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War on Junk, Chris Largen

A History of U.S. Drug Laws

- or -

How did we get into this mess?

Part 1: 1898-1933

by Bob Ramsey
email:  b.rmz@verizon.net


In writing on such an enormous topic, it is necessary to scope the job by stating underlying assumptions very briefly: I believe it is impossible to enforce a law that attempts to control any private behavior in which a significant portion of the population chooses to participate. I don't plan to discuss the reasons why this is so, but to describe how each failed attempt to enforce Prohibition laws has led to further erosion of individual liberties. The bottom line is that, for over eighty years we have been attempting to give an ever-expanding number of police agencies enough power to do the impossible, and we have come dangerously close to destroying America in the process.

I will describe a historical thread of U.S. government attempts to improve society by controlling the inside of people's bodies. Trying (or pretending to try) to extinguish a market for certain agricultural products has created counterbalancing incentives for criminal activity in both the private sector and government. Each failure to achieve the stated goal of national purity has fueled cries for more intrusive government power. Hopefully certain facts presented here will interact with others you already know, and will inspire ideas to begin reversing some very alarming trends.

Where to begin?

The first federal law that regulated consumable products was the Pure Food and Drugs Act of 1906. But really the first time Congress became involved in drug laws was after the ten-week Spanish-American War in April - July of 1898. For the first time, Congress was responsible for a colonial empire that included the Philippines. Instead of being mere servants of a self-sufficient American people, Congress suddenly became the paternal masters of millions of "ignorant savages" who were virtual wards of the state.[1]

And also for the first time, Congress was forced to deal with drug policy. The former Spanish government of the Philippines had a drug policy, and obviously the U.S. had to do either the same thing or something else. And the Spanish drug policy in the Philippines was this: the government controlled the sale of all opium, and you were only allowed to buy opium if you were Chinese. The Americans initially ignored this curious situation, but the Filipinos rebelled in February 1899, causing us to take this colonialism thing more seriously. Few Americans know that there was a 28-month Philippine war involving 50,000 U.S. troops, who killed 200,000 to 600,000 people before we convinced the Filipinos we were their best friends.[2]

The McKinley administration sent the Republican Party's rising star, Howard Taft, to the Philippines to straighten out the mess. Taft was an energetic and able administrator who established civil rule and began economic development. His experience in tackling public problems both in the Philippines and as President from 1909-13 is of special interest, since he later became Chief Justice of the Supreme Court from 1921-30, which means he served through most of Alcohol Prohibition.

One of Taft's many initiatives was to establish a commission in 1902 to study what to do about the opium policy inherited from the Spanish.[3]  The commission's leader was Reverend Charles Henry Brent, who had been serving as Assistant Pastor of a small Episcopal church in Boston before volunteering to be a missionary in the new U.S. possession. Brent was soon named Episcopal Bishop of the Philippines and ministered to its newly appointed American rulers. He thus became one of the first Americans in this century to discover that government expansion creates exciting career advancement opportunities. Brent studied the situation and came up with a plan to continue the Spanish policy, except with a three year phase-out period to wean the Chinese of their habit humanely. But when Taft asked Congress to pass a law implementing this, reformers heard about it. They were outraged that the US government would promote this horrible habit in a helpless population, and insisted on immediate total opium prohibition.

In trying to stop opium imports, Brent learned that most of the opium came from Hong Kong, some 3 or 4 hundred miles away, and quickly surmised that opium traffic was international and could only be addressed internationally. So he began advocating an international conference on opium, which won acceptance largely because other nations (such as the U.S.) wanted to break British dominance of trade with China.

A small international commission met in Shanghai in 1909, attended by the countries most active in Far East trade. It settled little, but gave reformers a picture of each participant's motives. The British and Dutch were making money, the French didn't care. Indeed the British stated that opium smoking was the Chinese equivalent of drinking liquor or beer, and they had no problem with it. The Chinese wanted to show they were not to be taken lightly, and the Americans were seeking their place as an international power. A larger convention was scheduled in the Netherlands at The Hague for 1910, and was to include all the major world powers. But many nations like Italy, Turkey, Germany and Switzerland dragged their feet, and the next conference was delayed.

