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IN THE DAYS before marihuana became a political issue in the United States, dissent was rarely voiced to the long-standing social policy vehemently opposed to its use and to the harsh legal policy of jailing its users. This consensus has been shattered, but an al-ternative one is not yet in view.
The pivotal issue in the current debate is which of the nation's contradictory policies toward intoxicant use will be applied to marihuana. Proponents of change never fail to raise in their behalf the relative dangers of alcohol use and inevitable repeal of its prohibition, predicting a similar fate for present marihuana policy. Opponents of change dismiss the comparison, asking whether this society should be satisfied with the consequences of repeal, and linking marihuana instead to a public consensus opposed to "narcotics" and "drug abuse."
In the following pages, we will trace the development of the original marihuana consensus during the first third of the twentieth century and will illustrate why, once challenged, it collapsed so easily. To do so, however, we must describe the policy-making environment in which the initial consensus was rooted. Paradoxi-cally, that environment remains the same today as when the marihuana story began: American society was grappling incon-sistently and inconclusively with the difficult moral, social, and legal issues surrounding the use and misuse of psychoactive drugs. Then, as now, policy makers were concerned about the widespread use of psychoactive drugs, and turned to the law for recourse, establishing two separate precedents in the course of the initial legal response. By the time marihuana appeared on the same, a major social response had already been formulated, and marihuana policy was determined by the legal environment into which it was thrust. And so it is today.
Drug Use at the Turn of the Century
Alcohol, of course, had been around from the beginning. When the Puritans set sail for Massachusetts, they had brought with them 42 tons of beer and 10,000 gallons of wine.1 Although alcohol was applied sporadically for therapeutic purposes, intoxication was its acknowledged role in colonial life, as had long been true of occidental civilization.
The first contribution of the New World to the drug habits of the Old was tobacco.2 Previous successes in South and Central America encouraged John Rolfe to launch an experiment in tobacco cultivation in Virginia in 1613. As a result of his success, the leaf became the economic mainstay of the Southern colonies. Within seven years Virginia exported to England nothing else but tobacsco and a little sassafras. The practices of sniffing and chewing tobacco spread quickly among the colonial population and made significant inroads in the mother country as well.
Charles Dickens, during his mid-nineteenth-century tour of the States, ,observed how deeply the habit permeated the American scene:
Washington may be called the headquarters of tobacco-tinctured saliva. . . . In all the public places of America, this filthy custom is recognized. In the courts of law, the judge has his spittoon, the crier his, the witness his, and the prisoner his; while the jurymen and spectators are provided for. . . . The stranger will find [the custom] in its full bloom of glory, luxuriant in all its alarming recklessness, at Washington
Until the mid-nineteenth century, most domestically consumed tobacco was chewed. Then the pipe and the cigar attracted ad-herents, and after the Civil War the practice of cigarette-smoking was introduced, taking root despite widespread criticism. When the incidence of cigarette use increased substantially after World War I, this habit supplanted all other forms of tobacco consumption, and any pretense that the tobacco leaf had medicinal applications had all but vanished.
The Civil War period also marks another important development in the history of American drug use. Opium had long been available as a painkiller to practitioners of the healing arts, and was widely used in nineteenth- century America. The medical profession was aware that the oral use of opium could result in an "appetite" for the drug, a phenomenon regarded in the same category as the "alcohol habit." This awareness was apparently of insufficient moment to suggest the need for caution when morphine was discovered in 1803 and when the hypodermic syringe was intro-duced in the middle of the century
Human suffering was of untold dimensions during the Civil War, and the opiates, particularly morphine, were used indiscriminately for the wholesale relief of pain and, most significantly, for treat-ment of common gastrointestinal ailments; opiate withdrawal became known as the "army disease," and many veterans are thought to have returned addicted to these drugs.5 Overmedication continued unabated after peace had been restored, for morphine, widely used in medical practice, was also readily available outside the medical system in proprietary medicines. Within a few years "morphinomanie" became a recognizable medical entity, as per-sons given morphine for legitimate therapeutic purposes often found themselves addicted The problem was exacerbated by the absence of restrictions upon druggists in refilling prescriptions con-taining excessive amounts of morphine and other opiates
The scope of excessive medication increased in 1884 when Koller discovered the local anesthetic properties of cocaine, and again in 1898 when an advance in German chemistry produced heroin. Initially marketed as a cough suppressants, heroin was publicized as having many of the virtues and few of the dangers of morphine; some even suggested that it would be useful in the treatment of morphinism itself.8 This drug was soon widely used for pain relief and other medicinal purposes
The drug habit reached still deeper into American society through the promotion and unrestricted use of proprietary medi-cines. Exotically labeled elixirs such as Dr. Brown's Snake Oil were advertised as general cures for ills ranging from snakebite to melan-cholia. Because the contents did not have to be printed on the label, many an unsuspecting person became addicted without ever knowing that the medicine that worked so well contained large quantities of opiates°
In sum, careless prescriptions, repeated dispensation, and hidden distribution of harmful drugs whose dependence liability was un-known until too late, fostered a large addict population which continued to increase into the early twentieth century. Since accidental addiction and overmedication played such a large role, the addict population was middle class, included more females than males, more whites than blacks, and cut across geographic lines.11 Although the medical profession became increasingly aware of this phenomenon of medically based opiate use in the last years of the century, it was invisible to the general public and was not a matter of major concern outside the profession until the first decade of the present century.
But not all opiate use was medicinal. The Chinese Opium Wars and the romantic appeal of the mysterious Orient whetted the interest of the Western intellectual elite in opium-smoking during the middle of the nineteenth century. Coleridge, De Quincey, and others memorialized their mystical experiences in their literature. Then, after the Civil War, the practice of opium-smoking gained a stronger foothold among the American population when Chinese immigrants began filtering into California, particularly San Fran-cisco. Opium dens proliferated as the exotic oriental ritual attracted American curiosity. One observer noted in 1882 that sometime around 1875, "authorities became cognizant of the fact . . . that many women and young girls, and also young men of respectable family, were being induced to visit the dens . . ."12 Opium soon found its way into the underworld, and the practice spread among the deviant subcultures of the nation's cities. This population also began to sniff cocaine, the active ingredient of South American coca leaves.
This then was the nature and scope of American drug use at the turn of the twentieth century. Alcohol was well rooted across the entire population, particularly in the West; cigarette-smoking was seeping into the cultural mainstream; a significant percentage of the adult population (conservatively estimated at 125,000 persons) had innocently become addicted to the opiates; opium-smoking had developed a substantial following in the West and among the urban elite; and the intoxicant use of opium, morphine, and co-caine had now appeared in the streets of the nation's cities.
The Social Response to Twentieth-Century Drug Use
By the turn of the century, America was in the throes of a major social transformation. Rapid conversion from an agrarian to an industrial state wrought substantial changes in the style and compo-sition of American life. Large businesses and corporations had developed vast economic power, slowly driving their smaller com-petitors out of business. The nation had become urbanized as the industrial cities siphoned off attention and manpower from the farms. As this process unfolded, the poverty and social disrup-tion of the burgeoning cities drew horrified commentary from novelists, politicians, newspapers, and social observers. To satisfy the manpower needs of an expanding economy, the nation wel-comed successive waves of immigrants in the nineteenth and early twentieth centuries. These immigrants brought with them different religions, strange languages, and distinctly "un-American" customs.
