Drug War’s Dubious Foundations
by J. H. Huebert: When
All Drugs Were Legal
factor leading to drug prohibition was the temperance movement.
It succeeded in getting alcohol banned in numerous states and, of
course, ultimately banned nationwide from 1919 until 1933. If temperance
activists could succeed in banning wine, which had played an important
role in the history of civilization itself, it is not too surprising
that they would have some success in prohibiting other substances
that were less well understood or accepted. But temperance activists
focused first and foremost on alcohol, and likely would not have
achieved federal drug prohibition without help from other powerful
One early factor
was U.S. foreign policy, driven by the interests of big business.
The Chinese had long sold tea and silk to the British East India
Company in exchange for opium. As a result, opium use became widespread
in China, which troubled its rulers. The Theodore Roosevelt Administration
decided to take advantage of this by expressing concern over the
opium problem and pressing for an international ban on the opium
trade. This would curry favor with the Chinese and encourage them
to open their markets to the United States. (We should note here
that libertarians do favor open markets, but do not approve of governments
using citizens’ rights as a bargaining chip in this way.) To have
credibility in pressing for international agreements restraining
the opium trade, the United States took quick action to ban imports
of smoking (as opposed to medicinal) opium.
xenophobia were another major factor leading to drug prohibition.
Chinese immigrants were partly responsible for spreading opium use
in America, so prohibitionists found a receptive audience among
whites who feared the prospect of their daughters being lured into
the Chinaman’s opium den. Early anti-opium laws in western states
explicitly discriminated against Chinese immigrants.
about cocaine-crazed blacks fueled support for cocaine prohibition.
Dr. Hamilton Wright, the leading anti-drug crusader during the Theodore
Roosevelt Administration, told Congress that cocaine "is often
the direct incentive to the crime of rape by the Negroes,"
despite a lack of evidence for this or even for the proposition
that blacks used cocaine more than whites. Still, Southern Senators
especially bought into the widespread myth that black men on cocaine
essentially became crazed zombies who were – yes, some people believed
this – invulnerable to .32 caliber bullets.
and industry groups, most notably the American Pharmacological Association,
also helped enact drug prohibition. Big pharmaceutical companies
did not like competition from patent medications, and pharmacists
did not like it that people other than themselves could sell drugs.
Regulation of drug distribution, even if it imposed costs on pharmaceutical
companies and pharmacists to some extent, could be worthwhile to
them if they could bear the costs while their smaller, less diversified
competitors could not.
The first major
federal action was the Pure Food and Drug Act of 1906, which required
patent-medicine producers to list their products’ ingredients on
their labels. Although this may seem relatively inoffensive from
a libertarian perspective – after all, libertarians oppose fraud
– this gave professional and industry groups such as the American
Medical Association and American Pharmacological Association some
protection from competition, and it encouraged them to take further
further-reaching legislation in 1914 with the Harrison Narcotics
Tax Act. The Harrison Act did not prohibit any drugs outright, in
part because Congress was not certain that it had the authority
to do so under the Commerce Clause. (Today’s Congressmen would no
doubt find this uncertainty quaint.) Instead, the Act banned distribution
of narcotics and cocaine for non-medicinal purposes and limited
who could sell the drugs for medicinal purposes. It required all
involved in the distribution of narcotics to register with the federal
government and to pay a tax of one dollar per year, and it required
distributors to keep records. The Act also exempted sellers of certain
medicines that contained the drugs in very small amounts.
and pharmaceutical companies accepted the Harrison Act because they
could better afford its recordkeeping costs than their competitors.
The next step came when Congress amended the Act in 1919 to allow
the Bureau of Internal Revenue to prohibit "addict maintenance"
(that is, giving drugs in regulated doses to addicts) by physicians.
The result was that thousands of physicians were imprisoned for
prescribing narcotics that had always been legal. By this time,
the American public was even more receptive to prohibitionist efforts.
World War I propaganda led people to view sobriety as a patriotic
duty and drugs as a plot by the Germans. A not-so-sober 1918 New
York Times editorial claimed that the Germans were deliberately
addicting the rest of the world to drugs and alcohol to create a
"world of ‘cokeys’ and ‘hop fiends,’ which would have been
absolutely helpless when a German embargo shut off the supply of
its pet poison."
the Killer Weed
narcotics prohibition came about for dubious reasons – pleasing
China, the pharmaceutical industry’s desire to eliminate competition,
bigotry, World War I, and fanatical temperance activists – but the
decision to prohibit marijuana was even less justifiable.