Assumptions in the early 1900s

Before moving on to the 'teens, I'd like to give some flavor of the underlying assumptions at the time. Things have changed so much since 1900 that today it is difficult to comprehend what a free market used to be like. In those days a uniformed federal agent might bring heroin to your door that you had ordered from Sears Roebuck... along with the rest of your mail.

And the wording of the Food and Drugs Act of 1906 is very telling. Its intent was to "assure the customer of the identity of the product purchased, not of its usefulness." The law literally stated "not of its usefulness." In those days Congress didn't consider its place was to judge for the American people what was useful or not. It was a major step just to try and help the people make informed decisions.

The law called a product "misbranded," "if the package fails to bear a statement of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis, chloral hydrate, or acetanilide."

It is implicit in this sentence that, back then, Congress took for granted the legality of a free market in all drugs.[4]

One point I'd like to discuss before moving on is what percent of the population uses opiates regularly. At the time the Food and Drugs Act was passed, it was estimated that 3-5 percent of the adult U.S. population used opiates regularly, mostly in patent medicines whose contents were a trade secret. When people were informed as to the contents of their favorite remedies, many people quit using them. The percent of Americans using opiates habitually fell to somewhere around one percent, virtually the same as it is today when you include users of both illegal and medically prescribed opiates. And this was in a climate where just about everybody had some kind of opium preparation in their medicine cabinet and used it at least occasionally for headaches or diarrhea... and must have known what an opium high felt like.

And I should mention cocaine. The Spanish Conquistadors found the Peruvian natives chewing coca leaves when they arrived around 1530. The Spanish encouraged the practice since it seemed to make the Indians work longer in the silver mines with less food.

Refined cocaine first became generally available in the early 1880's. At first it was greeted with great enthusiasm. Pure and cheap, it was at often given to workers in Southern cotton fields to increase productivity. A Pope and a US president endorsed coca products. The original 6 1/2 ounce bottles of Coca-Cola had about one grain of cocaine in them, which is about a sixteenth of a gram. An aspirin tablet is 5 grains.

Sigmund Freud is well known for his enthusiastic writings about the benefits of coca use[5], but within two years decided it was better left alone. By 1905 it was considered to be a social problem. The stuff seems to make people feel 'worthy.' One New York politician complained "It makes working men feel like millionaires, which they're not!" Especially alarming to Southerners was that it seemed to make a Black man feel just as good as a White man. When Southern politicians instinctively objected to federal drug legislation on State's Rights grounds, they were quickly brought around by sensational stories about cocainized Negroes raping White women.[6]

Transition time - 1913-1920

I need to take a deep breath before trying to make sense of the 19-teens. I mentioned the US's new role as a colonial and world power made Americans think of themselves more as a nation than a collection of states. An example of the new National thinking came in 1911, when a certain War-of-1898 Naval-hero-turned-Congressman named Richmond P. Hobson whipped up enthusiasm among the Anti-Saloon League for National Alcohol Prohibition via a Constitutional Amendment.[7]  Up to that time Prohibitionists had been working a state at a time, and sometimes states repealed liquor laws the ASL had worked very hard on. And it drove them nuts that anyone could order liquor from out-of-state through the U.S. Mail or the Railway Express Agency. A constitutional amendment was very appealing. It would cover the whole country at once, and no mere majority of Satan's disciples could repeal it.

In 1913, our form of government was changed fundamentally in at least three ways, all of which were centralizing influences: We instituted a central bank called the Federal Reserve. We changed the mode of electing Senators. Formerly Senators were elected by a State's legislature, and loss of this power eliminated federal accountability to State governments, making legislatures less relevant. And then there's the big one, something the original Constitution had specifically forbidden: the Income Tax.

The income tax did many things, but one of its immediate effects was to break the power of the liquor industry. Over the years, liquor taxes had provided as much as half of all federal revenues. Now the government could do without it. Now Congress could afford morality. And since income tax would bring in all the money they would ever need, it now became practical to enact a tax law that didn't bring in revenue.

