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Cannabis and the Constitution: A Brief History of Cannabis in the US

September 16, 2016
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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.

Related

The Origin of the Word ‘Marijuana’

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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It’s Time to Treat Medical Cannabis Like Medicine

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.

Related

How Mexican ‘Herbolarias’ Transformed Hemp into Psychoactive Marijuana

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.

Lisa Rough's Bio Image

Lisa Rough

Lisa is a former associate editor at Leafly, where she specialized in legislative cannabis policy and industry topics.

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  • lovingc

    Here’s an extract from “Notes on Democracy” by Henry Louis Mencken, written in 1926, during Federal Alcohol Prohibition (1919-1933)

    The Prohibitionists, when they foisted their brummagem cure-all upon the country under cover of the war hysteria, gave out that their advocacy of it was based upon a Christian yearning to abate drunkenness, and so abolish crime, poverty and disease. They preached a [crime, poverty and disease free] millennium, and no doubt convinced hundreds of thousands of naive and sentimental persons, not themselves Puritans, nor even democrats.

    That millennium, as everyone knows, has failed to come in. Not only are crime, poverty and disease undiminished, but drunkenness itself, if the police statistics are to be believed, has greatly increased. The land rocks with the scandal. Prohibition has made the use of alcohol devilish and even fashionable, and so vastly augmented the number of users. The young of both sexes, mainly innocent of the cup under license, now take to it almost unanimously.

    In brief, Prohibition has not only failed to work the benefits that its proponents promised in 1917; it has brought in so many new evils that even the mob has turned against it. But do the Prohibitionists admit the fact frankly, and repudiate their original nonsense? They do not. On the contrary, they keep on demanding more and worse enforcement statutes — that is to say, more and worse devices for harassing and persecuting their opponents.

    The more obvious the failure becomes, the more shamelessly they exhibit their genuine motives. In plain words, what moves them is the psychological aberration called sadism. They lust to inflict inconvenience, discomfort, and whenever possible, disgrace upon the persons they hate, which is to say: upon everyone who is free from their barbarous theological superstitions, and is having a better time in the world than they are.

    They cannot stop the use of alcohol, nor even appreciably diminish it, but they can badger and annoy everyone who seeks to use it decently, and they can fill the jails with men taken for purely artificial offences, and they can get satisfaction thereby for the Puritan yearning to browbeat and injure, to torture and terrorize, to punish and humiliate all who show any sign of being happy. And all this they can do with a safe line of policemen and judges in front of them; always they can do it without personal risk.
    Replace alcohol with cannabis and you will see we are in the same place now 90 years later. Legalize!

  • It’s business, finally

  • bcainw

    The War on Cannabis will never end until home growers can sell their overage without police/government interference. After 70 years of persecuting us they don’t deserve a dime in revenue. Just saying.

    https://www.facebook.com/notes/bruce-cain/hash-bash-2017-the-great-cannabis-betrayal-continues/1808553619170618