In 1930, the
government established the Federal Bureau of Narcotics, led by Commissioner
Harry Anslinger. In his position, Anslinger essentially decided
who could legally manufacture narcotics for medical purposes in
the United States, and he granted that privilege to just a handful
of companies. In exchange for favorable treatment, these companies
would otherwise do Anslinger’s bidding; specifically, they would
provide Congressional testimony as needed, including, when Anslinger
wanted it, testimony as to the great potential harm of marijuana.
It is odd that
anyone would have pursued marijuana prohibition in the 1930s, if
only because so few people used it, but Anslinger targeted it anyway.
No one is sure why, but one suggested reason is because, like any
bureaucracy, the Federal Bureau of Narcotics had to justify its
budget, particularly during the Great Depression. Plus, some suggest,
Anslinger and the bureau wanted publicity.
1930s, Anslinger and the Federal Bureau of Narcotics launched a
propaganda campaign against pot. In speeches, Anslinger declared:
"Take all the good in Dr. Jekyll and the worst in Mr. Hyde
– the result is opium. Marihuana may be considered more harmful.
. . . It is Mr. Hyde alone." The bureau was eager to provide
"information" on the putative dangers of marijuana to
journalists; marijuana horror stories began to appear in newspapers
and periodicals, virtually all of them acknowledging Anslinger’s
bureau or its publications for their "facts." A 1934 St.
Louis Post-Dispatch article described the effects of marijuana:
attack of marijuana upon the body is rapid and devastating. In
the initial stages, the skin turns a peculiar yellow color, the
lips become discolored, dried and cracked. Soon the mouth is affected,
the gums are inflamed and softened. Then the teeth are loosened
and eventually, if the habit is persisted in, they fall out. .
. . [People in traveling jazz bands] take a few puffs off a marijuana
cigarette if they are tired. . . . It gives them a lift and they
can go on playing even though they may be virtually paralyzed
from the waist down, which is one of the effects marijuana can
published an article in American Magazine called "Marijuana:
Assassin of Youth," in which he told of a young "marijuana
addict" who, while "pitifully crazed," slaughtered
his family of five with an ax.
factor leading to prohibition was, once again, bigotry, this time
mostly against Mexicans. Mexicans brought marijuana smoking to the
United States when about one million of them migrated here after
their country’s 1910 revolution. Some people resented Mexicans anyway,
in part for their willingness to work for low wages during the Depression,
and marijuana provided another excuse to attack them. Anslinger
also testified before Congress that marijuana "causes white
women to seek sexual relations with Negroes."
lined up in support of marijuana prohibition. Big pharmaceutical
companies did so because they were beholden to Anslinger and because
they did not want competition from marijuana, which they could not
profit from themselves because it was a common plant. Chemical company
DuPont supported the legislation because it would treat hemp (a
form of cannabis that cannot be used to get high, but which serves
numerous industrial purposes very well) just like other marijuana,
which would eliminate competition for DuPont’s synthetic products.
the propaganda and prejudice, there was not much public demand for
marijuana prohibition when Congress nonetheless passed the Marihuana
Tax Act of 1937. There was not much evidence or debate, either.
As legal scholars Charles H. Whitebread II and Richard J. Bonnie
put it, the hearings "are near comic examples of dereliction
of legislative responsibility."
the primary witness at the Congressional hearings, and he presented
stories of the boy with the ax, another man who decapitated his
best friend while under the influence, a 15-year-old who "went
insane," and other anecdotes derived from newspaper clippings.
Medical Association provided a witness, a Dr. William C. Woodward,
who pointed out that Anslinger had little more than hearsay evidence
from newspapers to back up his claims. Although marijuana use in
prisons and by children were supposed justifications for the law,
Woodward pointed out that there was no evidence as to how many prisoners
actually used marijuana, or how many children used it. For refusing
to endorse the legislation, Congressmen accused Woodward of "obstruction."
When the bill
made it to the House floor, it received less than two minutes of
debate. A Republican Congressman asked whether the American Medical
Association supported the bill, and a committee member, Fred M.
Vinson – who had been present and asked questions at length during
the committee hearings, and who would later become Chief Justice
of the U.S. Supreme Court – responded with a bald-faced lie: "Their
Doctor Wentworth (sic) came down here. They support this bill 100
percent." It was late at night, so they passed the bill without
further substantive discussion, and soon the president signed it.
an excerpt from my book, Libertarianism
February 3, 2011
H. Huebert [send him mail]
is the author of Libertarianism
Today (Praeger, 2010). He is also an attorney, Adjunct Professor
of Law at Ohio Northern University College of Law, and an Adjunct
Scholar of the Mises Institute.
Visit his website.
© 2011 Jacob H. Huebert. Reproduced with permission of ABC-CLIO,
LLC, Santa Barbara, CA.
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