Do you remember that international Opium conference that didn't happen in 1910? Well, the Americans kept pressing the issue, and Hague conventions on opium were held in 1911, 1913, and 1914, slowly making progress toward a treaty whereby signatories would "endeavor" to control their own traffic in opium and cocaine. Delegates from 44 nations signed the treaty, which would take effect when ratified back home, supposedly by the end of December.[8]  Few nations ratified it however, because three days after the convention adjourned in June of 1914, Archduke Ferdinand was assassinated in Sarajevo, kicking off World War One.

But the US didn't enter the war for over 2 1/2 years. Alcohol was the big issue. Narcotics was an afterthought. In May of 1914, the House of Representatives scheduled a debate on a Constitutional amendment prohibiting alcohol for the following December, seven months away.

The December 22nd, 1914 alcohol debate may not have been the social event of the season, but it was close. The House was almost evenly divided for and against, as were both parties. Everyone knew the amendment wouldn't pass because a 2/3 majority is required. Both sides allotted tickets to the house gallery, which was jammed and very noisy. Attendees draped the chamber with banners like at a football game. The Women's Christian Temperance Union and the Anti-Saloon League marched down Pennsylvania Avenue to the House Chamber carrying a petition with six million signatures and piled it on the Speaker's desk. The debate lasted 13 and 1/2 hours, and fills 125 pages of fine print in the Congressional Record.[9]  All the good and bad arguments for and against prohibition are in there, and they are well-stated, as you might expect when seasoned debaters have 7 months to prepare.

Now compare this with the vote 8 days earlier on the Harrison Narcotic Law. It passed by voice vote after announcement that the committee had referred it favorably as a fulfillment of treaty obligations. At the time it was considered a record-keeping act, not a prohibition law. It took the form of a nominal tax, supposedly generating enough revenue to administer it, on commerce in the specified drugs, with detailed record-keeping. Its passage didn't even make the newspapers. The New York Times first mentioned the law in a legislative summary three weeks later.

But the Treasury Department seems to have thought it was a prohibition law. I don't know when they started arresting people, but they must have jumped on it like a chicken on a June bug. The law took effect on March 1st, 1915, and the first court judgment was handed down in May. The US District judge in Pittsburgh held the prosecution of addicts invalid,[10] saying an addict was not required to register under the law, so he could hardly be held to possess narcotics illegally.  Another case in Memphis found it was acceptable to prescribe unlimited quantities of narcotics as long as the required records were kept.[11]  The Supreme Court virtually struck down the law in June 1916, saying Congress certainly did not intend "to make the probably very large proportion of citizens who have some preparation of opium in their possession criminal."[12]

Treasury agents backed off begrudgingly for a time, until the nation entered the Great War the following spring, on April 6th, 1917.

In August of 1917, Congress passed a wartime act giving the President power to control all "necessaries" for national defense.[13]  This power was immediately used to shut off grain and sugar supplies to brewers and distillers, giving us de facto alcohol prohibition throughout the war. Now Congress was a roll, and sent a Prohibition amendment to the State Legislatures in December. The required 37 states ratified it in just over a year. The 18th Amendment was declared ratified on January 16th, 1919, to take effect in one year.

Anxious not to drive boozers to switch to narcotics, Congress modified the Harrison Act within days to close loopholes, and this time the Supreme Court agreed. Less than three years earlier, the court had said Congress could never have intended to make criminals out of any American who happened to possess some form of opium. Since it had just required a Constitutional amendment to ban alcohol, you might imagine the court would tell Congress to go get another amendment if it wanted to ban something else. But now it gave the opium user short shrift in handing down twin 5-4 decisions on March 3rd, 1919.[14]  First the court answered a complaint out of Memphis that the tax was not really a tax but was a prohibition, which was unconstitutional. It was decided the Harrison Act was a tax, which was constitutional, even though it had other purposes than raising revenue. In the other case a doctor had been charged with prescribing opiates to an addict with no intention of curing him. The justices now said prescribing maintenance doses of morphine was "so plain a perversion of meaning that no discussion of the subject is required." Personally I find it curious that the court was split 5-4 when asserting that no discussion of some subject was required.

Alcohol Prohibition soon commanded the nation's attention, but I would like to close out discussion of this period of narcotic enforcement by describing the four-year transition from 1919-1923 when Americans lost the right to control their own medical treatment.

