EDITOR’S NOTE: Today’s post is the first in a two-part series by contributing editor Adam Rathge. The series is drawn from Rathge’s dissertation, which examines the century-long road to federal marijuana prohibition in the United States by analyzing the development and transformation of medical discourse, regulatory processes, and social concerns surrounding cannabis between 1840 and 1940.
Robocalls. Partisan attack ads. Pundit punditry. It’s midterm election time in America! As this post goes live, Nate Silver’s projections over at FiveThirtyEight suggest the GOP will take back the Senate. But that’s not the only measure of intrigue to be settled on November 4th. In Alaska and Oregon, voters will decide whether to implement legislation modeled on the laws passed by Colorado and Washington in 2012, making marijuana sales legal for adults in those states. Voters in Washington, D.C. will also decide on marijuana legalization (with a ballot measure that will make it legal to possess or grow small amounts, but not buy or sell it). Meanwhile, Florida voters will consider a constitutional amendment to allow medical marijuana. And if we take a quick look ahead to 2016, we find a half-dozen additional states considering marijuana legalization initiatives.
One of the most fascinating aspects of this recent turn toward medicalization and legalization are the contradictions it inspires. For example, if “soft legalization” passes in Washington, D.C. next month, and Congress allows it to stand, marijuana possession would be legal throughout the city, but acquiring it would still require a series of acts that remain illegal. In fact, according to federal law, none of these ballot initiatives are legal. Marijuana remains a Schedule I drug under the Controlled Substance Act, meaning it is “considered among the most dangerous drugs” with “potentially severe psychological or physical dependence” and has “no currently accepted medical use and a high potential for abuse.” Despite this, twenty three states and Washington, D.C. have legalized medical marijuana since 1996. Moreover, following the implementation of recreational legalization in Colorado this year, the state now allows the sale of marijuana to any adult over the age of twenty one while doctors continue to write marijuana prescriptions for patients. Cannabis is both medicine and intoxicant. All this has led the Justice Department to recently clarify its policies as the nation lurches forward toward what many consider a tipping point for widespread marijuana legalization. As such, now seems like as good a time as any to take a look back at how we got here in the first place. And I mean way back. A hundred and fifty years back.
This is critical because most histories of marijuana prohibition start in the early twentieth century and generally focus on the actions of Harry J. Anslinger, Commissioner of the Federal Bureau of Narcotics. Existing narratives have suggested various causes for passage of the Federal Marihuana Tax Act in 1937, including: a grand conspiracy by the DuPont Company and newspaper magnate William Randolph Hearst, the “Reefer Madness” campaign of the 1930s, and blatant racism toward Mexican and African American marijuana smokers. Aspects of these issues surely played a role, but relying on them to explain marijuana prohibition or argue why it should now be overturned ignores a far longer and more complex history of cannabis regulation in the United States.
Introduced in North America as the common hemp plant during the seventeenth century, commentary on the medicinal and intoxicating properties of cannabis did not formally emerge in the United States until the mid-nineteenth century. Spurred by a series of European medical experiments, especially those of Dr. William Brooke O’Shaughnessy in 1839, American doctors began experimenting with cannabis and medicinal preparations were readily available in American pharmacies by the 1850s. What emerged from contemporary medical and literary sources – both including a great deal of personal experimentation – was a distinctive blend of scientific inquiry and artistic expression that fed a wide-ranging understanding of cannabis and its effects and lasted well into the twentieth century. On the eve of the Civil War, classifications of cannabis included: hypnotic, anodyne, narcotic, stimulant, poison, and intoxicant. What was almost always present, however, was the ready classification of cannabis as a potentially dangerous substance, even among those who found it useful in a variety of medicinal treatments. In short, cannabis, like most all drugs, could be both helpful and harmful.
