Cannabis and the Constitution: A Brief History of Cannabis in the U.S.

Lisa Rough

The Constitution of the United States is arguably the most important document in the history of this country, aside from possibly the Declaration of Independence. It forms the backbone of America’s most basic rights, liberties, and laws upon which democracy is founded.

In its original form, the Constitution contained no mention of drugs or alcohol. In order to enact alcohol prohibition, the Eighteenth Amendment was introduced and ratified in 1919, specifically stating that the production, transport, and sale of alcohol was illegal. The prohibition of alcohol lasted 13 years, until the Twenty-first Amendment was introduced to repeal the Eighteenth Amendment in its entirety and re-legalize alcohol.

There is no mention of cannabis, nor any other drugs, in the Constitution. Does that mean that the prohibition of cannabis is unconstitutional?

There is no mention of cannabis, nor any other drugs, in the Constitution. Does that mean that the prohibition of cannabis is unconstitutional?

The first international prohibition of drugs came in the form of the International Opium Convention, an international drug treaty commissioned in response to the rising opium trade. The International Opium Convention was signed on January 23, 1912 and went into force globally in 1919, when it was incorporated into the Treaty of Versailles. The initial objective of the treaty was not prohibition or criminalization of drugs, but rather restricting exports of opium, coca, and cannabis.

In the United States, the Pure Food and Drug Act of 1906 was the first law of its kind to deem cannabis, along with alcohol, morphine, and opium, as “addictive and/or dangerous.” The law required drug labels to list any of these ingredients, and was primarily a “truth in labeling” law, although it was credited with paving the way for the eventual creation of the Food and Drug Administration. Curiously, cannabis, cocaine, heroin, and other such drugs continued to be available legally without a prescription, so long as they were properly labeled.

Then, along came Harry Anslinger.

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As head of the Federal Bureau of Narcotics, Anslinger took note of the rising use of cannabis in the 1930’s. In 1935, he urged Franklin D. Roosevelt to adopt the Uniform State Narcotic Act, using the Hearst newspaper chain to promote the campaign. The Uniform State Act defined “habit forming drugs” as coca leaves, opium, “cannabis indica,” or “cannabis sativa,” and although only nine states adopted the regulations, it was drafted without any scientific study or evidentiary basis for the marijuana section.

Anslinger continued on a nationwide campaign against cannabis, declaring that marijuana causes temporary insanity. He produced films and advertisements that featured young people smoking cannabis, committing crimes, and killing themselves or others. This is exemplified in the infamous propaganda film, Reefer Madness.

The U.S. government official also made no compunctions about who, exactly, the campaign was aimed against. “Reefer makes darkies think they’re as good as white men,” Anslinger said. “The primary reason to outlaw marijuana is its effect on the degenerate races.” He also offered a charming portrait of the average cannabis consumer, to his knowledge. “Most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz and swing, result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and any others.”

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In 1937, Anslinger drafted the Marijuana Tax Act, which did not criminalize the possession or use of cannabis; rather, it imposed a tax equaling roughly one dollar on anyone commercially dealing in cannabis or hemp.

Dr. William Woodward, legislative counsel to the American Medical Association, vehemently opposed the bill, noting that much of the “evidence” presented originated from Anslinger himself, and that the use of the word “marijuana,” which was largely unknown at the time, prevented physicians from realizing they would lose cannabis as medicine. “Marijuana is not the correct term,” argued Woodward. “Yet the burden of this bill is placed heavily on the doctors and pharmacists of this country.”

Anslinger may not have actually created the law to prohibit cannabis, but he is certainly responsible for changing the public perception of cannabis from an innocuous substance available in many tinctures and medicines at the pharmacy to a dangerous, addictive, stigmatized drug, a perception that persists today.


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In 1969, Richard Nixon drafted the Controlled Substances Act, the legislation that criminalized the use and possession of cannabis, and ruled that marijuana has a high potential for abuse and no established medicinal value. The term “controlled substance” was defined to exclude alcohol and tobacco, an important exemption, as these are two of the most widely used drugs (with some of the most addictive properties).

