 percent. It also offers concentrates such as wax and shatter, which can contain up to 90 percent THC.

Is this a problem? As long as consumers understand what they are getting, you might think, they can decide for themselves which products meet their tastes and preferences, and they can adjust their consumption accordingly: Just as drinkers tend to consume smaller volumes when they drink liquor than they do when they drink beer, cannabis consumers tend to stop when they achieve the effect they want, which means they take fewer puffs of stronger pot. But politicians who favor THC limits do not trust consumers to make those decisions.

So far, according to a recent roundup in Marijuana Business Daily, Vermont is the only state with a legal cap on THC content. Recreational stores have not opened there yet, but when they do they will not be allowed to sell flower that exceeds 30 percent THC or concentrates that exceed 60 percent.

A proposed limit in Florida, where marijuana is legal only for medical use, is far more onerous. It also would cap the THC content of concentrates at 60 percent, but it would limit flower to 10 percent. A bill to that effect was approved by a state House committee on a party-line vote last month; a similar Senate bill has not advanced yet.

“This is an existential threat, not just to the industry but to the whole idea of medical marijuana in Florida,” Ben Pollara, executive director of Florida for Care, a nonprofit that supports medical marijuana, told Marijuana Business Daily. This month Gov. Ron DeSantis said he has “not endorsed” the caps. But at the same time, he expressed concern about rising potency. “If you look at some of the stuff that’s now coming down, there’s a lot of really bad things in it,” he said. “It’s not necessarily what you would’ve had 30 years ago, when someone’s in college and they’re doing something.”

In Massachusetts, HD 2841 would likewise limit THC in flower to 10 percent, while SD 465 would charge the Cannabis Control Commission with setting “reasonable potency limits for each type of marijuana product.” A Washington bill that looks dead for now would have banned THC concentrates containing more than 30 percent THC. A Montana bill described as “probably dead” would establish a 15 percent cap for all cannabis products.

In Colorado, state Rep. Yadira Caraveo (D–Adams County) this year wrote a bill that would have imposed the same 15-percent rule but shelved it in response to the uproar it provoked. Caraveo, a pediatrician, said she wanted to stop children, who are not legally allowed to buy marijuana, from “getting their hands on products they should really not be getting their hands on.” A spokesman for the dispensary chain Terrapin Care Station estimated that Caraveo’s bill would have banned 65 percent of the marijuana products currently available in Colorado.

Legislators who support such limits think potent pot appeals to many consumers, which is why they want to ban it. But if they are right, their proposals will invite a resurgence of the black market that legalization aims to displace. “Consumer demand for these products is not going to go away,” observes Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, “and re-criminalizing them will only push this consumer base to seek out similar products in the unregulated illicit market.”

Since 1985, Armentano notes, the Food and Drug Administration (FDA) has allowed medical use of dronabinol (a.k.a. Marinol), “a pill containing 100 percent THC.” In 1999, the FDA moved dronabinol from Schedule II of the Controlled Substances Act to Schedule III “because of its remarkable safety profile.” While alcohol is commonly sold in lethal quantities, Armentano says, cannabis, “regardless of potency or quantity, cannot cause death by lethal overdose.”

The alcohol comparison is instructive since paternalists have long worried that drinkers, if left to their own devices, will be inclined to choose the beverages that give them the most bang for their buck. Hence all the concern about “strength wars” among brewers, which led to a federal rule that banned statements of alcoholic strength from beer labels (unless required by state law) until the Supreme Court overturned it on First Amendment grounds in 1995.

The idea that drinkers always favor the most potent products they can afford is demonstrably wrong. By volume, malt beverages account for four-fifths of the U.S. alcohol market; wine and distilled spirits split the rest, with the latter almost always in third place. The popularity of products like hard seltzer and light beer shows that drinkers do not necessarily prioritize potency even within the same category. The wide range of marijuana products likewise shows that cannabis consumers are not all bent on getting as stoned as possible as quickly as possible.