The revised Harrison law allowed physicians to prescribe narcotics "in the course of their professional practice only." For the first time, druggists could only dispense on a doctor's prescription. And Treasury agents immediately began harassing doctors who did not adhere to the Internal Revenue Bureau's strict definition of what constituted 'professional practice.' During this period in the early 20s, doctors were targeted for intimidation. About 200 doctors per year were convicted, and "charges were dropped" against about 30,000 more each year when they agreed to cooperate. I don't know how many doctors and pharmacists there were in the U.S. at the time. But when 177,000 of them were threatened with jail, the word got around.[15]

With the AMA leading the charge, doctors fought bitterly to preserve their freedom to treat patients as they thought best. The question was finally settled by a Supreme Court case about alcohol prescriptions. A group of New York doctors led by the Dean Emeritus of the College of Physicians and Surgeons of Columbia University[16] sued the government over the federal maximum prescription of medicinal alcohol, which was one pint in 10 days regardless of the ailment. The doctors claimed the rule was arbitrary, hence unconstitutional. The court ruled that the 1.6 ounce per day figure was based on a survey of doctors, hence not arbitrary. And it further declared that "the practice of medicine is always subject to the police power of the state." Here the word "state" referred to the federal government. After that, most doctors became compliant.

Thus in the ten year period from 1914-1924, Americans went from being in absolute command of their own medical treatment, with doctors and pharmacists among their options, to a situation where medical doctors controlled the people, and the federal government controlled the doctors.

I talk about drug laws a lot, and an acquaintance once casually told me a story about this period. His grandfather was a druggist in Ohio starting in the early 1900s. As the laws were tightened up in the late teens, he continued to provide maintenance doses of morphine to several upstanding townspeople who had been regular customers for many years. In those days a typical user might be a carpenter or blacksmith with back problems, or a woman who had developed complications during the average 8 pregnancies in those days. You know, someone like the pastor's wife... or your Mom. In 1923 the town's D.A. decided to make an example of this pharmacist. Apparently in those days a person's reputation was worth something, because... facing the loss of his reputation as well as his livelihood, this man told me his grandfather committed suicide the day before his trial was to begin.

And on that cheery note, we move on to alcohol prohibition.

Alcohol Prohibition - 1920-1933

Alcohol prohibition began with great expectations at midnight, January 16th, 1920. New York City's Park Avenue Hotel held an elaborate mock funeral for John Barleycorn with comical eulogies and painted-on tears. But elsewhere that Friday evening, in churches across the nation, people stayed up well past their bedtimes to celebrate their final victory in the struggle many of them had begun at their grandparents' side.[17]

Alcohol was scarce for a while, but entrepreneurs soon stepped up to the plate. Smuggling has come a long way since 1920. Americans were not used to sneaking around, and law enforcers had not learned to suspect them. One early smuggler was a cab driver who simply drove his clearly marked New York City taxicab 350 miles north to Canada, loaded up all the whiskey it could hold, and drove back to New York with cases of whiskey plainly visible through the windows.

But suppliers quickly became more sophisticated. George Remus was a criminal defense lawyer in Chicago who knew how to work the law.[18]  He moved to Cincinnati because of its proximity to established distilleries in Kentucky and Tennessee, and bought up most of America's best-known whiskey brands. Then he bribed officials to get "medical" permits to ship from his warehouses. Remus made 40 million dollars by the end of 1922, which is 700-800 million in current dollars... in 35 months, which is 35 in current months. His network of bribes included a half-million to the U.S. Attorney General. Once a detective in Cincinnati recorded him giving out bribe money to 44 public officials in one afternoon, but for some reason the District Attorney refused to indict.

Millions of people were violating the law discreetly. But hundreds of thousands of people were thumbing their noses at the law, which outraged those who had worked to create it. They demanded enforcement, and soon some serious enforcers came on the scene. One of them, New York's Izzy Einstein, might be considered the first undercover cop. He looked like a drunk, and loved disguises. With his partner Moe, he came up with a thousand ruses to get liquor, and personally made thousands of arrests. Then in 1925, during a "realignment" of Prohibition agents, he was laid off. Afterward he wrote a book called "Prohibition Agent No. 1"[19] which became a movie many years later.