Leading the governmental response to this massive upheaval in the economic, political, and social life of America was an amor-phous group of urban reformers who set out confidently to remedy the industrial and institutional ills plaguing their nation.° The nationalist spirit manifested in the Spanish-American War was now directed to fulfillment of America's highest domestic aspirations. Although their proposals had utilitarian dimensions, the reformers were engaged in a distinctly moral enterprise, seeking "good gouvernement" free of corruption, economic competition free of trusts and exploitation, and cities free of vice and degradation.
Moral reform had been a strong undercurrent of nineteenth-century American life, and—as in the case of alcohol—every social ill attracted its own group of organized adversaries. As the century progressed and the institutional evils of industrialization and urbanization became apparent, this reform sentiment gradually turned to the government and the law to protect the moral fiber of the nation. The moral strength of the individual was no longer believed sufficient to counter corporate selfishness, political cor-ruption, and urban degradation.
By the end of the century, reform sentiment had entered the political arena in unusual strength. The resort to politics was not new; what was new was the serious manner with which the reformers went about the business of organizirig and functioning within the practical confines of a political system. Perhaps the reformers had rnatured, no longer relying on moral exhortations alone. In any event, the most practical and, for this reason, perhaps, the most successful of the reforming groups, was that amorphous conglomerate called the Progressives. Slogans and social structure aside, Progressivism was propelled by a belief that legislation was an effective tool for achieving moral reform and by an organized political effort at every level of government to implement this creed.
The economic virtues of hard work, competition, and individu-alism, tempered by the social virtue of humanitarianism, formed the core of the reform ideology. Superimposed on the entire effort was a Calvinist urge to demonstrate superior moral status. Since they considered the morality of the nation to depend on the appearance of its institutions, the reformers engaged in a national campaign to purify the cities, the businesses, and the political process itself. Further, since national progress depended on the economic and political contribution of every individual, the re-formers aimed to remove the urban vices impeding individual productivity and moral perfection.
The reform faith in the moral perfectibility of every citizen was concretely manifested in a continuing effort to cleanse the moral environment of the cities. Particularly important was reformers' protective attitude toward urban children who were exploited economically by day and tempted morally by night. Through the juvenile court movement, the reformers sought to extricate the errant child from his injurious environment and to redirect his path. Through child labor laws, the reformers aimed to curb the worst excesses of the giant industrial complexes hungry for the cheap labor offered by women, children, and immigrants.
Most reformers also opposed the political and economic exploi-tation of the immigrants, whose depressed wages facilitated economic concentration, and whose ignorance of American political institutions and unfamiliarity with the democratic system were the perfect cement in the urban political machines. These reformers were intolerant of the institutions rather than of the immigrants themselves. Taking a deterministic and democratic approach to the urban masses, the Progressives were generally not associated with the xenophobic pressure for immigration restriction that recurred throughout the late nineteenth and early twentieth centuries.
While the reform movement was not overtly nativistic, it is important to comprehend its ambivalence toward the immigrants gathering in the nation's urban areas. A number of reformers held the cosmopolitan view, according to which ethnic cross-pollination improved the quality of the American species. A more widely held opinion implicitly postulated the moral superiority of the white, Protestant, Anglo-Saxon breed and confidently affirmed its capa-city to assimilate diverse cultural groups. To the nationalist image of America as a haven for the oppressed was added the heady optimism of belief in the melting pot. In Justice Holmes's words, the Americans were "the Romans of the modern world, the great assimilating people."14
Yet, as John Higham has demonstrated in his classic work Strangers in the Land,15 the assimilationist attitude contained within it the seeds of nativism. Absorption, not cultural pluralism, was the preferred outcome. As one newspaper put it in 1888, "the strong stomach of American civilization will ultimately digest this unsavory and repellent throng."16 Twenty years later one of the most race conscious of America's social scientists concluded that the "vortical suction of our civilization is stronger now than ever before."17 But whenever this confidence in the native stock's ability to assimilate was shaken, a cry for immigration restriction was heard. And whenever fear—of economic adversity, internal subversion, or international militarism—gripped the population, national wrath was turned toward the foreign born.
During the Progressive era, however, confidence—not fear—was the controlling public policy, and its democratic, environmentalist ideology focused on integrating the immigrant into the American system rather than protecting that system from him. At the same time, the moral certainty of the reformers precluded toleration of any of the immigrants' "habits of life" which were inconsistent with the prevailing value system.
The unrestrained marketing practices of the pharmaceutical companies, which tended to foster the "drug habit evil" among the children, among the immigrants, and among the weak and un-suspecting, posed a ripe target for the reformers, as did the economic excesses of the liquor industry. Here, as in no other area of American life, governmental intervention was clearly needed to purify industries with so much power to harm the ordinary citizen. Further, drugs, like the cities themselves, were thought to be seductive, bidding pleasure and comfort as the first step on the inexorable path to addiction, immorality, criminality, and death. From this perspective, the reformers viewed all habit-forming drugs as interchangeable sources of misery, all of which had to be purged from the urban environment. Only then could the weak avoid temptation, the fallen be saved, and the immigrant be protected.
To summarize, the social response to drug use in the early twentieth century was framed by a policy-making ideology that combined faith in the moral superiority of the dominant social order, confidence in the inevitability of moral (and therefore social) progress, preference for cultural homogeneity, intolerance of insti-tutional "evils," paternalism toward children and immigrants, and faith in governmental action. This response took two separate paths, one directed at "narcotics," meaning the opiates and co-caine, and another directed at alcohol and, to a lesser extent, tobacco. Narcotics policy, as it slowly emerged, was supported by a latent popular consensus; alcohol policy, however, was conceived and abandoned in conflict.