Some states set potency limits for beer, but only a few have comparable rules for distilled spirits, and the distinctions they draw can be puzzling. California, for example, caps the potency of “grain alcohol” at 120 proof (60 percent), which covers the stronger versions of Everclear, but sets no limit for other kinds of liquor (allowing 151-proof rum, for example). Nevada, by contrast, has a consistent 160-proof (80 percent) limit.

If states generally do not see the need to cap the potency of distilled spirits, it is hard to figure why cannabis, a far less hazardous product, requires such a safeguard. But the legal treatment of marijuana has long been anomalous, and evidently some of that irrationality lingers in the minds of politicians even when they are happy to legalize the industry and reap the resulting tax revenue.

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Coming Out of the Chemical Closet


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Carl Hart is a professor of neuroscience and psychology at Columbia University. He served in the United States Air Force, earned a Ph.D., and raised three children to adulthood. As he writes in his new book: “Each day, I meet my parental, personal, and professional responsibilities. I pay my taxes, serve as a volunteer in my community…and contribute to the global community as an informed and engaged citizen.”

So it may surprise some people to learn that not only has Hart been responsibly using heroin regularly for more than five years but he’s willing to tell people about it. He says his experiences with heroin make him a more forgiving and empathetic person, partner, and father.

Hart’s path to drug use started in Miami in the 1980s—not by taking drugs but by trying to get people off them. When the media blamed crack for unemployment and murder in the community where he grew up, Hart decided to study neurobiology to develop medications to help people with drug addictions. Now he realizes that was naive: The crisis wasn’t really about crack.

In his new book, Drug Use for Grown-Ups: Chasing Liberty in the Land of Fear (Penguin Press), Hart writes about being one of the millions of Americans who use drugs regularly and lead normal lives. “The vast majority of them are middle-class, responsible folks” who are in the chemical closet, he says. Hart hopes to reach these people and those who already know and love them. Perhaps politicians will eventually come along for the trip. But for now, Hart says, President Joe Biden “doesn’t know this issue, doesn’t care about this issue.”

In January, Reason‘s Nick Gillespie spoke with Hart via Zoom about the science of drug use and how the media flub their coverage of addiction and overdose deaths.

Reason: Give me the elevator pitch of your new book.

Hart: Well, the elevator pitch is found in the subtitle: Chasing Liberty in the Land of Fear. What I’m trying to do is ask Americans to think about their own liberty, and not in this jingoistic false patriotic sense, but in terms of what the Declaration of Independence guaranteed: life, liberty, and the pursuit of happiness for all of us, as long as we don’t disrupt anybody else’s ability to do the same. That means we get to live our life as we see fit. Taking drugs can be a part of that. It is a part of that for a lot of Americans.

I’m trying to show people that our promise, of life, liberty, and the pursuit of happiness, is inconsistent with our practice, this banning of drugs—drugs that people use in their pursuit of happiness as an expression of their liberty.

You point out in the book that we’re using drugs all the time, whether it’s caffeine, alcohol, or tobacco. Then we have what the government calls illicit drugs. Are there any drugs that you would say are bad that should be banned?

There are some drugs which we try to identify that are toxic. There was a drug called MPTP that we banned in the 1980s because we found out that it destroyed specific brain cells. That’s good to ban those kinds of drugs that no one’s seeking for their effects. Even when people accidentally made MPTP, they were seeking heroin. If heroin was available, nobody would be interested in MPTP. So sure, there are drugs that we learned are so toxic that we have to ban them. But certainly drugs like cocaine, heroin, MDMA [a.k.a. ecstasy], none of those drugs are anywhere near that category.

As you were writing the book, you were in your fifth year of using heroin. That just blows people’s minds, the idea that you could be a heroin user and something other than a homeless person. But define “drug use for grown-ups.” What is a grown-up?