With the law an embarrassing failure, law enforcers soon began crying out for stronger laws to accomplish their difficult task. And lots of them made very creative interpretations of existing laws in their attempts to keep up with bootleggers. The Supreme Court quickly became involved in Constitutionality issues. William Howard Taft had just been appointed Chief Justice by President Harding. Taft had been an opponent of the 18th, or Prohibition Amendment, but was committed to making it work. As the former Governor General of the Philippines, and as President, he understood the importance of having the tools to do the job.

In 1922, the court decided a case where the state of Washington had convicted a bootlegger; then Seattle's federal prosecutor convicted him again for the same acts.[20]  The court decided that since the Prohibition Amendment says "The Congress and the several states shall have concurrent power to enforce this article," obviously each is independent of the other. They found unanimously that this did not violate the Fifth Amendment's guarantee against double jeopardy. This is the legal concept by which the Los Angeles police who were acquitted of beating Rodney King while he was down... were retried for violating his civil rights by beating him while he was down.

A 1921 case dealing with searches worked its way to the Supreme Court in early 1925. Two federal agents in Michigan saw some guys driving by from whom they had previously, though unsuccessfully, tried to buy liquor. Without a warrant, they stopped and searched the car, and... lo and behold... they found 68 bottles of liquor.[21]  The justices found, 7-2, that the 4th Amendment only forbids "unreasonable" searches and seizures, and that these officers had acted reasonably.

This points out an important aspect of Prohibition violations, and consensual crimes in general. Before Prohibition, police fought the kind of crime where people would like to pay them for hanging around. Now they were trying to stop the kind of crime where people would like to pay them to stay away. Police had discovered that, when the supposed victim participates in the crime rather than calling the cops, the normal law enforcement process simply did not function. To have any chance of success, the definition of "reasonable" police action had to change drastically. Though the word did not exist at the time, police had to become "proactive." (Some say the word still doesn't exist.)

And the police became very proactive. Another landmark case also came out of Seattle in 1925. Roy Olmstead and 74 others were convicted of running a major operation smuggling Canadian liquor.[22]  The evidence was obtained by tapping their phones, which was against Washington State law. The defense complained the evidence was illegally obtained, and should be thrown out. Indeed, Prohibition agents did not deny they had knowingly broken the law hundreds of times over a period of months, even taking turns breaking the law in shifts. Though the Supreme Court Justices nearly came to blows over this one, by a five-to-four vote, the conviction was upheld.

All four dissenting justices contributed to the dissenting opinion. This happens to be the case that contains the Louis Brandeis quote Timothy McVeigh cited at his sentencing hearing. Since it's one of Brandeis' best-known quotes, and McVeigh didn't get it quite right, I'll repeat it here:

In a government of law, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

While we're talking Supreme Court cases, here's one other case that deserves mention. In 1932, a decision was handed down regarding an accused bootlegger from Eureka, California. James Dunne[23] was accused of possessing liquor, of selling liquor, and of possessing liquor for sale. He was acquitted of the first two charges, but found guilty of the third. His lawyers appealed, saying- wait a minute, the evidence is the same on all charges, how can he be not guilty of possession, not guilty of selling, but guilty of possession for sale?

Taft was gone. This was Justice Holmes' last case before retiring, and he delivered the 8-1 decision. The court decided that each count must be considered separately, and "Consistency in the verdict is not necessary."

Up to that time, it was unusual to bring multiple charges against a defendant. This decision gave prosecutors the green light to pile on as many charges as they could think of, in hopes something would stick. In the decades since, this has become a fine art. Last year I read of a case where some county official in South Texas was acquitted of bid-rigging charges. He allegedly had arranged $25,000 in bribes on several contracts with a total value of one million dollars. The newspaper said, "if convicted on all charges, he faced up to 570 years in prison and millions of dollars in fines." I wondered if he might possibly have gotten a couple of centuries off for good behavior.

The Repeal of Prohibition

Everybody knows Prohibition was repealed. Not many people know why or how, or even give it much thought. But the repeal of the 18th Amendment was a remarkable event. No other Constitutional amendment has come close to being repealed. Why did so many people change their minds?