This understanding landed cannabis alongside opium and other drugs as the targets of broad, state-level efforts to regulate the sale of medicines and poisons throughout the second half of the nineteenth century. For example, an 1860 New York law stipulated that “no person shall sell or give any poison or poisonous substance, without recording in a book to be kept for that purpose, the name of the person receiving said poison, his or her residence (together with the name and residence of some person as witness to such sale), excepting upon the written order or prescription of some regularly authorized practicing physician, whose name and residence shall be attached to such order.” The law also required the labeling of vials, boxes, and parcels with the “name and residence of such person” as well as “poison”– all in red ink– with the precise name of the poison written in “plain and legible characters.” In a move quite common for the period, Wisconsin passed a similar poison law in 1862, evidently drawing its list of poisons directly from New York. Various restrictive regulations throughout the country also created penalties for adulterating drugs, improper packaging or labeling, sales or transactions with minors, and improper prescription refills. Laws of this nature ultimately formed a foundation for growing restrictions surrounding the sale and distribution of drugs in the United States.
Of particular interest here is the inclusion of cannabis alongside arsenic, chloroform, opium, and many others, in these laws and other enumerated lists of poisons. We cannot, however, rely solely on such lists to fully capture the extent of dangerous perceptions surrounding certain drugs and attempts to remedy these problems with state regulation. Though most laws that identified specific poisons did include cannabis, there was actually significant debate on whether or not to include poison lists in legislation at all. New York, for example, removed its original list just two years after the law initially passed. For their part, the American Pharmaceutical Association declared the enumeration of poisons by law “objectionable.” They argued these lists would be incomplete at best, and could burden law enforcement while limiting the effectiveness of the legislation. Nevertheless, the APhA developed a model state law which it circulated to politicians and medical doctors across the country. While the legislation had mixed success, within a decade nine states and the District of Columbia had adopted similar statutes.
As a range of pharmaceutical products became increasingly available to the public in the late nineteenth century, the role of medical doctors and pharmacists as guardians of these potentially dangerous substances occupied a central place in the debate. So too did concerns about addiction and non-medical uses of these substances. Propelled by a growing fear of habitual drug use, states continued to search for legal remedies to alleviate these concerns. Again, cannabis was regularly featured in this commentary and subsequent legislation. For example, in response to a series of “overdoses” caused by hasheesh candies, an 1866 editorial from the Boston Medical and Surgical Journal lamented, “How largely Cannabis indica is used amongst us for purposes of pleasurable intoxication cannot of course be definitely known, but we believe much more generally than is commonly supposed.” In 1872, Kentucky passed a statute to aid in the management of persons under the influence of habitual or excessive use of poisonous drugs, including “opium, arsenic, hasheesh, or any other drug.” Six years later, as legislators in New York debated the state’s lunacy laws, John Ordronaux, Professor of Medical Jurisprudence at Columbia College Law School, noted that under the current statute only terms such as “strong or spirituous liquors or wines” were used, which served to “inferentially exclude the idea of any substances which may be eaten or smoked like opium or hasheesh.” Indeed, throughout the late nineteenth century, cannabis was continually featured in legislation aimed at restricting the sale and use of drugs in states across the country, from New Jersey to North Carolina and from Washington, D.C. to Iowa. In 1896, Iowa legislators amended the state’s existing nuisance law to include “houses resorted to for the use of opium or hasheesh.”
Though few of these laws would fit today’s understanding of drug prohibition, they were legal restrictions on drugs nonetheless. They represented attempts by individual states to regulate access to substances deemed potentially dangerous by medical doctors and pharmacists at a time when few people, if any, believed the federal government could legally do so. In the case of cannabis, its inclusion in these laws did not require a grand conspiracy by corporations and newspapers, a sensational “reefer madness” campaign, or xenophobia against groups of Mexican or African American users. Indeed, though medical doctors used and tested cannabis products regularly throughout the second half of the nineteenth century, most deemed it potentially dangerous, even as they discovered it did not carry a lethal toxicity. In some ways, these laws reflect aspects of the medical marijuana legislation enacted in the past twenty years. That historical precedent is very interesting given our current state of affairs and the ongoing debate about broad recreational legalization.
In part two, I’ll explore how these nineteenth century regulations evolved in the early twentieth century as the federal government exercised increasing authority over drug control with the Food and Drug Act, the Harrison Narcotics Act, and the Marihuana Tax Act.