I lay out in the prologue that this book is for grown-ups: people who are responsible, they handle their responsibilities, they are members of their community. This book is not for people who are immature, who are not handling their responsibilities. If they are not handling their responsibilities before drug use, they will be irresponsible after drug use. But what will happen is that people will blame drugs, when in fact drugs had nothing to do with it. You just have an irresponsible person.

You write early on that “it has taken me more than two decades to come out of the closet about my personal drug use.” A question for you: What took so long?

Frankly, what took so long is that I was a coward. I was afraid of the blowback that would occur if I said, “Oh yeah, of course I do a little cocaine, MDMA, heroin.” Having traveled around the world for this book—I went to multiple countries and five continents—one of the things that was clear is that there are millions of people using these drugs, but they’re in the closet. Not only that, the vast majority of them are middle-class, responsible folks. We have this caricatured image of the drug user as being some irresponsible degenerate, which is not the case for most drug users.

Let’s talk about heroin. You come out of the chemical closet not simply as somebody who smokes weed but as a regular heroin user. Heroin conjures up all kinds of alarms for people. They think that if you even talk about heroin too much, you will become addicted to it. Media reports always say it’s like having 10,000 orgasms and you’ll never want to do anything else. So talk about your use of heroin. Isn’t this a dangerous, dangerous substance?

When I talk about my drug use, whether it’s heroin, MDMA, or cocaine, I have to be careful. Because for so long in this country, we have been accustomed to talking about drugs like we were adolescents. We make jokes and so forth. I want to be clear that my heroin use is just like taking time out to go to a club, to see a comedian perform, or to go see a concert. I set aside that time for that activity, and I enjoy that activity in that moment. And when that moment is over, I’m done. I have to go back and do whatever other responsibilities I have. That’s how I want people to understand my heroin use.

People say, “Why do you use heroin?” Why do people do alcohol? To unwind, to relax. The same is true with my heroin use.

I use heroin in part because it’s really good at helping me to be more forgiving of other people—to look at my own behavior and see where I need to modify in order to be a better person. I have to constantly evaluate the impact of my behavior on that of other people, especially people who are subordinate. I don’t want to ever be the source of their anxiety, such that it impacts negatively on their loved ones. I think about all of these things during those times when I use heroin. And so hopefully it helps to make me a better person, because I can forget about some of the petty things that I may have had in my mind. Instead, I learn how to be more forgiving and more magnanimous.

Let’s push this a little bit. You have kids. You have a partner. Does it help with those relationships?

Absolutely. Oftentimes, my drug use is with my partner, and so we have discussions about our kids. Our youngest kid is 20, but we’re just like any other parents. We can be pains in the asses to our children. So how can we be better parents? How can we support them in a more loving way, in a way that is more effective, in a way that is more acceptable, in a way that they find more helpful? All of these things. I think about my parenting and I think about my role as a partner when I’m using.

Have you done drugs with your kids?

No, no, no, no. I haven’t done that.

You don’t want to ruin it for them—because, I mean, would anything be worse than doing drugs with your parents?

It might be, but I’m not going to assume that my kids want to do drugs with me. I recognize that I’m 54. My kids are in their 20s and 30s, and I may be unhip to them. What is considered hip today is not their father, and that’s their thing. I give them their space and they give me mine.

How do you take heroin? And where do you get it? I don’t want you to out your dealer. But how do you get it and how do you consume it?

People oftentimes make this mistake in interviews—they say, “Oh, you shoot heroin?” Because we have connected heroin use with intravenous use only. And not that there’s anything wrong with intravenous use, but I’ve never shot a drug. I understand that many people are seeking to get the immediate, rapid effect by putting a drug in their bloodstream. That’s fine. I do heroin intranasally. There are blood vessels that go to the brain, so it gets there fast enough for me.

I like to have a drug intranasal or orally, because the onset of effects are slightly delayed, but they last longer. I like to pace myself, and I like to time it out so that I am psychoactively altered for a certain amount of time, the time that I like to be altered. But that’s part of knowing pharmacology and being a fan of pharmacology.