The United States Constitution was drafted in order to spread power among many groups, by a system of checks and balances to ensure that no one person has too much power. Thus, the Controlled Substances Act could be changed by the Attorney General, the Drug Enforcement Administration, Congress, the Department of Health and Human Services, or by petition from any interested party.

Since 1970, there have been numerous petitions to reschedule cannabis. The first petition was filed by NORML in 1972 and was not given a hearing until 1986, and another attempt in 1981 from Representative Stewart McKinney was also shot down. Since then, it has been a recurrent theme of petition and denial through the years.

“Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.”

Francis L. Young, DEA Administrative Law Judge

During a hearing on the subject in 1988, DEA Administrative Law Judge Francis L. Young concluded that, “In strict medical terms, marijuana is far safer than many foods we commonly consume…Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.”

Whether or not the prohibition of cannabis is unconstitutional, perhaps it is time to reconsider whether the prohibition of cannabis is truly for the safety of the country, or simply for the peace of mind of a few select opponents still entrenched in the past.

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The Origin of the Word ‘Marijuana’

Anna Wilcox

The word “marijuana” plays a controversial role in cannabis culture. Many well-known organizations such as Oakland’s Harborside Heath Center have publicly denounced “the M word” in favor of our favorite plant’s Latinate name, cannabis. Even Salon Magazine, a major press outlet outside of the cannabis industry, published an article titled “Is the word ‘Marijuana’ racist?” last year.

As mainstream culture becomes a little more herb-friendly, the terminology used by the industry is coming to center stage. But, why exactly does the term “marijuana” cause so much debate? Even worse, why has the word gained publicity as a racist term?

To save you from reading those lengthy history books or some boring academic articles, we’ve created this brief timeline to give you the low-down on “marijuana”’s rise to popularity in the United States. Here’s what you need to know:

The Mexican Revolution

1840-1900:

Prior to 1910, “marijuana” didn’t exist as a word in American culture. Rather, “cannabis” was used, most often in reference to medicines and remedies for common household ailments. In the early 1900s, what have now become pharmaceutical giants—Bristol-Meyer’s Squib and Eli Lilly—used to include cannabis and cannabis extracts in their medicines.

During this time, Americans (particularly elite Americans) were going through a hashish trend. Glamorized by literary celebrities such as Alexander Dumas, experimenting with cannabis products became a fad among those wealthy enough to afford imported goods.

1910:

Between the years of 1910 and 1920, over 890,000 Mexicans legally immigrated into the United States seeking refuge from the wreckage of civil war. Though cannabis had been a part of U.S. history since the country’s beginnings, the idea of smoking the plant recreationally was not as common as other forms of consumption. The idea of smoking cannabis entered mainstream American consciousness after the arrival of immigrants who brought the smoking habit with them.

1913:

The first bill criminalizing the cultivation of “locoweed” was passed in California. The bill was a major push from the Board of Pharmacy as a way to regulate opiates and psychoactive pharmaceuticals, and seemingly did not stem from the “reefer madness” or racialized understanding of “marijuana” that paved the way to full-on prohibition in the 1930s.

The Aftermath

1930s:

The Great Depression had just hit the United States, and Americans were searching for someone to blame. Due to the influx of immigrants (particularly in the South) and the rise of suggestive jazz music, many white Americans began to treat cannabis (and, arguably, the Blacks and Mexican immigrants who consumed it) as a foreign substance used to corrupt the minds and bodies of low-class individuals.

In the time just before the federal criminalization of the plant, 29 states independently banned the herb that came to be known as “marijuana.”

Harry Anslinger:

It would not be an overstatement to say that Harry Anslinger was one of the primary individuals responsible for creating the stigma surrounding cannabis. Hired as the first director of the recently created Federal Bureau of Narcotics in 1930, Anslinger launched a vigilant campaign against cannabis that would hold steady for the three decades he remained in office.