The Antinarcotics Consensus
Up until the last two decades of the nineteenth century, little concerted governmental action had been taken to control the manufacture, distribution, or consumption of psychoactive drugs. Legal restraints were confined for the most part to state laws regulating pharmacies and restricting the distribution of poisons (which generally included the opiates and other medicines). Despite a mushrooming opiate dependence problem arising from unre-strained distribution within the medical system, it was the "street" use of opiates and cocaine which accelerated professional and public interest in their habit-forming properties. Indeed, legislative attention (and medical understanding of drug properties as well) seems to have occurred only after each new drug achieved a significant degree of "street" use, especially when that use was identified with the poor, racial minorities and criminal classes. For example, the earliest state laws focused primarily on crime preven-tion and public education regarding the dangers of opiate use.18 The first wave of prohibitory drug (nonalcohol) legislation per-tained to opium-smoking, which first appeared on the West Coast after the Civil War, and gradually spread to the outcast populations of major cities. In 1875 a San Francisco ordinance prohibited the smoking or possession of opium, the possession of opium pipes, and the maintenance of opium dens. Then, beginning with the Nevada law which prohibited the retail sale of smoking opium in 1877, twenty states enacted statutes designed directly to eradicate the alien practice, either by prohibiting the operation of opium dens or by prohibiting the smoking and possession of opium altogether.19
These early opium prohibitions, the first drug legislation to criminalize the consumer for his indulgence, clearly had more to do with the drug's users than with the drug itself—most (eleven) were passed in western states where there was little pretense of assimilat-ing the newly immigrated Chinese populations: Nevada (1877), South Dakota and North Dakota (1879), Utah (1880), California and Montana (1881), Wyoming (1882), Arizona (1883), Idahcrand New Mexico (1887), and Washington (1890). The violence of the anti-Chinese agitation during the seventies and eighties was matched only by the viciousness of the rhetoric; in 1882 the federal govern-ment responded by forbidding further Chinese immigration. Called upon to test the constitutionality of opium prohibition, even ale appellate judiciary recognized the law's ethnic origins: "Smoking opium is not our vice, and therefore, it may be that this legislation proceeds more from a desire to vex and annoy the "Heathen Chinee" in this respect, than to protect the people from the evil habit."2°
While opium-smoking was attracting interest in the West, the use of cocaine was recorded in the South. By the turn of the century "cocaïnomanie" among Southern blacks had become a matter of official concern, and violent criminal conduct was frequently attri-buted to the influence of cocaine
By the early years of the twentieth century, morphine had replaced smoking opium as the opiate of choice in the streets.22 Now morphine and cocaine (heroin had not yet surfaced in the streets to any significant extent) were identified with the under-world of the "vicious" cities—the prostitutes, pimps, gamblers, and blacks—and the public was aroused against the "menace" of "morphinism." Law enforcement officials in the major cities led the attack;23 as these drugs became identified with urban crime, opiate use was gradually shorn of its mystical appeal, and the image of the dope fiend took root in the public mind.
As the widespread use of opiates and cocaine inside and outside medical practice was brought forcefully to public attention, the medical profession, the law enforcement community, and the state legislatures intensified previously casual efforts to bring the medical distribution of "narcotics" under control, primarily by tightening the restrictions on prescription practices and pharmacies and by prohibiting nonmedical distribution Whereas only a handful of states restricted the availability of opiates and cocaine to prescrip-tions before 1900, most enacted laws "designed to minimize the drug-habit evil" by 19 1 2. Prescriptions were required for distribu-tion of cocaine in forty-four states, of opiates in thirty-three, and of chloral hydrate in fifteen.25
Meanwhile, pressure for comprehensive federal legislation was mushrooming as public alarm over the "narcotics evil" escalated year by year. In 1906 Congress passed the Pure Food and Drug Act, the first major federal drug legislation to require labeling of all preparations containing more than prescribed amounts of opiates, and the availability of proprietaries containing significant quantities of these drugs diminished dramatically.26 The 1909 "Act to Prohibit Importation and Use of Opium," barred the importation of opium at other than specified ports and for other than medicinal use. The law further required the keeping of import records. The main force behind the passage of this statute was a desire to establish the United States' formal opposition to nonmedical use of opiates as the nation's delegation prepared for international proceedings.27
A few years later state antinarcotics legislation began to take on crusade proportions. New additional federal regulation of the inter-state trade in cocaine, morphine, and heroin was said to be neces-sary because effective control was beyond the competence of the states and was mandated by U.S. obligations under the recently formulated Hague Convention of 19 1 2. Consequently, the Harrison Act, for fifty-six years the foundation of federal law controlling narcotic drugs, was passed in 1914.28
The Harrison Act required registration and payment of an occupational tax by all persons who imported, produced, dealt in, sold, or gave away opium and coca leaves and their derivatives. All registered handlers were required to file returns setting forth in detail their use of the drugs and to use special order forms in mak-ing any transfer. Conversely, it was unlawful for anyone to purchase, sell, dispense, or distribute any of these "narcotic" drugs without having registered or paid the tax; and it was also unlawful to transfer these drugs without using an official written order form prepared by the recipient. Finally, mere possession of these drugs without a prescription was presumptive evidence of violation of the act.
An important objective of the Harrison Act was to regulate the legitimate commerce in the opiates and cocaine in order to bring this traffic into observable and controllable channels. Every trans-action was subject to some official paperwork, and the regulatory devices went well beyond those necessary for the collection of the excise and registration taxes.
Why had Congress chosen this awkward revenue mechanism for what was clearly a regulatory enactment? In simple terms, Congress was attempting to do indirectly that which it believed it could not do directly: regulate the practice of medicine and the intrastate sale and possession of drugs. In 1914 when Congress enacted the Harrison Act, the prevailing interpretation of its powers to regulate interstate and foreign commerce and to raise revenue was that these powers were limited and that the power to regulate "local" affairs had been reserved to the states by the Tenth Amendment.29 Thus, as the Supreme Court pointed out in 1925 in a case con-struing the act, "direct control of medical practice in the states is beyond the power of the Federal Government."3° By using its taxing powers, however, Congress was regulating these local activi-ties only "incidentally," in order to facilitate implementation of its primary intent—the raising of revenue. Ultimately, the Supreme Court allowed Congress to get away with this ruse, but only by a five-to-four margin.3I
The Harrison Act crystallized a firm national policy of curtailing the availability of "habit-forming" substances. The previous failure of the medical profession to appreciate the dependence liability of new substances had now resulted in professional and legislative preoccupation with this issue. In addition, each of the so-called "narcotic" drugs had, in its turn, been associated with criminal behavior, an association which the popular imagination attributed to the drug rather than to the lifestyle of its street users.
In short, the drug habit led to crime and slothfulness, and any nonmedical use inevitably tended to excess. At its core, then, the Harrison Act embodied a strong ideological and moral antipathy to habitual drug use in general and to the nonmedical or "street" use of the "narcotic" drugs in particular.32 "We are an opium-consum-ing nation today," thundered Congressman Harrison in 1 9 1 3, lamenting that the "shameless traffic" in the opiates had created "criminal classes" and that their use "with such accompanying moral and economic degradation is widespread among the upper classes of society."33
As to the undesirability and immorality of the use of opiates or cocaine for pleasure, there was no debate. Such use was inconsis-tent with the entire ideology guiding public policy makers during this period. The "narcotic" drug severely impeded individual par-ticipation in the economic and political systems by enslaving its unsupervised users in the clutches of addiction. Increasingly associ-ated with the slothful and immoral "criminal classes" who degraded the nation's cities, narcotics use threatened to retard national growth with pauperism, moral degeneracy, and crime. A consensus had emerged: the nonmedical use of "narcotics" was a cancer which had to be removed entirely from the social organism.
In the context of curtailing availability and use of habit-forming drugs, Congress undoubtedly intended to prohibit habitual drug use. Indeed, a wide spectrum of official and professional opinion considered the satisfaction of a preexisting drug habit to be an impermissible medical practice. Although Congress did not address the question of maintenance expressly, and congressional intent continues to be the subject of lively debate it is difficult to believe the legislators were oblivious to the fate of perhaps a quarter of a million opiate-dependent persons (about evenly divided between "medical" and "street" addiction).35 Under the Harrison Act, persons possessing drugs secured pursuant to a prescription or received directly from a physician were naturally excepted from the general prohibitions of transportation and possession. In this connection, exceptions to the various order forms and transfer provisions were tied to "legitimate medical purposes" (or similar language). It was a common medical practice in many states36 before the act for physicians to prescribe these drugs to maintain an addict on a "comfort" regimen or on a graduated withdrawal schedule, although the legislatures of at least ten states expressly forbade this practice.