We’re in an age now where one of the phrases you hear almost every day is, “We need to follow the science.” Part of what your book does spectacularly well is point out that even among scientists—and this includes a younger, anti-drug version of yourself—science oftentimes pushes the idea that “drugs are bad” and “a drug like heroin automatically leads to addiction.” Where does that come from? Because science is supposed to be impartial. Scientists are supposed to check their biases at the door. Why does that not happen more in discussions of the effects of drugs, much less drug policy?

The first thing we have to recognize is that science and scientists are not the same. When we say science, we’re talking about the data. Follow the data. Follow the evidence. Not the scientists. The scientists are just like Thomas Jefferson, just like me: We’re all flawed and we have our own biases.

The scientists in terms of the war on drugs, their role is that they—and I include myself here—have made out like bandits. As long as we are exaggerating the harmful effects of drugs, that means that there’s more money for grants investigating the harmful effects of drugs. And so we are incentivized to put our hands on the scale in a way that exaggerates the harmful effects associated with drugs. You give somebody an incentive to behave a certain way, guess what? They’re going to behave a certain way.

What do you do with the irresponsible drug users? We have people who drink and who drink problematically. I myself don’t drink anymore because I’m a bad drinker. How do you deal with that 10 percent to 30 percent of people who develop substance abuse issues with a given substance?

In the same way we deal with people who develop problems with alcohol. Actually, I hope we would do a better job. Our treatment in this country is horrible. I’m an expert in this area, and I don’t know where I would send a loved one in this country for drug treatment. I’d probably send them to Switzerland.

It would be nice if we just simply treated the problem. That means that we have to look beyond the drug, because we know the majority of people who use that substance are not addicted. We know that for sure. You have to look at what’s going on in that person’s environment, what’s going on with the person’s biology. Is the person in pain? Physical pain? Emotional pain? Does the person have a co-occurring psychiatric illness? Has the person recently been rendered unemployed or underemployed? What’s going on in a person’s life?

We often don’t do that. Instead, we focus on the drug, and we say, “Yeah, this is what heroin would do to you.” That’s not heroin. That’s the economy doing that to people. But we never say that. We never blame G.M. for all the carnage that we see in some of these communities. It’s much more appetizing to blame heroin.

Joe Biden is president. He is one of the architects of the drug war. When he was a senator, he pushed a lot of drug-prohibitionist legislation. He helped create the drug czar’s office and things like that. He’s also an architect of mass incarceration in the United States. Are you optimistic that he’ll be a good president when it comes to questions about drug legality?

Am I optimistic about Joe Biden being good on drug policy and so forth? Not no, but hell no. Joe Biden, he doesn’t know this issue, doesn’t care about this issue. That’s why my attention is focused on the people. This is a book written for the general population, and the general population will dictate what position the politician takes publicly. As you know, Vice President Kamala Harris advocated for legalizing cannabis nationwide. She didn’t always have that opinion, but she’s like any other smart politician. They understand the mood, and so she’s going with the flow. My goal is to educate the public so that they will bring the politicians along with them. The politicians will follow the public on this.

Compared to 50 years ago, or even 20 years ago, people in America are now using more legal drugs. Everybody’s medicine chest is filled with prescriptions that just weren’t as widespread before. Do you think our cultural comfort level with taking licit substances has a positive effect in prompting people to think, “Maybe if a legal opioid helps me get through some pain, maybe the illegal cognate is not so bad”? What role do you think the expansion of pharmaceuticals in everyday life has had on the drug war and attitudes toward drugs?

I think it has helped with the education of people. People didn’t realize that morphine and heroin are essentially the same drug. Now people understand this a little better.

Or Adderall and amphetamine, right?

Exactly. Adderall, the major ingredient is amphetamine. People understand this now a lot better. I think that’s a good thing in terms of increasing public education around these substances.