A very outspoken man, Anslinger used the recent development of the movie theater to spread messages that racialized the plant for white audiences. In one documented incident, Anslinger testified before Congress, explaining:

“Marijuana is the most violence-causing drug in the history of mankind… Most marijuana smokers are Negroes, Hispanics, Filipinos and entertainers. Their satanic music, jazz and swing, result from marijuana usage.”

In another statement, Anslinger articulated: “Reefer makes darkies think they’re as good as white men…the primary reason to outlaw marijuana is its effect on the degenerate races.”

In retrospect, Anslinger’s efforts with the Bureau of Narcotics were the reason “marijuana” became a word known by Americans all over the country. When making public appearances and crafting propaganda films such as Reefer Madness, Anslinger specifically used the term “marijuana” when campaigning against the plant, adding to the development of the herb’s new “foreign” identity.

Cannabis was no longer the plant substance found in medicines and consumed unanimously by American’s all over the country.

1937:

The Marihuana Tax Act of 1937 was the culmination of Anslinger’s work and the first step to all-out prohibition. The bill federally criminalized the cannabis plant in every U.S. state. In order to discourage the production of cannabis use, the Tax Act of 1937 placed a one dollar tax on anyone who sold or cultivated the cannabis plant.

On top of the tax itself, the bill mandated that all individuals comply with certain enforcement provisions. Violation of the provisions would result in imprisonment and/or a fine of up to $2,000.

Though the word “marijuana” is the most common name for cannabis in the United States today, its history is deeply steeped in race, politics, and a complicated cultural revolution. Some argue that using the word ignores a history of oppression against Mexican immigrants and African Americans, while others insist that the term has now lost its prejudiced bite. Regardless of whether or not you decide to use the word yourself, it’s impossible to deny the magnitude and racial implications of its introduction to the American lexicon.

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How The ‘Cannabis Catch-22’ Keeps Marijuana Classified As A Harmful Drug

 

Marijuana grows in the home of two medical marijuana patients in Medford, Ore.

America has a long and storied history with marijuana. Once grown by American colonists to make hemp rope, by 1970, it was classified as a Schedule 1 narcotic. Possession of it was — and is — a federal crime, despite the fact that in recent years 25 states have legalized medical marijuana and four states and the District of Columbia have legalized cannabis for recreational use.

Author John Hudak, a senior fellow at the Brookings Institution, traces the history of America’s laws and attitudes toward cannabis in his new book, Marijuana: A Short History. He tells Fresh Air‘s Dave Davies that the recent shift in public policy is, in part, a recognition of the drug’s medicinal value, which became apparent in San Francisco during the AIDS crisis of the 1980s.

“People were saying, ‘If I smoke this and I get the munchies, maybe it will help people dying of AIDS who are so nauseated that they can’t eat and they’re dealing with clinical anorexia as a result of that,’ ” Hudak explains.

The grass-roots movement turned political, and in 1996, California became the first state to pass a medical marijuana ballot initiative. Other states followed, though the impetus for the movement grew beyond the medicinal.

“One significant argument in favor of adult use marijuana that not many people talk about is a simple one, and that is some people just like to get high,” Hudak says. “I think in this policy debate, oftentimes seeing marijuana as a recreational product, it is frowned upon to discuss it, but it’s a reality. People enjoy it like people enjoy wine or people enjoy a good steak.”


Interview Highlights

On Harry Anslinger, who played a pivotal role in the effort to criminalize marijuana

Harry Anslinger was the nation’s first real drug czar. He came from the Bureau of Prohibition and was put in charge of a variety of federal government agencies that changed names over the course of time, but were effectively the precursors for the Drug Enforcement [Administration].

