Artwork by Ashlee Welz-Smith

Pondering Pot: Marijuana's History and the Future of the War on Drugs

by Adam Rathge

Ask most people, historians included, when the war on drugs began and they will likely point to President Richard Nixon in 1971. A small minority versed in the history of drugs in the United States may go back further, citing the Harrison Narcotics Act of 1914. Few, however, would readily place those origins in the nineteenth century. Yet, if we are searching for the birth of a regulatory framework built to halt the public's unrestricted access to drugs, the late-nineteenth century is exactly where we will find it. Indeed, the period's widespread state-level measures aimed at providing consumer protections from medicines and poisons laid a foundation for the bifurcation of the drug market and the origins of the war on drugs. In light of recent debates on the failure of that war, the perils of its mass incarceration, and especially the recent shift toward marijuana legalization, these nineteenth-century origins offer an excellent point of departure for exploring the past, present, and future of drug control in the United States.

At present the war on drugs paradigm and its requisite enforcement agencies appear under greater attack than perhaps ever before. This is especially true for marijuana prohibition. Colorado, Washington, Oregon, and Alaska have passed state-level legalization measures and begun devising and developing a legal market for marijuana. Voters in Washington, D.C., have moved to do the same despite pushback from Congress. More recently, senators Cory Booker (D-N.J.), Kirsten Gillibrand (D-N.Y.), and Rand Paul (R-Ky.) announced their co-sponsorship of a Senate bill that would ostensibly pave the way for legalized medical marijuana in the United States. On June 3 of this year, the Republican-controlled House also moved to prevent the federal government from blocking state laws permitting the use of medical marijuana. In 2016 some six additional states appear primed to consider marijuana legalization initiatives.

All of this has taken place while marijuana remains expressly prohibited under federal law. As a Schedule I drug under the Controlled Substances Act, marijuana is "considered among the most dangerous drugs" with "potentially severe psychological or physical dependence" and "no currently accepted medical use and a high potential for abuse." This classification is, of course, part of the debate. Many advocates for marijuana argue that at the very least it is time to recognize marijuana's potential medical benefits by removing federal red tape on research. Still others contend that recreational marijuana use is safer than legal alternatives such as alcohol and tobacco, and therefore should be similarly regulated.

Though there has been plenty of science marshalled in support of these arguments, it is also not hard to find marijuana supporters who draw–at least anecdotally—on a series of historical narratives they believe bolster their pro-pot positions. Most common are suggestions that federal marijuana prohibition in 1937 was based not on rational scientific policy but on blatant xenophobia mixed with myth and misinformation. These narratives suggest that the longtime commissioner of the Federal Bureau of Narcotics (FBN), Harry J. Anslinger, pushed a campaign of "reefer madness" that linked marijuana to maligned minority groups and falsely accused the drug of triggering heinous crimes. Further compounding these beliefs is the current perception that marijuana was something of a nineteenthcentury miracle drug—sold by the nation's most prominent pharmaceutical companies and frequently prescribed by physicians for a range of ailments.

As such, it will likely come as a shock to most that there was essentially no significant period of unrestricted marijuana use in the United States. For the uninitiated, the dried leaves, flowers, stems, and seeds commonly referred to as marijuana are drawn from a genus of plants known as Cannabis. The term marijuana, however, did not appear with regularity until the first two decades of the twentieth century. Cannabis was originally introduced in North America as the common hemp plant during the seventeenth century, but commentary on the medicinal and intoxicating properties of cannabis did not fully emerge in the United States until the midnineteenth century. Spurred by medical experiments conducted in India by Dr. William Brooke O'Shaughnessy during the late 1830s, American doctors also began tests of medicinal cannabis. Barely a decade later pharmaceutical preparations of cannabis were readily available in drug stores and pharmacies. What emerged from this brief period of research—which included a good deal of personal experimentation by both medical and literary figures—was a blend of scientific inquiry and artistic expression that fed a wide-ranging understanding of cannabis and its effects. 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. In short, like most all drugs, cannabis could be both helpful and harmful. This understanding quickly landed cannabis alongside arsenic, chloroform, opium, and many other drugs as the target of broad, state-level efforts to regulate the practice of pharmacy and the sale of medicines and poisons.