One of the ways that we vilify a drug is by linking it to an out-group. It could be blacks and cocaine, Mexicans and marijuana, or youth culture and LSD in the 1960s. You had cases like the Diane Linkletter story, where she was supposedly taking LSD and jumped out a window (which turned out not to be the case). Or Len Bias, the University of Maryland basketball player who was drafted by the Boston Celtics and then died from a cocaine overdose. Could situations like these derail a rethinking of drug prohibition?

Those situations are going to happen. There are going to be people who get in trouble with substances. The real point is that we can’t take that anecdote, that outlier, and let that influence what’s going on with the larger public movement. The whole Len Bias thing—I still don’t know what happened there. We give cocaine in our laboratory here at Columbia, thousands of doses a year, and never have seen these kinds of problems.

The problem is that we don’t really demand a comprehensive autopsy or chemical analysis about what was in the person’s system. We test for a certain number of drugs and that’s it. We don’t know about the adulterants. We don’t know what was going on there. I’ve been trying to really investigate this. I get parents who send me their children’s toxicology [reports] who have died from what was labeled a drug overdose. I look at the levels that they’re talking about as inducing or causing this overdose, and they’re nowhere near the levels that would be expected to produce an overdose—but there it is on the death certificate. I think there might be other compounds there that we don’t know about, or something else is going on.

We read drug scare stories all the time. Somebody dies or some new drug of choice is announced in the press: It’s methamphetamine, then it’s heroin, then it’s a prescription opioid, then it’s marijuana, which is stronger than your father’s marijuana, etc. What are the kinds of things that people who want to be critical readers of drug prohibitionist accounts should be looking for?

Whenever something says, “We have never seen anything like this. This is more addictive than anything we’ve seen,” get ready to be told some bullshit. If you see some story about “one hit, you’re addicted” or “a few hits, you’re addicted,” bullshit. Addiction by definition requires that the person put in work. That means multiple occasions. When people say that this person died from a drug overdose, the question you should ask is, “How many drugs were in the person’s system and what were the levels?”

You’ve lived a patriot’s life. You’re speaking now in the name of liberty for all, and that is a recurring theme with you. You also served in the military. Why did you join the service?

I joined the service originally because I didn’t get a basketball scholarship that I thought I would get. So I thought, “I’ll go to the military, and I’ll complete some college courses there, and that way I can get a degree without having to pay much money for it.” But just like many Americans, I was brought up on those patriotic, jingoistic sort-of phrases. At the core, I want to be a proponent of liberty and justice for all. I really believe in it, because it’s the only thing I really have to believe in.

The world is watching us. All of these countries look at our Declaration of Independence. I understand how fragile this democracy and any democracy is. I really understand it now. That’s why I really hope that people reevaluate what the Declaration of Independence means. It’s such a brilliant document. I wish we taught it at the college level more. It’s wasted on those young people in school. It needs to be taught on Capitol Hill. I don’t think they understand what it means.

A year from now, what do you hope Drug Use for Grown-Ups has accomplished?

I hope that it spurred a conversation in every American home, whether they agree or disagree. I hope it spurred some people to go and read about drugs who otherwise would not have. And once Americans actually read something, once they read this book, they will see, “Hold up. Something’s very wrong. This [drug prohibition regime] is very inconsistent with what our idea of being an American is.” So that’s what I hope. I hope every American household is having this conversation.

This interview has been edited for clarity and style. For a podcast version, subscribe to The Reason Interview With Nick Gillespie.

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Brickbat: Don’t Come Back


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Australia’s borders have been closed since March 2020 in an effort to stop the spread of COVID-19, and Health Minister Greg Hunt says he can’t guarantee the borders will reopen, even if the entire country gets vaccinated against the disease. “We still have to look at a series of different factors: transmission, longevity [of vaccine protection] and the global impact, and those are factors which the world is learning about,” he said during a press conference. Some 36,000 Australians remained trapped overseas because of the border shutdown.

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