He was essentially the J. Edgar Hoover of drugs in the United States. He had the same types of tactics that Hoover had — that was being very aggressive with Congress, going into the media to try to advance his political and policy interests. He had, by all accounts, details and histories of members of Congress and senators that they did not want to become public, and he was a one-man force in expanding drug prohibition in the United States. He did this for a variety of drugs, but he had a special place in his heart for marijuana.

On how marijuana use was made into a racial issue

Anslinger brought to it this real racialized aspect. I mean, he was an absolute avowed racist, and when you look at the letters he wrote to different civic organizations or op-eds that he published, or even congressional testimony, it is riddled with racist language and racist claims about the use of marijuana really being only in Mexican communities in the Southwest, and then eventually it transitioned to be a product that was used by the individuals who were around jazz music, which of course was code language for the African-American community.

And so proceeded this racialized history, and [Anslinger] … claimed that marijuana would turn people into psychopaths, murderers, rapists — it would make women promiscuous, particularly promiscuous around men of color, and this was seen as something that was brought into communities by people of color in order to make the most vulnerable in society behave in ways that would appall society.

On government efforts to suppress studies that showed that marijuana was not as addictive or dangerous as had been claimed

In the 1970s President Nixon commissioned the former governor of Pennsylvania, Ray Shafer, who was a good friend, a fellow Republican, a good friend of Nixon’s, to commission this report about this evil drug infecting society, and Shafer came up, again, with the same answers — it wasn’t as addicting, that there were reasons to try to think about this drug in different ways than the federal government was thinking about it, that it wasn’t causing violent crime.

Shafer was actually called into the Oval Office and read off by the president for this draft report, and [Nixon] said to Shafer, “You cannot publish this.” And Shafer stood his ground. He said, “I’m publishing it.” And Nixon trashed that.

It was just this extended period of president after president asking for answers, not getting the answers that he liked, and then throwing the report away.

On what led to policy change for use of marijuana

This really began in the Castro District of San Francisco in the late 1980s and early 1990s. The AIDS epidemic was … ravaging this community, and it was one that individuals, I think, looked at this product that was largely being used recreationally and understood that it helped with pain relief.

So you had a few individuals — Dennis Peron is one; a woman named Brownie Mary who was an orderly at a hospital in San Francisco who would bake brownies laced with marijuana and deliver them to AIDS patients each day. This community popped up around delivering medical cannabis for those who are dying.

And it wasn’t only people dying of AIDS, it was people who had a variety of ailments — and that grass-roots, underground, even though it was pretty much in the daylight for some time, movement transitioned into a political one, and in 1996 California became the first state to pass a medical marijuana ballot initiative.

On arguments in favor of legalization

We have 750,000 arrests in a year that have to do with marijuana. And so in communities of color that criminal justice argument is a tremendous one. For libertarians you talk about personal liberty and privacy and property rights, and that is an important issue for them. For conservatives or liberals who are interested in balancing the budget, talking about all of the law enforcement dollars that are spent on the prosecution and investigation of marijuana crimes in a year, that’s budget savings, as well as revenue in the door on the tax side.

For others, it is about product safety, understanding that a regulatory system is going to be able to test the product and you’ll know exactly as a consumer what you’re getting, whereas on the black market you don’t know that.

On the federal government’s decision this past summer to continue the Schedule 1 classification of marijuana

One of the reasons for the maintenance of marijuana as a Schedule 1 substance was that the medical community is not convinced of its medical value. There are plenty of doctors who believe that there is medical value to marijuana, they’re willing to recommend it to patients, but the threshold required to demonstrate medical value for the medical community as a whole is much higher than it is for the reform community.

There is this cannabis Catch-22 and it is, as a Schedule 1 drug, it is very difficult to do research on the plant. There are only certain researchers who will get the certification and licensure necessary to handle the drug. Then, of course, you need the funding to study it. You need approval from university institutional review boards, and the burdens that exist to do the type of research on a Schedule 1 drug are tremendous. But that research is what will inform the medical community as to its medical use, and so what you need and what you can do are entirely prevented by this federal government policy.

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