There had always been a vocal minority who opposed Prohibition "for reasons other than their own thirst." The longest-running was the Association Against the Prohibition Amendment, or AAPA. It was formed a few weeks before the Amendment was ratified, by Captain William Stayton, a 58 year old lawyer, businessman and former Navy officer. He plugged along for several years, writing letters, printing brochures, and making speeches, with little effect. But events slowly added to the Repealers' ranks. Henry Joy, the president of Packard Motor Company, had been very active in the Anti-Saloon League. He lost enthusiasm for the Dry cause the second time Treasury agents came onto his property and broke down his elderly watchman's door to look for beer. He joined the repealers after a duck hunter in a small boat was killed near Joy's riverfront mansion. A federal agent on the shore hailed the hunter to stop and be searched for booze. The hunter's outboard motor prevented him from hearing, and he putted along oblivious to danger until the officer shot him dead with his rifle.[24]

Wealthy industrialists had worked for Prohibition expecting to profit from a sober workforce. But as Prohibition wore on, they found drunkenness increasing and bullets flying. By 1926, Captain Stayton found influential people asking what they could do to help. He reported meeting some "serious businessmen" in Detroit who nodded agreement when one of them said the following:

"The people are not very much interested in the question of wet and dry, but they are very much interested in the question of the form of government under which they shall live. They realize that Prohibition is not a real disease, but merely a symptom of a very great and deep-seated disease-- the disease of ... centralization of government from Washington ... that extends now into our home and to the dinner table. ... If we have five more years of this curse, there will be fighting in the streets of American cities."[25]

But they were just shouting at the wind. Although repealers' numbers were growing, the Dry's weren't worried. Four years later in 1930, a Dry Texas senator boasted: "There is as much chance of repealing the Eighteenth Amendment as there is for a humming-bird to fly to the planet Mars with the Washington Monument tied to its tail."[26]  Many people considered Prohibition to be a natural by-product of Women's Suffrage, and this senator was confident America's mothers were on his side.

But many mothers were seeing the same things as those men in Detroit. Mrs. Pauline Sabin was very active in Republican politics, and she had just about decided National prohibition was a disaster.[27]  Prohibition was supposed to help children. But police records showed drunkenness among teenagers and children had increased tenfold. The Salvation Army reported young girls were coming into their rescue homes 8-10 years younger than before.[28]  Sabin saw Prohibition was breeding corruption and hypocrisy, undermining American youth, and destroying the cherished principles of personal liberty and local self-government. She later recalled the moment she decided to fight Prohibition. She was sitting in a congressional hearing when the president of the Women's Christian Temperence Union shouted "I represent the women of America!" Sabin thought to herself, "Well, lady, here's one woman you don't represent."

She worked hard to elect Herbert Hoover, but then in his inauguration speech he vowed to fight harder to stop liquor. In May 1929 the Jones "five and dime" Act, which made alcohol penalties more than ten times as harsh, made its way through Congress. She resigned from the Republican National Committee and rounded up two dozen of her society friends to form the Women's Organization for National Prohibition Reform.

Sabin was a veteran of charity work and the society pages, and quickly made it fashionable to oppose Prohibition. In three years her organization grew to 1 and 1/2 million members. And, in my opinion, that's what finally did Prohibition in. When the women rebelled, and Republican women at that, Prohibition was doomed.

But there was still the problem of incumbent politicians who had, between drinks, strongly supported Prohibition for many years, and who had voted in 1929 to "get tough" by increasing penalties. Somebody had to protect them from the political consequences of changing their minds.

This problem was solved by somebody who read the Constitution, which provides two ways to propose amendments and two ways to ratify them. Once proposed, amendments can be ratified either by state legislatures or by special state ratification conventions. By using the option of conventions, every Congress member was able to stand up proud and righteous, and vote- not to repeal Prohibition, but to let the people decide this issue once and for all. State legislators were off the hook too, since special elections were held where communities voted by secret ballot to send either a wet or dry delegate.

The Repeal Amendment was sent to the States in February of 1933. It wasn't ratified until December 5th, but Congress passed the 'Beer Bill' in April, declaring that 3.2 beer was not intoxicating, hence not illegal. So the date of the end of Alcohol Prohibition is generally considered to be April 4th, 1933.