One view is that Congress anticipated the early development of a drug-free "cure" for addiction and therefore intended to preclude maintenance, except perhaps on a temporary basis. The opposing view is that Congress did not intend to prohibit maintenance but that the Prohibition Unit of the Treasury Department, which became responsible for narcotics enforcement in 1920, cunningly converted the Harrison Act into a prohibitory statute by using the courts to discourage private physicians from having anything to do with narcotics addicts, and by closing the narcotics "clinics" or dispensaries which had developed to provide a controlled supply for addicts who were suddenly cut off from other drugs by the Harrison Act and by the Treasury's vigorous enforcement policy.37
The question of congressional intent is somewhat moot. A, cure was not forthcoming, and the addict was ultimately closed off from medical assistance, and was forced underground to purchase his drug. By imposing the stamp of immorality and criminality on all habitual narcotics use outside limited medical channels, official-dom generated a self-fulfilling prophecy. Inflated underground prices often provoked criminal activity which in turn cemented the link between iniquity and drug addiction. Dr. Lawrence Kolb, who emerged during this period as one of the government's leading medical experts on addiction, has noted: "[A] result of the physician's resignation to pressure was that addicts to the opiates began to commit petty crimes in order to secure the drugs which could prevent their suffering. These inevitable law-induced crimes greatly accentuated the general public belief that opiates had some inherent sinister property which could change normal people into moral perverts and criminals."38
The net result of the nation's enforcement policy was to tighten the antinarcotics consensus. The nonmedical use of opiates and cocaine was washed completely of the mystical qualities formerly associated with opium-smoking. By 1925 the medical problem had receded in the wake of the regulatory legislation and narcotics use was tied entirely to crime and slothfulness; and users—whether dependent or not—were sent to jail for their indulgence.
The Harrison Act, as it was enforced against maintenance and street use, was undoubtedly a prohibition statute. Total implemen-tation of the prohibitory scheme, however, depended on residual state legislation since the federal government had neither the manpower nor the constitutional authority to fight street crime. The states responded without hesitation to the federal lead. Before 1914 only six states had prohibited mere possession of regulated (not including smoking opium) drugs by unauthorized persons (five of these laws pertained only to cocaine). However, by 1931 thirty-six had prohibited possession of cocaine, thirty-five had prohibited possession of opiates, and eight had prohibited posses-sion of hypodermic syringes. A particularly significant feature of the state response to the Harrison Act was a sharp increase in criminal penalties which occurred between 1914 and 1931.39
Before leaving the antinarcotics developments, we should note that the Prohibition Unit was anxious to have a possession offense as well. Direct prohibition was of course beyond congressional power,and the Harrison Act had made possession of narcotics out-side the stamped package presumptive evidence of violation f the revenue and registration provisions. In 1916 the Supreme Court noted that any congressional attempt to punish as a crime posses-sion of any article produced in a state would probably be uncon-stitutional, and therefore held that the provision did not apply to mere possession of opium.4° Six years later Congress found a way around this technicality as part of a new Narcotic Drugs Import and Export Act which tightened the Harrison Act's regulatory scheme»
The 1922 act authorized the Federal Narcotics Control Board to determine how much opium, cocaine, and their derivatives were necessary for medical purposes and to set quotas accordingly as to amounts which could be imported to fill this need. Under Section 2f of this act, possession without a prescription was made pre-sumptive evidence of concealment of drugs illegally imported in violation of the act. In other words, by tying possession for non-medical purposes to importation, Congress got around the Supreme Court, and made possession a federal crime again.
Thus, within fifteen years after passage of the Harrison Act, American narcotics public policy had made a full turn. The likeli-hood of accidental addiction having been minimized, the image of the "dope fiend"—the immoral "street" user—now lay at the center of policy-making. What had been formerly viewed as an unfortu-nate sickness with organic causes was now viewed as yet another immoral behavior of the criminal class. The medical profession, never much interested in treating opiate dependence in the first place, had been intimidated and finally ousted from the addict's life; and now, deprived of any legitimate source of naxcotic drugs, the user's entire lifestyle was criminalized—from possession of his needle and his drug to the thievery in which he had to engage to sustain his habit.
National Alcohol Prohibition: Conflict
There were many major differences between the temperance and antinarcotics movements. The temperance movement was a matter of vigorous public debate; the antinarcotics movement was not. Temperance legislation was the product of a highly organized nationwide lobby; narcotics legislation was largely ad hoc. The ultimate aim of the temperance movement was always clear—to eliminate consumption of alcohol; the aim of the antinarcotics movement, which was directed at two separate phenomena (phar-maceutical manufacturing and street use), was always ambiguous until a vociferous enforcement policy established a highly restric-tive policy. Finally, alcohol prohibition never made criminals of consumers of the drug, while narcotics prohibition insinuated the criminal law into every aspect of the narcotic user's lifestyle.
On the other hand, there were striking similarities between the two movements. In both, legislative action was initially secured against the evils of unlimited availability, and only later against all use. Most of the rhetoric was the same: these drugs menaced the young and produced crime, pauperism, and insanity. Both move-ments began at the state level and later secured significant congres-sional action. Most important, both had dual dimensions: moralistic and nativistic. But therein lies their most important difference as well. Narcotics prohibition arose out of a consensus morality and was directed toward the lifestyles of insulated minorities; the moral imperatives of alcohol prohibition, on the other hand, never achieved wholesale acceptance, and the lower class, immigrant populations at which it was aimed were not outside the political process.
Alcohol prohibition, achieved nationally five years after passage of the Harrison Act, had a puzzling ideological flavor. When the temperance movement surfaced in the early nineteenth century, it was dominated by moral considerations. Aggressive prohibition campaigns had been mounted in every state from 1851 to 1869, and again from 1880 to 1890. But in 1903 only Maine (1884), Kansas (1880), and North Dakota (1889) were completely dry states. Ernest Cherrington, chronicler par excellence of the pro-hibition movement, blamed the failure of the first thrust in part on the intervention of the slavery question, which diverted the moral fervor of the people from the temperance movement. The failure of the second campaign he attributed to the inability of the prohibition activists to compete politically with growing liquor interests that dominated state and local governments.
By 1906, however, the progress of the antisaloon arm of the temperance movement in local option contests and the prohibition of alcohol by the people of Oklahoma in a provision of their constitution (ratified upon admission to statehood) signaled a new crusade for state prohibitory legislation. The Oklahoma vote so "electrified the moral forces of other states" thaf by 1913 six additional states had enacted statewide prohibition, and half of the remaining states were contemplating action.
