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(In 1937, Congress passed the Marihuana Tax Act, which levied a "prohibitive" tax of $100 an ounce for transfer to an unregistered person, effectively making sale or possession of marijuana a federal crime. Part one of this condensation of The Marijuana Conviction describes how the Marihuana Tax Act came to be).
In the days before marijuana became a political issue in the United States, dissent was rarely voiced to the long-standing social policy vehemently opposed to its use and to the harsh legal policy of jailing its users. This consensus has been shattered, but an alternative one is not yet in view.
The pivotal issue in the current debate is which of the nation's contradictory policies toward intoxicant use will be applied to marijuana. Proponents of change never fail to raise in their behalf the relative dangers of alcohol use and inevitable repeal of its prohibition, predicting a similar fate for present marijuana policy. Opponents of change dismiss the comparison, asking whether this society should be satisfied with the consequences of repeal, and linking marijuana instead to a public consensus opposed to "narcotics" and "drug abuse."
Marijuana's Start in the US
The practices of smoking marijuana and of growing it for that purpose filtered into the United States from the south in the early years of the 20th century. Transported by Mexicans and West Indians, the plant and its intoxicant use encountered a hostile political and social climate. Gradually during the ensuing quarter-century, criminal prohibitions appeared on the statute books of nearly every state where the drug was used. Well into the 1930s, however, marijuana-smoking attracted little concerted attention from the national policy and opinion apparatus, which was deeply engaged in drug matters of much wider social impact than the limited, regional use of this new drug.
It became fashionable in to attribute the illegal status of marijuana to the Federal Bureau of Narcotics and its long-time head, Harry J. Anslinger. Such a theory became particularly popular among those who sought to alter the existing public policy since it implied that what was done by one man is not entitled to the deference which a more broadly based policy would enjoy.
However, another public policy emerged in a more subtle, less controversial fashion. Although the federal narcotics bureaucracy, with Commissioner Anslinger at the the helm, was to become marijuana's leading antagonist in the mid-30s, a restrictive public policy toward the drug was well rooted locally before that time. During the "local" phase of marijuana prohibition, lasting roughly from 1914 to 1931, 29 states, including 17 west of the Mississippi, prohibited use of the drug for non medical purposes. (Four more states did so in 1933.)
Marijuana as a Narcotic
The most important feature of this initial prohibitory phase is that marijuana was inevitably viewed as a "narcotic" drug, thereby invoking the broad consensus underlying the nation's recently enunciated anti-narcotics policy. This classification emerged primarily from the drug's alien character. Although the use of some drugs - alcohol and tobacco - was indigenous to American life, the use of "narcotics" for pleasure was not. Evidently, drugs associated with ethnic minorities and with otherwise "immoral" populations were automatically viewed as "narcotics." The scientific community shared this social bias and therefore had little interest in scientific accuracy.
From this instinctive classification of marijuana with opium, morphine, heroin, and cocaine flowed the entire set of factual supports on which narcotics prohibition rested. Marijuana was presumed to be addictive, its use inevitably tending to excess. Since its users - Mexicans, West Indians, blacks, and underworld whites - were associated in the public mind with crime, particularly of a violent nature, the association applied also to marijuana, which had a similar reputation in Mexican folklore. Since the nation was preoccupied during the 20s with lawlessness, especially among the foreign born, this association was a strong one.
To the idea of an alien cancer in the social organism was added the inevitable fear that it would spread. In New Orleans, Denver, and Chicago the specter of a doped school population was the cornerstone of the prohibitory effort. In short, marijuana prohibition was a predictable phenomenon, In states where either Mexicans or the weed had appeared, suppressing its use required no public clamor or citizen's movement; soon after being apprised of its presence, local lawmakers invoked the criminal law, and some also turned to Washington for assistance.
A Cry for Help
The first cry to Washington for help in suppressing marijuana came from El Paso. In 1914 the deputy sheriff decided that Mexicans should no longer be permitted to bring any more "loco weed" across the Rio Grande. He had little difficulty persuading local representatives of the federal government to recommend the only available administrative action: a declaration by the secretary of agriculture that importations of cannabis "were being used for purposes other than in the preparation of medicines and that, unless used in medicinal preparations, this drug is believed to be injurious to health." Upon such a declaration, the Secretary of the Treasury was authorized under the Food and Drug act of 1906 to deny importation of the drug if it was not intended for medical purposes. In addition, the commissioner of Internal Revenue, in his 1915 report, recommended the inclusion of cannabis in the Harrison Act (regulating opiates and cocaine). This proposal went virtually unnoticed.
The Harrison Narcotic Act was drafted as a tax law rather than an outright regulatory or prohibitory statute in order to accomplish indirectly what Congress believed, probably correctly,it could not do directly - that is, to regulate the possession and sale of narcotics. That the Supreme Court upheld the act as an exercise of taxing power by a slim five-to-four margin in 1919 had a significant bearing on the federal response to marijuana during the ensuing twenty years. In 1930 the narcotics area of the Prohibition Bureau's responsibilities was extracted (from a national politicians to seek federal legislation).