Beginning in earnest around 1860, these measures sought to provide consumer protection in an increasingly complex and potentially dangerous marketplace for drugs. Fears of adulteration, mislabeling, poisoning, and related concerns brought about action on the part of social reformers, physicians, and pharmacists aiming to carve professional space for themselves and provide expert knowledge to consumers. The role of medical doctors and pharmacists as guardians of potentially dangerous substances occupied a central place in nineteenth-century measures to regulate medicine and pharmacy. So too did growing concerns about addiction and nonmedical uses of substances. As a range of pharmaceutical products became increasingly available to the public in the late nineteenth century, these restrictions continually changed and evolved.

Owing to its quickly established status as a potentially dangerous drug, cannabis was regularly featured in both commentary and legislation. For example, in response to a series of "overdoses" caused by "haschisch candies," an 1866 editorial in the Boston Medical and Surgical Journal asked lamentingly, "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." (1) 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 drug." (2) Five years later, as legislators in New York debated reforms to the state's existing 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." (3) In 1886 New Jersey lawmakers passed "An Act to Regulate the Practice of Pharmacy," outlining acceptable practices and enumerating a recognized set of dangerous poisons under the designation of Schedule A. The list included arsenic, mercury, chloroform, chloral hydrate, belladonna, opium, and Indian hemp. In 1896, legislators in Iowa amended the state's existing nuisance law to include "houses resorted to for the use of opium or hasheesh." (4) Quite simply, during the late nineteenth century cannabis was regularly featured in legislation aimedat restricting the accessibility and uses of potentially dangerous drugs.

In the early twentieth century laws of this nature helped form the foundation for a bifurcation of the drug market into licit and illicit uses, leading to a more stringent system based on outright prohibitions. Most prominent among these was the 1914 Harrison Narcotics Act. Driven by increasing pressure from state-level reformers, international treaty obligations, and Progressive Era zeal, the Harrison Act represented a significant evolution in drug control by shifting power and oversight to the federal government. Rather than directly regulating
the practice of medicine, which few believed possible, Harrison utilized the federal power of taxation to levy tariffs and regulate interstate commerce. Its tenuous status as a revenue measure that restricted consumer behavior barely survived a series of legal challenges. Even so, like the 1906 Pure Food and Drug Act before it, the Harrison Act largely relied on the foundation built by nineteenth-century consumer-protection measures and prescription laws. Harrison did not, however, include cannabis—despite its presence in both the Mann Bill and the Foster Bill, Harrison's failed predecessors. Its exclusion was not without debate or consideration. During congressional debates on Harrison, testimony from recognized experts suggested cannabis should be included. Nevertheless, declining medicinal use combined with an effort to convince retail trades, wholesalers, and pharmaceutical manufacturers to submit to industry regulations meant that, unlike the opiates and cocaine, cannabis did not survive the legislative gauntlet. (5)

The absence of cannabis in the nation's first comprehensive narcotic law had a profound effect on its regulation—ensuring it remained subject to local concerns and local controls as it had since the nineteenth century. States and municipalities throughout the country continued to restrict cannabis, and between 1911 and 1918 at least ten states passed measures that included it. So too did a number of municipalities, including Albuquerque, New Mexico; El Paso, Texas; New York City; Phoenix, Arizona; and Portland, Oregon. In much of the existing historiography this crucial period coincided with the arrival of Mexican migrants who smoked marijuana in the 1910s and provided the impetus for reactionary legislation throughout the Southwest. Yet, cannabis restrictions also occurred at the same time east of the Mississippi, especially in New England. Such restrictions were not responses to the arrival of Mexican marijuana; they were made law because cannabis maintained its nineteenth-century reputation as a potentially dangerous drug. Absent both Mexican immigrants and marijuana terminology, restrictions passed by many state legislatures merely continued the work of their nineteenth-century predecessors, pushing for broadened regulation on a range of substances including opium, cocaine, heroin, and cannabis. Moreover, even in areas of the Southwest where rumblings about Mexican marijuana emerged around the same time cannabis restrictions were codified, the restrictions drew heavily on nineteenth-century terminology and regulations. For example, both California and Utah restricted "extracts, tinctures, or other narcotic preparations of hemp, or locoweed, their preparations or compounds." Moreover, as the historian Isaac Campos has recently shown, marijuana was anything but a "casual adjunct" to Mexican life. Instead, most Mexicans feared marijuana, believing it was a dangerous drug that inevitably led to madness and violence. (6) These beliefs led Mexico to nationwide marijuana prohibition nearly two decades prior to the United States.