By November 1913, pressure was building. More than half the population and 71 percent of the area of the United States were under prohibitionary laws. Accordingly, the Fifteenth National Convention of the Anti-Saloon League of America unanimously endorsed immediate passage of national constitutional prohibition, whereupon the National Temperance Council was formed to com-bine forces of the various temperance organizations.42
This initial success reflected the continuing vitality in rural America of a fundamentalist opposition to the use of intoxicants which, nonetheless, engendered more guilt than observance. Mem-bers of Women's Christian Temperance Union, formed in 1874, and similar groups campaigned against the use of tobacco, alcohol, and coffee, and could count on the support of those members of the community who, although indulging occasionally themselves, were willing to concede the moral superiority of those who abstained.
Despite this substantial resurgence, however, the temperance movement would not have succeeded on the national level had it not drawn support from strains of the reform ideology and of the reformers themselves. In an article in Appleton's Magazine in 1908 the Reverend Charles F. Aked articulated the role of temperance in the reform movement: "We are spending our lives, many of us, in the effort to make the world a little better and brighter for those that shall come after us. . . . We want to open out life and liberty to all the sons of men. We want to make possible for all of life in the whole, the good and the beautiful .... and the common sale of intoxicating liquor renders our work a thousand times more difficult. . . ."43 Learning political tactics from their fellow refor-mers, and attracting many from among those who were horrified by the economic and social evils of excessive alcohol use, prohibi-tion advocates finally succeeded in legislating the temperance morality.
Indeed, many elements of the reform value system did coincide with the aims of the temperance movement. Excessive use of alcohol, like use of narcotic drugs, prevented the individual from playing an active and productive role in society. For this reason, such use contravened the basic reform prescription for individu'ality and productivity in economic affairs. Excessive use increased with the commercialization of the production and distribution of alcohol and with the expansion of saloons. As the muckrakers and sensa-tional journalists continued to point to the number of alcotiol "addicts" in America and to portray their lives as ones of destruc-tion and shame, more and more reformers were inclined to join the traditional fundamentalist temperance groups to press for a national alcohol prohibition. Public resentment against the corrupt-ing influence of the large liquor dealers in local politics, especially in the bigger cities, tended to focus public attention on removing this cancer from the body politic.
Finally, the institution that most strongly aroused public senti-ment against liquor traffic was the licensed saloon, the symbol of intemperance and corruption. Owned or controlled by the large brewers or wholesalers, centers of political activity, homes ot commercialized vice, the saloons were the bête noires of native American public opinion. Here the linkage of excessive consump-tion of alcohol with the other city vices and with the Irish and Italian immigrant population increased the inclination of many reformers to oppose alcohol.
Beneath these more or less concrete considerations, however, was a cultural conflict for which prohibition was a potent symbol. No longer so certain of the assimilationist capacity of the dominant native Anglo-Saxon culture, reform leaders now felt threatened by the continuing aggregation of immigrant throngs. Riding the wave of the prewar drive for "100 percent Americanism," the Drys "identified their crusade to regulate behavior with preservation of the American way of life."44 As Joseph Gusfield's Symbolic Crusade has so thoroughly demonstrated, native, Protestant, middle-class leaders, ideologically unopposed to moderate consumption of alcohol, joined the prohibitionist crusade to assert the continued supériority of their way of life.45
Adopted by the constitutionally required majority of both houses of Congress in December 1917, the Eighteenth Amendment was ratified by the thirty-sixth state on 16 January 1919 and be-came effective on 16 January 1920. The Eighteenth Amendment itself 'Prohibited manufacture, sale, and transportation of "intoxi-cating liquors . . . for beverage purposes" within the United States. Congress and the states were given concurrent authority to enforce the amendment. The sponsors of the implementing federal legisla-tion, the Volstead Act, were anxious to remedy the fact that the amendment did not prohibit possession, stating in the Senate re-port that "[u]nder a Constitutional Amendment which prohibits the manufacture of intoxicating liquor even for one's own use there can be no justification for permitting the possession of that which must be illegally manufactured or sold before it is pos-sessed."46
Accordingly, Section 3, Title II of the Volstead Act prohibited possession "except as otherwise authorized." This exception was made for "authorized possession" because the Senate thought it had to protect the property rights of persons possessing liquor that had been legally secured prior to passage of the act. Section 33 authorized the possession of such liquor so long as it was within a private dwelling for the personal consumption of the owner, his family, or his bona fide guests. Although Section 33 excepted personal use of lawfully acquired liquor from the operation of the act, it also placed the burden of proof on the possessor in any action to prove that any liquor he consumed was lawfully acquired, possessed, and used.
Despite the express intent of Congress in formulating Sections 3 and 33 to forbid the possession of intoxicating beverages altogether, the courts ultimately vitiated the attempt to forbid personal use by liberally construing "authorized possession."4
The judicial attempts to immunize the individual alcohol con-sumer from prosecution should be compared to the judicial reticence to curtail the scope of criminal control over the narcotics consumer. In cases construing the Volstead Act, the federal courts bent over backwards to limit its coverage, the net result being that neither possession nor purchase of alcohol was a federal crime.
At the state level, only five states (Georgia, Idaho, Indiana, Kansas, and Tennessee) prohibited possession of alcohol for personal use. The remaining states utilized every conceivable statutory device to assure that the law would not reach into the consumer's home. For example, ten states prohibited possession only if it was for purposes of sale, and three others prohibited possession only if it was in public. Of the other twenty-eight states, some expressly excluded possession of small amounts from the general "possession" offense, others permitted home brew, and still others excluded private dwellings from any enforcement activity, thereby immunizing personal consumption."
The prohibition experiment was doomed from the start. As the Wickersham Commission noted in 1931, the passage of the Eigh-teenth Amendment was attributable not to public opposition to the use of intoxicating beverages," although this was indeed the view of many of the leaders of the movement, but rather to public hostility to three related evils: excessive consumption, political corruption, and licensed saloons.5° Without a sincere moral com-mitment among a substantial majority of the population, enforce-ment of total abstinence under the Volstead Act was impossible.
It is apparent that antinarcotics legislation and alcohol prohibi-tion followed different political paths and, further, that their concurrent passage was purely coincidentaL Once opiate use became identified with otherwise immoral or unliked populations, prohi-bition was almost automatic; although consistent with the reform ideology of the period, such legislation required no ideological umbrella. Alcohol prohibition, on the other hand, was a misshapen child of social conflict never backed by a consensus; and the policy was never seriously implemented. Also consistent in part with re-form objectives, alcohol prohibition nevertheless defied ideological characterization.
Public Policy Patterns
On the surface, it would appear that a cohesive social response to psychoactive drug use emerged during the first two decades of the twentieth century. Judging only from the prohibitory governmen-tal response to narcotics and alcohol which had evolved by 1920, one might assume that American society had contracted a social allergy- to the consumption of psychoactive substances for non-medical purposes, and that no distinction was drawn between alcohol on the one hand and the opiates and cocaine on the other.
As we have suggested in the preceding pages, such an assumption would be erroneous. The alcohol and narcotics responses emerged independently of one another. The social situations were com-pletely different as was the eventual impact of the formal response on individual beliefs and behavior. Prohibitory alcohol legislation was incapable of altering ingrained habits of alcohol consumption or public opinion regarding the drug (and the cycle of prohibition and repeal may actually have been counterproductive by erasing the dangers of alcohol from the public memory). The cultural conflict which precipitated the Eighteenth Amendment continued unabated during its tenure, finally tipping in favor of the urban immigrant masses and therefore in favor of repeal.
