The Ginsburg Test: Bad Logic

By Charles Krauthammer

Did F.D.R. have a drink during Prohibition? (He did.) Douglas Ginsburg, nominated for the Supreme Court, did the '60s' equivalent, and within two days of the revelation was crushed in a political avalanche. Most Americans tell pollsters they don't think past marijuana use should be a disqualification for high office, but polls don't make politics. Not many Americans would disqualify a presidential candidate for a bit of plagiarism either. That didn't help Joe Biden. It remains to be seen how much damage the marijuana issue will do to presidential candidates like Albert Gore and Bruce Babbitt. But there is no doubt what would happen to the latest Supreme Court nominee if a joint or two turned up in his background. He'd be finished.

Polls or no polls, the fact is that marijuana use can jeopardize one's < chance for high office. We are stuck with the Ginsburg test, so we might as well think it through.

-- Is marijuana use wrong? Most of the penitents who have rushed to confess to smoking dope have agreed that it is. "It was a mistake," said Babbitt. "I wish I hadn't," said Gore. "I hope that the young people of this country, including my own daughters, will learn from my mistake," said Ginsburg, withdrawing. Conversely, Columnist Tom Wicker, in a biting critique of the phony moralism and "sudden piety" of Ginsburg's attackers, felt compelled to preface his remarks about marijuana smokers by assuring his readers that "I am not now and never have been one of them." An odd credential to flash. It undermines Wicker's premise that in the conduct of public affairs (which includes public debate) one's marijuana history is an irrelevancy.

In the '70s the hysterically antimarijuana film Reefer Madness was a camp classic to be mocked by stoned viewers at the midnight show in the local art house. The Zeitgeist of that generation is now wildly reversed. Public figures who used pot at that time express regret for the transgression. Political survival demands that they not offend the new cultural norm. Marijuana use now carries a moral taint.

-- Why? In what way did Ginsburg or Gore or Claiborne Pell (a one-time, four- puff penitent) do wrong? The most obvious answer is that they willfully broke a law. True. But if what is at stake is respect for law, why the agitation about this particular law out of the thousands on the books, out of the dozens that every non-monastic citizen has broken at one time or another. If law is the issue, then the press ought to be asking public figures not "Have you ever smoked marijuana?" but "Have you ever broken the law, any law?" We could start with "Do you speed?" Or "Have you ever driven drunk?" Or "Did you ever read pornography before the relevant Supreme Court rulings that made it legal?" And, for the bolder reporter, "Have you ever engaged in any variety of carnality prohibited by state law at the time?" If lawbreaking is really the issue, then focusing on marijuana use seems to be a peculiarly narrow way to approach the question.

-- And not just narrow, but unconvincing. What if it had turned out that Ginsburg smoked dope only on camping trips to Alaska, where marijuana possession for private use is, under state law, entirely legal? Would Ginsburg still be a candidate for the Supreme Court? Not a chance.

-- Ginsburg's marijuana use was greeted with revulsion not because of its illegality, but because of its perceived intrinsic moral taint. Even without law, it is something that demands contrition. Why? Because, to summarize much that has been said on the subject, it is a decadent, nihilistic, frivolous giving over of one's consciousness and self-control to the pleasures of a waking stupor. Fine. But any moral reasoning that leads you to call immoral that kind of self-surrender must lead you to conclude the same about drinking, which can get you to a stretch of Lethe-land right next door to marijuana's.

This is not to imply, as pot propagandists do, that marijuana should be legalized. If you were inventing a new society, perhaps. You might prefer the intoxicant of choice to be marijuana, since alcohol can be more physically damaging and addicting. But such considerations are irrelevant to deciding what society ought to do about marijuana today. We are not inventing a new society. There is such a thing as history. We have millenniums of experience with alcohol. It is ineradicably part of our culture. The question today is not Will it be alcohol or marijuana? The only relevant question is Will it be alcohol and marijuana? Do we need to legitimize more intoxicants?

The answer is no. Which is why it makes sense for society to discourage marijuana use. Not because it is immoral -- it is no more so than alcohol -- but because it is destructive and society has the right to legislate self- protection.

-- Marijuana is destructive in two ways. First, you can't learn on marijuana, and marijuana attracts the young. It kills their time, robs their attention and stunts their development. Use it often enough in your teen years, and you get to adulthood having lost crucial months, years, of emotional and intellectual growth. Second, marijuana is a gateway to harder drugs, the stuff like cocaine and heroin that can destroy people in very short order.

What, then, to do about the use of a substance that is not intrinsically immoral but that society wants to discourage because of its potential for harm? We have muddled through to a fairly good compromise: make the use illegal, but be extremely circumspect about enforcing the law. Illegality is important to prevent the predictably vast increase in use that would occur if you could get a pack of Acapulco Gold out of the machine that now gives you Kools. And non-prosecution is important because you don't persecute people for behavior that you find impossible to argue is morally wrong.

-- Which makes the Ginsburg test so hard to justify. Did a few encounters with marijuana really make him morally unfit for the Supreme Court? Six out of ten Americans born in the '50s and '60s tried pot by age 25. A test that has the potential for disqualifying almost two-thirds of the population from high public service needs a compelling logic. The Ginsburg test doesn't have one. That won't save poor Ginsburg. But it might save a few others down the road.