Mexican ideas about the dangers of marijuana proved influential in the 1930s "reefer madness" campaign led by FBN commissioner Anslinger. His anti-marijuana push used racist language and propaganda to position marijuana as the nation's most dangerous drug. Anslinger was instrumental in organizing the public consciousness and lobbying Congress into action. Even so, given that some twenty-nine states carried restrictions on cannabis by 1931, Anslinger's singular role in driving prohibition has often been overstated. Nevertheless, Anslinger's campaign helped produce the 1937 Marihuana Tax Act (MTA). Though technically a revenue measure like the Harrison Act, the MTA was modeled on the "prohibitive tax" principle found in the National Firearms Act of 1934. By restricting the number of Marihuana Tax Stamps sold, the FBN essentially prohibited the sale and distribution of marijuana throughout the country.

Marijuana was thereafter prohibited by the federal government. Initially, its use remained relatively limited; and aside from minor plant eradication measures and sensational stories, so too did most enforcement measures. That changed with the passage of the 1952 Boggs Act and the 1956 Narcotics Control Act, which established mandatory sentencing guidelines for first-time marijuana possession. These penalties ranged from two to ten years in prison with fines of up to $20,000. By the mid-1960s, however, a growing belief that marijuana use was both pleasurable and benign led to its widespread popularity among a young cross-section of the population. As a result, many white, middleclass users found themselves in court facing harsh sentences for marijuana offenses. This resulted in a significant outcry to repeal marijuana sentencing laws. In 1970 Congress did just that, removing mandatory penalties for cannabis use. At the same time, however, marijuana was also classified among the most dangerous and addictive drugs under the Comprehensive Drug Abuse Prevention and Control Act of 1970. Eight months later President Nixon declared that drug abuse was "public enemy number one in the United States." Nevertheless, states across the country continued down the path toward eased marijuana restrictions. Between 1973 and 1978 twelve states, encompassing more than a third of the nation's population, legalized or decriminalized possession up to an ounce. In 1979 marijuana use among adolescents peaked in the United States. (7)

Two teenagers smoke marijuana near Leakey, Texas, in 1973. Photo by Marc St. Gil. Courtesy of U.S. National Archives.

One significant product of the marijuana liberalization debate in the 1960s and early 1970s was a new wave of scholarship that investigated the history of drug use and prohibitive policies in the United States. This period ultimately produced some of the most influential scholarship on the history of drugs in the United States and helped establish an interpretative basis for the origins of drug prohibition, especially the Marihuana Tax Act. (8) In this regard, there are some obvious parallels between the early 1970s and current debates on marijuana legalization. At present, states have moved to curtail penalties for marijuana possession and use. There has also been an explosion of research on the issue and an increasing depth of public engagement on the subject. Moreover, there is a growing belief among many that widespread legalization seems only a matter of time. Yet, those keen on marijuana's history will know this may not be the case. Indeed, the clear momentum for marijuana liberalization in the 1960s and 1970s was promptly turned back during the early 1980s. The rollback itself was led by a nationwide parents movement that pushed Congress to enact a new series of mandatory minimum sentences. (9) Under the "Just Say No" campaign and the Anti-drug Abuse Act of 1986, President Ronald Reagan responded with a wide net that swept up all drugs, including marijuana.

The results of these prohibitive measures are at least partly responsible for the recent criticism of the war on drugs and marijuana criminalization. The United States has the largest incarcerated population in the world, with well-documented racial disparities and arrest rates. (10) Moreover, many in the influential baby-boom generation view marijuana use in the context of their own youthful experimentation, expressing displeasure with harsh penalties. In this context it is easy to see how the existing historical scholarship on marijuana prohibition was, and continues to be, highly influential in this debate. Narratives of xenophobia, propaganda, and conspiracy make a powerful case for the folly of continuing an ill-conceived prohibition.