The initial narcotics legislation, on the other hand, responded to a commonly accepted regulatory need but to no preexisting public attitude toward use of these particular substances. Public attitude was predisposed by the identity and characteristics of persons who chose to use these substances, and the formal policy-making re-sponse tended to affirm and harden these predispositions.
The formative impact of legislative action on public attitude is illustrated by the meaning of the term "narcotics." This term referred medically to those substances which dulled a person's senses and put him to sleep when taken in small doses, and stupe-fied him ("narcosis") and caused complete insensibility and perhaps death when taken in large doses.51 Frequently mentioned as examples were the opiates and the belladona group of drugs (datura, stramonium, hyosyamus). It appears that as the medical profession became aware of other psychoactive substances, they were immediately classified as narcotics if they could produce sleep like the opiates or hallucinations like the belladona group. The effect was that chloral hydrate, cannabis, and peyote were all defined as "narcotics." Conversely, there was some disagreement among the pharmacologists and medical lexicographers regarding whether alcohol was a "narcotic," even though it shared the depressant qualities of the opiates.52
The initial "narcotics" legislation clearly embodied the disap-proval of the medical and law enforcement communities of the nonmedical use of these potent, stupor-producing substances—the opiates. As use of these substances became inseparably identified with a criminal, immoral lifestyle, public disapproval emerged as well, hardening into antipathy; and since this antipathy extended to "narcotics," it extended automatically to the unfamiliar sub-stances to which the medical community (cannabis, chloral hydrate, peyote) or the law enforcement community (cocaine) referred as "narcotics." The narcotics image thus came to encompass addic-tion, lethargy, crime, insanity, and death. The term assumed a social meaning, one defined by the public policy bearing its name. If a drug appeared on the streets, it was presumed "habit-forming" and criminogenic and was therefore considered a "narcotic."
In this connection, then, we note that neither the antinarcotics nor alcohol responses manifested a societal opposition to the mere use of psychoactive substances for pleasure. The abstentionist strain in our culture, strongest in nineteenth-century rural America, never won majority acceptance, even during the prohibition tri-umph. The successful inclusion of alcohol prohibition in the United States Constitution is a testimonial to the depth of native concern about the sociopolitical consequences of urban distribution and consumption of alcohol rather than to the dominance of abstentionist sentiment. At the same time, the use of alcohol was deeply ingrained in the American culture, as Toqueville had noted almost a century earlier; and recent acceptance into that culture of multi-tudes of alcohol-drinking European immigrants had rooted the habit even deeper. Consequently, the new public policy required that a substantial number of people discard a habit which they considered innocuous.
Throughout the seventy-year history of prohibition agitation, its opponents argued—and its proponents admitted—that alcohol was used in moderation by the overwhelming number of its devotees. The predominance of moderate use, together with the lack of majority opposition to such use, forestalled nationwide prohibition for seven decades and sealed its fate even then. In regard to narcotics use, however, each of these elements was missing: the use of opiate drugs for pleasure was not an indigenous behavior; observers uniformly assumed that moderation was impos-sible, and that use and abuse were synonymous; and there was no population with access to the public opinion process which could have challenged the validity of that assumption.
A second important policy pattern manifested in this amor-phous legislative response is that private behavior is most likely to be criminalized if the population engaging in that behavior is already perceived as a criminal class. Until about 1915 the courts had insisted that there were constitutional restraints on the power of the government to coerce abstention (by prohibiting possession or consumption). In states which attempted to prohibit possession of alcohol, the courts generally held that such an enactment was beyond the state's "police power"—its power to regulate and protect the public health, safety, and morals.
At the same time, the courts were upholding prohibition of possession of opium, having accepted the narcotics imprint. For example, a California judge asserted in 1911: "But liquor is used daily in this and other countries as a beverage, moderately and without harm, by countless thousands ...; whereas it appears there is no such thing as moderation in the use of opium. Once the habit is formed the desire for it is insatiable, and its use is invariably disastrous."53
When the temperance movement accelerated around 1913-15, however, the courts retreated and withdrew the constitutional restraints on the police power. Naturally, the movement's oppo-nents were outraged and accused the courts of interpreting consti-tutional precepts to correspond with public opinion.54 This indeed is what the courts did. As Brooks Adams noted in 1913, the scope of the "police power" could not be determined in advance by abstract reasoning.Hence, as each litigation arose, the judges could follow no rule but the rule of common sense, and the Police Power, translated into plain English, presently came to signify whatever, at the moment, the judges happened to think reasonable. Consequently, they began guessing at the drift of public opinion, as it percolated to them through the medium of their education and pre-judices. Sometimes they guessed right and sometimes wrong, and when they guessed wrong, they were cast aside, as appeared dramatically enough in the Temperance agitation.55
Even when the courts moved aside, however, most legislatures did not intrude the criminal law into the private life of the alcohol consumer. Even if the constitutional limitations had disappeared, the practical social limitations inhibiting enforcement of such laws remained. Yet these same legislatures were simultaneously impos-ing severe criminal restraints on the life of a narcotics user. And while the courts were imposing additional obstacles on full enforce-ment of the alcohol laws against the consumer, they were simul-taneously aiding legislative efforts to apprehend and punish that immoral, vicious population of narcotics users.
The third policy pattern suggested by the history of alcohol and narcotics prohibition is that the likelihood of prohibitory drug legislation is increased when the drug is identified with ethnic minorities. Whether motivated by an ideological preference for cultural homogeneity or by outright prejudice, drug legislation may be aimed at the lifestyle of the users rather than at use of the drug. Users of opium were often Chinese; street users of cocaine, and later heroin as well, were often perceived as black and West Indian; intemperate users of alcohol were often Irish, Italian, and German; and later we shall see that users of marihuana were often Mexican and users of peyote were often American Indian.
A related pattern is that drug use or other minority behavior is more likely to be viewed with anxiety (and to be indicted as a "menace') in times of social malaise than in times of social stability and optimism. When the dominant social order is thought to be threatened—by economic woes, by internal disruption of lawless-ness, or by external aggression—policy-making is likely to be defensive, lashing out at behavior perceived to be associated with the general societal fears.
Notes
1. H. W. Lee, How Dry We Were: Prohibition Revisited (Englewood Cliffs, N. J.: Prentice-Hall, 1963), p. 16.
2. The tobacco information in this chapter was drawn from J. L. McGrew, "History of Tobacco Regulation," Marihuana: A Signal of Misunderstanding, First Report of the National Commission on Marihuana and Drug Abuse, Appendix (Washington, D.C.: GPO, 1972), 1, 513-30.
3. J. E. Brooks, The Mighty Leaf: Tobacco Through the Centuries (Boston: Little, Brown, 1952), pp. 215-16.
308 Notes
4. See generally D. Musto, The American Disease: Origins of Narcotic Control (New Haven: Yale Univ. Press, 1973); D. W. Maurer and V. H. Vogel, Narcotics and Narcotic Addiction (Springfield, M.: Thomas, 1954); C. Terry and M. Pellens, The Opium Problem (New York: Prentice-Hall, 1928), p. 66.
