The New York Times, The Opinion Pages
My Sunday column on “pot and jackpots”
— that is, the march toward marijuana legalization and the spread of
casino gambling — tried to widen the usual culture-war frame to
encompass not just bedroom-and-altar hot buttons, but the way the
broader logic of “consenting adults” is working itself out in other
areas of American life. One point I didn’t get to, though, is the extent
to which both of these issues, pot and gambling, illustrate what one
might call the rationalizing impulse in modern American politics, which
seeks perfect fairness and consistency at the expense of compromises
rooted in the accidents of history, and which makes it hard for
conservatives to defend older, inherently-arbitrary arrangements even
when they make practical sense.
Consider casinos, for instance. Was there any deep principle behind the old, pre-1990s dispensation, in which New Jersey and Nevada essentially served as the country’s designated outlets for the deep-seated urge to risk your money at lousy odds while a sleepless waitress refills your drinks? If such a principle existed, it wasn’t exactly obvious, and had I grown up in the general vicinity of Atlantic City or Reno I probably would have resented the set of accidents that turned my native city into the place where everybody else came to party, act out, occasionally ruin their own lives or their families, and despoil a community where they didn’t have to live. If casino gambling is socially destructive enough to be basically illegal in 48 states, I might would have thought, then why not in all 50? Or alternatively, if it’s okay for Nevadans to build gambling palaces, then why shouldn’t it be okay for Minnesotans or Vermonters or Oklahomans as well? If there’s a right to gamble, why shouldn’t it apply everywhere — and if casinos come with social costs, why not do the fair thing and spread those costs around?
So too, in a slightly different way, with the longstanding prohibition on marijuana. As advocates for legalizing pot have long protested, there’s no obviously compelling reason besides the quirks of history and culture that clearly justifies making alcohol a normal part of respectable socializing, while consigning weed to the extralegal fringe. If I prefer a toke to a drink, why should the law draw some spurious, culturally contingent distinction that makes my preference criminal, and consigns dealers to prison while bartenders walk free? If we restrict substances that can damage their users, why not do the fair thing and make the restrictions uniform?
The answer is … well, the answer in both cases is essentially contingent, historicist, tradition-minded. We have these inherited limits — geographic, legal — on certain vices, certain self-destructive activities. They are inherently arbitrary, yes — but they also may do useful work regulating how easily and casually and frequently people indulge in those vices, and they may strike a balance between puritanism and permissiveness that’s socially useful even if isn’t perfectly consistent or obviously fair. Whereas making consistency our north star requires either accepting an unsustainable level of repression (adding a reboot of Prohibition to the War on Drugs, say, or telling Americans that Vegas is closed and they have to fly to the Caribbean for those kind of thrills) or a damaging level of permissiveness … with the latter, quite possibly, being what we’re headed for today.
We’re headed there because these kind of tradition-based arguments don’t satisfy the modern mind, but also because in a society that doesn’t put much stock in arguments from tradition it’s hard to go just part of the way on a given social question and then stop. With casino gambling, for instance, I don’t think the “Indian tribe carveout” that brought casinos to a lot of states in the Clinton era was necessarily a good idea, but I could imagine someone arguing that it offered a better balance between restriction and release than the Atlantic City/Vegas model. But whether it was better or not, it was seemingly foredoomed to be temporary: Once the old taboos were broken and the process got started, there was no obvious stopping place, no obvious reason why states that had already conceded on the principle of welcoming casinos wouldn’t want to claim a large piece of the action for themselves. And that’s how we’ve ended up, not with the modest expansion of casino gambling that the reservation model seemed to promise, but with a race to the bottom by income-hungry states.
With marijuana, as I said in the column, I’m a lot more sympathetic to the steps toward decriminalization that have been taken to date, because I think the strict-prohibition model has been a pretty clear policy failure, with too many attendant injustices, in a way that the “only in Vegas” model of casino policy was not. But I also worry that we’re basically in the “only on Indian reservations” stage of the progression with pot, and that in a generation or so we’ll have passed from the plausible way station of decriminalization to the logical endpoint of full commercial legalization, because nobody will be able to adequately explain in principle why using a drug should be legal but turning a profit off it (with the attendant bounty of tax dollars for the state) should not. If I were confident that this process would be managed by, say, a wise policy mind like Mark Kleiman, who favors allowing small-scale production and distribution while maintaining a ban on commercial production, I would feel better about where we’re headed. But the Kleiman stopping point, however practically desirable, has some of the same arbitrariness problems as the old regime, and the logic of full legalization just seems like it may prove too powerful for a permissively-inclined, fairness-oriented, consistency-seeking society to resist.
