The Drug War’s Dubious Foundations

by Jacob H. Huebert

Recently by J. H. Huebert: When All Drugs Were Legal

Narcotics and Cocaine

An obvious 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 interests.

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.

Bigotry and 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.

Absurd fears 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.

Professional 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 political action.

Congress passed 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.

Pharmacists 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."

Marijuana, the Killer Weed

Cocaine and 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.

During the 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:

[T]he physical 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 have.

Anslinger himself 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.

Another likely 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."

Powerful interests 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.

Still, despite 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."

Anslinger was 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.

The American 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.

This is an excerpt from my book, Libertarianism Today.

February 3, 2011

Jacob 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.

Copyright © 2011 Jacob H. Huebert. Reproduced with permission of ABC-CLIO, LLC, Santa Barbara, CA.

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