5. Terry and Pellens, p. 69.
6. Stanley, "Morphinism," Journal of Criminal Law and Criminology, 6 (1915), 588.
7. See the resolution of the Narcotics Control Association of California calling for stricter laws regulating prescriptions and prescription order forms (journal of Criminal Law and Criminology, 13 [1922], 126-27).
8. Brill, "Recurrent Patterns in the History of Drug Dependence and Some Interpretations," in Drugs and Youth, ed. J. R. Wittenborn (Springfield, M.: Thomas, 1969), p. 18.
9. Terry and Pellens, pp. 76-82.
10. S. H. Adams, The Great American Fraud (Chicago: Press of American Medical Association, 1907).
11. The earliest surveys of drug use employed a methodology much less sophisticated than those conducted after 1914. The later studies, however, suffer from a time lag and from several built-in biases. Taken together, these surveys adequately describe the contours of the phenomenon under consideration. The earliest attempt at a compilation of addiction figures was undertaken by Marshall, "The Opium Habit in /Viichigan," Michigan State Board of Health Annotated Reports (1878), pp. 61-73. From questionnaires sent to doctors, Marshall found 1,313 users of opium or morphine and concluded that there were some 7,763 addicts in the state. Dr. Charles Terry later concluded that if Marshall's figures were representative, total incidence of addiction in the United States in 1878 was 251,936 (Terry and Pellens, p. 15). Marshall was unable fully to take into account the fact that the incidence of opiate use was much higher in the cities than in the rural areas he studied; accordingly, his figures might have under-estimated the extent of addiction in the state.
In a similar study of Iowa in 1884, J. M. Hull found 5,732 addicts which, if representative, would reflect a national addict population of 182,215 (Hull, "The Opium Habit," Iowa State Board of Health Biennial Report (1885], pp. 535-45, quoted in Terry and Pellens, pp. 16-18).
In 1900 the author of a Vermont study sent 130 questionnaires to various druggists in an attempt to determine the monthly sales of various drugs. His 116 replies indicate that 3,300,000 doses of opium were sold every month, or enough for every person in Vermont over the age of twenty-one to receive 1 1/2 doses per day (Grinnell, "A Review of Drug Consumption and Alcohol as Found in Proprietary Medicine," Medico-Legal Journal, 23 (1905], 426, quoted in Terry and Pellens, p. 25). A researcher in 1915 found 2,370 registered addicts in Tennessee and put the national addict population at between 269,000 and 291,670 (Brown, "Enforcement of the Tennessee Anti-Narcotic Laws," American Journal of Public Health, 5 (1915], 323-33, quoted in Terry and Pellens, pp. 27-29).
The first post-Harrison Act study, and perhaps the most reliable of all research during this period, was done by Lawrence Kolb and A. G. Dumez of the United States Public Health Service. Utilizing previously computed statistics together with information regarding the supply of narcotics imported into the United States, these authors con-cluded the addict population never exceeded 246,000 (Kolb and Dumez, "The Prevalence and Trend of Drug Addiction in the United States and Factors Influencing It,"Public Health Reports, May 1924).
At the same time the Narcotic Division of the Prohibition Unit of the IRS estimated that there were more than 500,000 drug addicts in America (Narcotic Division of the Prohibition Unit, Bureau of Internal Revenue, Release, 4 May 1924, quoted in Terry and PeHens, p. 42, n. 25).
For more recent estimates of drug addiction in America, see W. B. Eldridge, Narcotics and the Law, 2d rev. ed. (Chicago: Univ. of Chicago Press, 1967), pp. 49-103; A. Lindesmith, The Addict and the Law (Bloomington: Indiana Univ. Press, 1965), pp. 95-134; Drug Abuse and Law Enforcement (Cambridge, Mass.: Arthur D. Little, 1967); M. Nyswander, The Drug Addict as a Patient (New York: Grune & Stratton, 1956), pp. 1-13.
With regard to the gender of opiate users at the turn of the century, 803 of the 1,313 addicts in Marshall's Michigan study were females and only 510 were males (Terry and Peliens, p. 11). In the Florida study, 228 were men and 313 women (ibid., p. 25). Of the 2,370 registered addicts in the Tennessee study, 784 were men and 1,586 were women (ibid., p. 27). A modern observer has concluded that there were at least as many and probably twice as many women addicts as men during this period. O'Donnell, "Patterns of Drug Abuse and Their Social Consequences," in Drugs and Youth, p. 64. For the last thirty years, male addicts have probably outnumbered female addicts by four or five to one (ibid).
Of the 228 men included in the Florida study, 188 were white and 40 black; of the women 219 were white and 94 black. At that time the white and black populations in Jacksonville were equal. Of those covered in the Tennessee study, 90 percent were white (Terry and Pellens, pp. 25, 28).
With regard to class, see Eberle, "Report of Committee on Acquirement of Drug Habits," American Journal of Pharmacy, Oct. 1903. "While the increase is most evident with the lower classes, the statistics of institutes devoted to the cure of habitués show that their patients are principally drawn from those in the higher walks of life" (ibid., quoted in Terry and Peliens, p. 23).
12. H. Kane, Opium-Smoking in America and China (New York: Scribner's, 1882), quoted in Terry and Pellens, p. 73.
13. For general information on Progressivism and on the intellectual climate of the early twentieth century, see M. Curti, The Growth of American Thought, 2d ed. (New York: Harper 8c Row, 1951), pp. 555-716; G. Mowry, The Era of Theodore Roosevelt (New York: Harper 8c Row, 1958); L. Hartz, The Liberal Tradition in America (New York: Harcourt, 1955), pp. 288-355; A. Link, Woodrow Wilson and the Progressive Era (New York: Harper Sc Row, 1954); H. May, The End of American Innocence (New York: Knopf, 1959); R. Hofstadter, The Age of Reform (New York: Knopf, 1955).
14. Quoted in Curti, p. 233.
15. J. Higham, Strangers in the Land: Patterns of American Nativism, 1860-1925 (New Brunswick: Rutgers Univ. Press, 1955).
16. The "Philadelphia Press," in Public Opinion, 5 (1888), 432, quoted in Higham, p. 63.
17. Edward A. Ross, quoted in Higham, p. 110.
18. U.S., Treasury Department, State Laws Relating to the Control of Narcotic Drugs and the Treatment of Drug Addiction (Washington, D.C.: GPO, 1931), hereafter cited as State Laws (1931). The first drug legislation enacted in eight states outlawed the administering of a narcotic drug to any person with the intent to facilitate the com-mission of a felony. These states were California (1872), Idaho (1887), New York (1897), North Dakota (1883), Pennsylvania (1901), South Dakota (1883), Utali (1876) and Wisconsin (1901) (ibid., pp. 1-2). Twenty-two states made education legislation their first laws concerning the drug problem (ibid., p. 2).