After the bureau initiated a marijuana strategy in late 1934, sufficient attention was aroused among organized moralist groups to incite legislative adoption of the Uniform Act. Interest in marijuana was still regional, although transient interest had now been aroused elsewhere. Viewed nationally, apathy was the norm. Most of the public which had heard at all of marijuana would have concurred in Anslinger's own characterization of the drug in April 1937: "If the hideous monster Frankenstein came face to face with the monster Marijuana, he would drop dead off right."
Apprehensions about the constitutionality of federal action and the political influence of the pharmaceutical industry deterred the FBN from seeking federal legislation in 1930 and 1931. The bureau chose to concentrate its energies instead on securing adoption of the Uniform Act, including the cannabis provision (classifying it as a "narcotic,") by the state legislatures. Even so, however, Commissioner Anslinger had not ruled out federal legislation "at the appropriate time."
That "future date" may have come sooner than even Anslinger had hoped or desired. The occasion was the request, in 1935, for a Treasury Department position on a pair of bills, S. 1615 introduced by Senator Hatch of New Mexico and H.R. 61.45 introduced by Congressman Dempsey of New Mexico, to the Treasury Department) and transferred to a separate Bureau of Narcotics.
Despite the propaganda released by the law enforcement community in the early thirties, the general public was probably largely unaware of the drug, its use, or its alleged effects. Contrary to the picture of a marijuana epidemic conveyed by the propagandists in the early thirties, use at this time probably had stabilized both geographically and demographically. It was still a regional, ethnic phenomenon. Commissioner Anslinger himself observed in late 1937 that "ten years ago we only heard about (marihuana) throughout the Southwest... (I)t has only become a national menace in the last three years."
As Anslinger's comment suggests, there seems to have been a change around the end of 1934. It is hard to determine whether use increased or whether opinion makers - including the press, the FBN, and various other groups- succeeded in increasing public awareness. Whatever its cause, this increased awareness played a significant role in passage of a Uniform Narcotic Drug Act by the states and in the decision of prohibit the shipment and transportation of cannabis in interstate or foreign commerce. This legislation had been part of a three-pronged approach which had been suggested by Anslinger in 1930.
Despite reluctance on the part of the FBN, the tide had turned. Although the Hatch and Dempsey bills did not reach the floor, the "appropriate time" for federal legislation was drawing near. Why? We can only surmise that political pressure was building for federal action because the FBN and its private army had generated a climate of fear in order to secure passage of the Uniform Act - but the bureau had done its job too well. Whether or not Anslinger concurred with (Treasury) on the desirability of federal legislation, he undoubtedly preferred to wait until they could work out a full statutory scheme which would not endanger the Harrison Act.
There were two constitutional problems with "regulating" marijuana by use of the taxing power, which Congress had used in the Harrison Act to regulate the opiates and cocaine. First, because the drugs covered by the Harrison Act were almost exclusively imported, the constitutional objection that Congress was regulating production, a local activity, was not germane; instead the main constitutional difficulty under the Harrison Act was that Congress was regulating the medical profession. Marihuana, however, was growing widely as a roadside weed or in gardens and fields all over the country; under these circumstances, effective control would require intensive regulation and/or the prohibition of production, either of which would go well beyond the Harrison Act. The taxing power might not suffice as a shield in this case.
Second, legitimate production of marijuana for medical purposes was decreasing, and the cost of controlling illegitimate growth under the Harrison scheme would far exceed revenue which might be derived. In such an event - a net loss to the government the court would not be likely to accept Congress' word that it was exercising the taxing power and probably would not close its eyes to Congress' real motive.
By the fall of 1936 Herman Oliphant (general counsel to the Treasury Department) had decided to employ the taxing power, but in a statute modeled after the National Firearms Act and wholly unrelated to the Harrison Act. Oliphant himself was in charge of preparing the bill. Anslinger directed his army to turn its campaign toward Washington.
The key departure of the marijuana tax scheme from that of the Harrison Act is the notion of the prohibitive tax. Under the Harrison Act a non-medical user could not legitimately buy or possess narcotics. To the dissenters in the Supreme Court decisions upholding the act, this clearly demonstrated that Congress' motive was to prohibit conduct rather than raise revenue. So in the National Firearms Act, designed to prohibit traffic in machine guns, Congress "permitted" anyone to buy a machine gun but required him to pay a $200 transfer tax and carry out the purchase on an order form. The Firearms Act, passed in June 1934, was the first act to hide Congress' motives behind a "prohibitive" tax. The Supreme Court unanimously upheld the anti-machine gun law on 29 March 1937. Oliphant had undoubtedly been awaiting the Court's decision, and the Treasury Department introduced its marihuana tax bill two weeks later, on 14 April 1937.