Yet, there is clearly a great deal more to the history of cannabis regulation in the United States than the racism and misinformation regularly attributed to Harry Anslinger and the FBN. It is not that those aspects of marijuana prohibition are unimportant; it is that they have often sustained a sensational narrative that ignores critical components of a muchlonger history. Indeed, barely two decades after the formal introduction of cannabis to American medicine, states across the country began restricting it. Though few of these nineteenth-century laws would be considered strict drug prohibitions when measured by the standards of today's war on drugs, they were legal restrictions on cannabis nonetheless. They represented attempts by individual states to regulate access to substances deemed potentially dangerous by medical doctors and pharmacists. Rarely the specific target of these measures, cannabis was nonetheless regularly included. Its established reputation as a dangerous drug carried well into the twentieth century, influencing its continued regulation. Taken together, local statutes and state laws established across the country between 1860 and the early 1930s resulted in disparate but nonetheless widespread restrictions on various aspects of the sale, growth, possession, and use of cannabis for medicinal or recreational purposes.

As for what this history might mean for the future of drug control or marijuana legalization, it is interesting to note the ways in which many of these laws set an extensive historical precedent for medical marijuana legislation. Indeed, common state-level regulations in the late-nineteenth century covered a range of issues, including the sale of adulterated drugs, erroneous or improper packaging and labeling, sales or transactions with minors, and inappropriate prescription refills. Many of these same types of issues have now resurfaced as Colorado, Washington, Oregon, and Alaska move forward with legalizing cannabis for both medicinal and recreational uses. Just as nineteenth-century state-level regulations ultimately formed the foundation for the legal evolution toward federal drug control, so too might individual states again serve as laboratories for the decentralization of marijuana regulation. In any case, during this moment of liberalizing sentiment on marijuana use, we could do worse than to demand a more comprehensive history alongside more open and rigorous science. There is no doubt much to learn from both.

ADAM RATHGE is a Ph.D. candidate in the history department at Boston College. His dissertation analyzes the development and transformation of medical discourse, regulatory processes, and social concerns surrounding cannabis between 1840 and 1940. He tweets at @ARRathge.

NOTES
(1)  "Haschisch Candy," The Boston Medical and Surgical Journal, 75 (Nov. 1866), 348–50.

(2) "Section 621—An Act to Provide for the Preservation of the Estates and Security of Persons of Unsound Mind, Who, by Habitual or Excessive Use of Poisonous Drugs, Have Become Incompetent to Manage Themselves and Estates with Prudence and Discretion," in Acts of the General Assembly of the Commonwealth of Kentucky (1872), 621.

(3) John Ordronaux, Commentaries on the Lunacy Laws of New York and on the Judicial Aspects of Insanity at Common Law and in Equity, Including Procedure, as Expounded in England and the United States (1878), 168.

(4) Acts and Resolutions Passed at the Regular Session of the General Assembly of the State of Iowa (1896), 79.

(5) David F. Musto, The American Disease: Origins of Narcotic Control, 3rd ed. (1999), 54–68, 216–19.

(6) General Laws of the State of California, as Amended up to the End of the Extra Session of 1916 (1916), 1271. Isaac Campos, Home Grown: Marijuana and the Origins of Mexico's War on Drugs (2012), 199.

(7) Emily Dufton, "You Won't Believe What Anti-pot Crusaders Said about Weed in the 1970s," History News Network, Jan. 27, 2014.

(8) For examples, see Howard S. Becker, Outsiders: Studies in the Sociology of Deviance (1963); David Solomon, ed., The Marihuana Papers (1966); Richard J. Bonnie and Charles H. Whitebread, "The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition," Virginia Law Review, 56 (Oct. 1970), 971–1203; Lester Grinspoon, Marihuana Reconsidered (1971); Musto, The American Disease; and Richard J. Bonnie and Charles H. Whitebread, The Marihuana Conviction: A History of Marihuana Prohibition in the United States (1974).

(9) Emily Dufton, "Just Say Know: How the Parent Movement Shaped America's Modern War on Drugs, 1970–2000" (Dissertation, George Washington University, 2014).

(10) Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).