19. See Wilbert and Motter, Digest of Laws and Regulations in Force in the United States Relating to the Possession, Use, Sale, and Manufacture of Poisons and Habit-Forming Drugs, U.S., Treasury Department, Public Health Bulletin no. 56 (Washington, D.C.: GPO, 1912), hereafter cited as State Laws (1912). States which prohibited the operation of or presence in an opium "den" or joint were: Alaska, Arizona, Connecticut, Idaho, Iowa, Minnesota, Missouri, Montana, New Mexico, New York, North Dakota, Ohio, Pennsylvania, South Dakota, Utah, and Wyoming. In addition, New Jersey em-powered its city councils to take similar action. Four states, all in the West, prohibited the possession or smoking of opium or the possession of opium pipes: California, Nevada, South Dakota, and Washington. See also State Laws (1931), pt. 3.
20. Ex parte Yung Jon, 28 F. 308 (D. Ore. 1886) at 312.
21. See generally Musto, The American Disease.
22. Terry and Pellens, pp. 84-87.
23. Stanley, "Morphinism."
24. See generally Musto, pp. 91-120; Eldridge, Narcotics and the Law, pp. 5-6.
25. State Laws (1912), pp. 34-41.
26. Ch. 3915, 34 Stat. 768 (1906). See Terry and Pellens, p. 75.
27. U.S., Congress, House, Committee on Ways and Means, Hearings on the Importation and Use of Opium, 61st Cong., 2d sess., 1910.
28. 38 Stat. 785 (1914), as amended, 26 U.S.C. §§ 4701-36 (1964). For an. excellent analysis of the genesis of the Harrison Act, see Musto, pp. 54-69.
29. See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918).
30. Linder v. United States, 268 U.S. 5, 18 (1925).
31. United States v. Doremus, 249 U.S. 86 (1919). The four dissenters asserted that "the statute was a mere attempt by Congress to exert a power not delegated, that is, the reserved police power of the States" (ibid., at 95). It is interesting to note in contrast that a subsequent congressional attempt to regulate child labor through the taxing'power was invalidated in Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922).
32. As Musto has pointed out in The American Disease, prevailing opinion among policy makers tended to oppose the dispensing of narcotics to habitués or addicts. Habitual use was to be avoided, and when it occurred, it was to be terminated. As of 1912, for example, ten states prohibited the dispensing of narcotic drugs to habitual users (State Laws [19121, pp. 34-41).
33. U.S., Congress, House, 63rd Cong., 1st sess., 1913, H. Rept. 23, p..2.
34. Compare Musto, The American Disease, with R. King, The Drug Hang-Up: America's Fifty-Year Folly (New York: Norton, 1972), pp. 15-68.
35. Although contemporary estimates of the size of the addict population varied widely, most researchers have concluded that the total probably never exceeded 250,000. See n. 11 and sources cited in Musto.
36. In fact, one government report estimated in 1918 that 240,000 addicts were under the direct care of physicians (Terry and PeBens, pp. 68f.; U.S. Department of Treasury, Special Committee of Investigation, The Traffic in Narcotic Drugs [Washington, D.C.: GPO, 19191, p. 3).
37. R. King, "Narcotic Drug Laws and Enforcement Policies," Law and Con-temporary Problems, 22 (1957), 113, 124-26; King, "The Narcotics Bureau and the Harrison Act," Yale Law Journal, 62 (1953), 736; Note, "Narcotics Regulation," Yale Law Journal, 62 (1953), 751, 784-87.
38. Kolb, "Factors That Have Influenced the Management and Treatment of Drug Addicts," in Narcotic Drug Addiction Problems, ed. R. Livingston (Washington, D.C.: GPO, 1963), pp. 23, 26.
39. Compare State Laws (1931) with State Laws (1912).
40. United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916).
41. Pub. L. no. 227, 67th Gong. (26 May 1922).
42. E. Cherrington, The Evolution of Prohibition in the United States of America (Waterville, Ohio: The American Issue Press, 1920), pp. 80-81, 135-45, 176-84, 280-84, 320; Safely, "Growth of State Power Under Federal Constitution to Regulate Traffic in Intoxicating Liquors," Iowa Law Bulletin, 3 (1917), 221-22.
43. J. H. Timberlake, Prohibition and the Progressive Movement (Cambridge: Harvard Univ. Press, 1963), pp. 34-38.
44. Higham, p. 263.
45. J. P. Gusfield, Symbolic Crusade (Urbana: Univ. of Illinois Press, 1963).
46. U.S., Congress, Senate, 66th Cong., 1st sess., 18 Aug. 1919, S. Rept. 151.
47. See Sheet v. Lincoln Safe Deposit Company, 254 U.S. 88 (1920); United States v. Cleveland, 282 F. 249 (1922); Shoemaker's Petition, 9 F.2d 170 (1925).
48. A. Corcoran, "Possession Under the State Prohibition Laws," Marihuana: A Signal of Misunderstanding, Appendix (Washington, D.C.: GPO, 1972), II, 1185-97.
49. In 1904 Ernst Freund, quoting from an article on "personal liberty" in the Cyclopedia of Temperance and Prohibition, noted: "Even the advocates of prohibition concede that the state has no concern with the private use of liquor. 'The opponents of prohibition misstate the case by saying that the state has no right to declare what a man shall eat or drink. The state does not venture to make any such declaration.... it is not the Ovate appetite or home customs of the citizen that the state undertakes to manage, but the liquor traffic.... If by abolishing the saloon the state makes it difficult for men to gratify their private appetites, there is no just reason for complaine" (E. Freund, The Police Power, Public Policy and Constitutional Rights [Chicago: Callaghan, 19041, p. 484).
50. National Commission on Law Observance and Enforcement (Wickersham Commission), Report on the Enforcement of the Prohibition Laws of the United States, report no. 2 (1931; reprint ed., Montclair, N.J.: Patterson Smith, 1968), pp. 6-7.
51. A New English Dictionary on Historical Principles, 6 vols., ed. J. A. H. Murray (Oxford: Clarendon, 1908); The National Medical Dictionary, 2 vols., ed. J. S. Billings (Philadelphia Lea Bros., 1890); Dictionaire De Medescine, ed. P. H. Nysten (New York: Ballienre et Fils, 1858); The Century Dictionary, ed. W. D. Whitney (New York: Century, 1897); Lexicon of Medicine and the Allied Sciences, 4 vols., ed. H. Power and L. W. Sedgwick (London: The New Sydenham Society, 1892).
52. Compare Lexicon of Medicine and the Allied Sciences with The Century Dictionary.
53. Ex parte Yun Quong, 159 Cal. 508, 514, 114 P. 835, 838 (1911) quoting lower court opinion; citations omitted).
54. E.g., Bronaugh, "Limiting or Prohibiting the Possession of Intoxicating Liquors for Personal Use," Law Notes, 23 (1919), 67; Rogers, "Life, Liberty & Liquor: A Note on the Police Power," Virginia Law Review, 6 (1919), 156; Safely, "Growth of State Power," 221; Vance, "The Road to Confiscation," Yale Law Journal, 25 (1916), 285.
55. B. Adams, The Theory of Social Revolutions (New York: Macmillan, 1913), p. 94.
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