Consider casinos, for instance. Was there any deep principle behind the old, pre-1990s dispensation, in which New Jersey and Nevada essentially served as the country’s designated outlets for the deep-seated urge to risk your money at lousy odds while a sleepless waitress refills your drinks? If such a principle existed, it wasn’t exactly obvious, and had I grown up in the general vicinity of Atlantic City or Reno I probably would have resented the set of accidents that turned my native city into the place where everybody else came to party, act out, occasionally ruin their own lives or their families, and despoil a community where they didn’t have to live. If casino gambling is socially destructive enough to be basically illegal in 48 states, I might would have thought, then why not in all 50? Or alternatively, if it’s okay for Nevadans to build gambling palaces, then why shouldn’t it be okay for Minnesotans or Vermonters or Oklahomans as well? If there’s a right to gamble, why shouldn’t it apply everywhere — and if casinos come with social costs, why not do the fair thing and spread those costs around?
So too, in a slightly different way, with the longstanding prohibition on marijuana. As advocates for legalizing pot have long protested, there’s no obviously compelling reason besides the quirks of history and culture that clearly justifies making alcohol a normal part of respectable socializing, while consigning weed to the extralegal fringe. If I prefer a toke to a drink, why should the law draw some spurious, culturally contingent distinction that makes my preference criminal, and consigns dealers to prison while bartenders walk free? If we restrict substances that can damage their users, why not do the fair thing and make the restrictions uniform?
The answer is … well, the answer in both cases is essentially contingent, historicist, tradition-minded. We have these inherited limits — geographic, legal — on certain vices, certain self-destructive activities. They are inherently arbitrary, yes — but they also may do useful work regulating how easily and casually and frequently people indulge in those vices, and they may strike a balance between puritanism and permissiveness that’s socially useful even if isn’t perfectly consistent or obviously fair. Whereas making consistency our north star requires either accepting an unsustainable level of repression (adding a reboot of Prohibition to the War on Drugs, say, or telling Americans that Vegas is closed and they have to fly to the Caribbean for those kind of thrills) or a damaging level of permissiveness … with the latter, quite possibly, being what we’re headed for today.
We’re headed there because these kind of tradition-based arguments don’t satisfy the modern mind, but also because in a society that doesn’t put much stock in arguments from tradition it’s hard to go just part of the way on a given social question and then stop. With casino gambling, for instance, I don’t think the “Indian tribe carveout” that brought casinos to a lot of states in the Clinton era was necessarily a good idea, but I could imagine someone arguing that it offered a better balance between restriction and release than the Atlantic City/Vegas model. But whether it was better or not, it was seemingly foredoomed to be temporary: Once the old taboos were broken and the process got started, there was no obvious stopping place, no obvious reason why states that had already conceded on the principle of welcoming casinos wouldn’t want to claim a large piece of the action for themselves. And that’s how we’ve ended up, not with the modest expansion of casino gambling that the reservation model seemed to promise, but with a race to the bottom by income-hungry states.
With marijuana, as I said in the column, I’m a lot more sympathetic to the steps toward decriminalization that have been taken to date, because I think the strict-prohibition model has been a pretty clear policy failure, with too many attendant injustices, in a way that the “only in Vegas” model of casino policy was not. But I also worry that we’re basically in the “only on Indian reservations” stage of the progression with pot, and that in a generation or so we’ll have passed from the plausible way station of decriminalization to the logical endpoint of full commercial legalization, because nobody will be able to adequately explain in principle why using a drug should be legal but turning a profit off it (with the attendant bounty of tax dollars for the state) should not. If I were confident that this process would be managed by, say, a wise policy mind like Mark Kleiman, who favors allowing small-scale production and distribution while maintaining a ban on commercial production, I would feel better about where we’re headed. But the Kleiman stopping point, however practically desirable, has some of the same arbitrariness problems as the old regime, and the logic of full legalization just seems like it may prove too powerful for a permissively-inclined, fairness-oriented, consistency-seeking society to resist.