It is important to understand that these legal intricacies were the essence of the marijuana "issue." There was a recognized need for the federal government to take action forbidden to it under the prevailing constitutional doctrine. The legal reality of the marihuana issue was of significantly more interest to the bureaucracy and to the Congress than the scientific and social realities of marihuana use.
Marijuana was condemned without a trial. The decision makers did not insist on accurate information, and the policy-making process reflects only the trappings of science. The assumptions that marijuana caused addiction, insanity, and crime were not without serious attack even then; yet the federal narcotics bureaucracy made no serious effort before the decision to seek federal legislation to find out what the drug's effects really were.
Many members of the scientific community who were skeptical of the veracity of the claims against marijuana were nevertheless willing to tolerate "a certain necessary degree of sensationalism" to propel enactment of criminal legislation. But social, not scientific, thinking dictated their policy judgements.
Science of Smoking
Assistant Surgeon General Walter Treadway's report for the Cannabis Subcommittee of the League of Nations Advisory Committee in early 1937 indicates the scientific perspective:
Cannabis indica does not produce a dependence such as in opium addiction. In opium addiction there is a complete dependence and when it is withdrawn there is actual physical pain which is not the case with cannabis. Alcohol more nearly produces the same effect as cannabis in that there is an excitement or a general feeling of lifting of personality, followed by a delirious stage, and subsequent necrosis. There is no dependence or increased tolerance such as in opium addiction. As to the social or moral degradation associated with cannabis it probably belongs in the same category as alcohol. As with, alcohol, it may be taken a relatively long time without social or emotional breakdown. Marihuana is habit-forming, although not addicting, in the same sense as alcohol might be with some people, or sugar or coffee.
The sociological perspective in its most blatant form can be seen in Dr. A. E. Fossier's influential 1931 piece: "The debasing and baneful influence of hashish and opium is not restricted to individuals but has manifested itself in nations and races as well. the dominant race and most enlightened countries are alcoholic, whilst the races and nations addicted to hemp and opium, some of which once attained to heights of culture and civilization have deteriorated both mentally and physically."
The excising of marijuana use from the social organism was seen quite clearly as a means of rooting out idleness and irresponsibility among deviant minorities. The assertion of the Protestant ethic required drastic measures for marihuana, but not for alcohol, because the sociological, if not pharmacological, reasons the use of marihuana inevitably tended to excess while "civilized" use of alcohol was characteristic of the American middle class. Especially during the depression era, public health experts were apprehensive that increased idleness would spawn increased marihuana use, which in turn would perpetuate further idleness. And since "the vice still flourishes in every country in which it has once been established," early, decisive action was required.
The Treasury Department went to Capitol Hill to secure passage of the Marihuana Tax Act with an open-and-shut case. Anslinger and his colleagues stressed four points in their testimony before the House Ways and Means Committee and a subcommittee of the Senate Finance Committee: marihuana was a disastrous drug; its use was increasingly alarming and had generated public hysteria; state legislation had proved incapable of meeting the threat posed by the weed, and federal action was therefore required; and, the government might best act through separate legislation rather than through an amendment to the Harrison Act.
For five mornings in the House and one morning in the Senate, the legislators and bureaucrats convinced one another of the need for this legislation. Of primary interest was the question of federal responsibility. The New Deal Congress had been flexing its muscles for four years and resented any suggestion that any "national" problem was beyond its competence. If the Treasury "experts" contended that marihuana was a national menace, then the United States Congress was committed in principle to federal action. The threat of invalidation by the Supreme Court posed the only restraint, and even that issue was rapidly becoming one only of form.
The narcotics bureaucracy had no definitive scientific study of the effects of marihuana to present to the Congress. Even so, one might have thought the Treasury Department would have submitted a synthesis of available scientific information, or perhaps
would have summoned a number of private investigators or the government's own public health experts to testify about the drug's effects. None of these things were done. No statement was submitted by the Public Health Service. Neither of the government's own public health experts, Drs. Walter Treadway and Lawrence Kolb, testified, nor did Drs. Walter Bromberg and J.F. Siler who had recently published scientific articles on the effects of cannabis in humans.
Instead, the scientific aspects were summarized briefly by the FBN, a law enforcement agency.
The act passed Congress with little debate and even less public attention. Although the Federal Bureau of Narcotics had not sought legislation, the bureau's efforts on behalf of the Uniform Narcotic Drug Act had created a climate of fear which provoked insistent cries for a federal remedy, particularly by a few state law enforcement agents hoping to get federal support for their activities. As a result, the law was tied neither to scientific study nor to enforcement need. The Marihuana Tax Act was hastily drawn, heard, debated, and passed. It was a paradigm of the unconstitutional law.