Conclusion to Part 1

I mentioned several important cases in which the supreme court affirmed very strong police and prosecution practices. If the court had not needed to support Prohibition, these cases might have been decided differently.

It might have been advisable for the 21st (Repeal) Amendment to reaffirm some of the previous assumptions about state and federal roles in government. For example Congress was careful to frame the Harrison Act as a tax, something Congress had Constitutional authority to do. The Eighteenth Amendment gave the federal government reason to pass criminal laws for the first time, and the "concurrent power" clause was necessary to give Congress this power it didn't have before.

But repealers were just trying to stop a juggernaut, and they couldn't risk failure by trying to pass an amendment with a laundry list restating basic rights. So After alcohol Prohibition ended, these legal precedents remained in place.

Prohibition showed dramatically how well-meaning people can make a bad situation much worse when they try to use the law to control human nature. And Prohibition lives on in the drug laws that have come since.

The biggest difference in prohibitions then and now is that other drugs are a minor problem compared to alcohol. For every person you know or know about whose life has been adversely affected by drugs, I'll bet you know several who were at least as injured by alcohol. Because so few people have nearly as much first hand experience with other drugs as with alcohol, it has been possible to manipulate what people believe about them. And unlike our grandparents in the 1920s, people today have no pre-prohibition experience for comparison.

Drug prohibition has grown slowly enough that we are like the frog in a frying pan that is heated slowly. We could have jumped out if we noticed soon enough, back in the 1930s, but now it may be too late. If it's not too late, the greatest blessing of Prohibitions will be the process of ending them: Prohibitions will have caused Americans to re-examine the fundamental purposes of law and government, and to stop pushing them so far past the point of diminishing returns.


1.    Beth, L.P. "Development of the U.S. Constitution, 1877-1917" - Harper and Row, New York, 1971, pp.161-62 (cited in Musto)   (back)

2.    Linn, Brian McAllister "The U.S. Army and counterinsurgency in the Philippine war, 1899-1902" - U. of N. Carolina Press, 1989   (back)

3.    Musto, David F., M.D. "The American Disease - Origins of Narcotic Control" - Oxford University Press, 1973, 1987 p. 25   (back)

4.    Szasz, Thomas S.  "Our Right to Drugs" - Praeger, NY 1992   (back)

5.    Byck, Robert, M.D. (ed) "Cocaine Papers by Sigmund Freud" Stonehill Publishing, N.Y. 1974 368 pages   (back)

6.    "Negro cocaine 'fiends' new southern menace" - New York Times, Sunday February 8, 1914 http://www.druglibrary.org/schaffer/History/negro_cocaine_fiends.htm   (back)

7.    A short article about Hobson by this author is available online at:  http://mir.drugtext.org/druglibrary/schaffer/people/hobson/captain_hobson.htm   (back)

8.    Musto, p. 53   (back)

9.    Congressional Record, House, 63rd Congress, pp. 495-620   (back)

10.    U.S. v. Jin Fuey Moy, 225 Fed. Rep 1003 (13 May, 1915)   (back)

11.    U.S. v. Friedman, 224 Fed. Rep 276 (1 June, 1915)   (back)

12.    U.S. v. Jin Fuey Moy, 241 U.S. 394 (6 June, 1916)   (back)

13.    Food Control Act (cited in Musto, p327n28)   (back)

14.    U.S. v. Doremus, 249 U.S. 86 (3 March, 1919)  Webb et al v. U.S., 249 U.S. 96 (3 March, 1919   (back)

15.    Annual reports of the Commissioner of Prohibition for Fiscal Years ending June 30th   (back)

16.    Kyvig, David E. "Repealing National Prohibition" University of Chicago Press, 1979 Lambert v. Yellowley et al., 272 U.S. 581   (back)

17.    Coffey, Thomas M. "The Long Thirst - Prohibition in America: 1920-1933" ch 1   (back)

18.    Coffey - A summarization of Remus' career is available online at:  http://www.druglibrary.org/schaffer/general/remus.htm   (back)

19.    Coffey - Einstein's Book was published in October, 1932   (back)

20.    U.S. v. Lanza, 260 U.S. 377 (cited in Kyvig)   (back)

21.    Carroll et al v. United States, 267 U.S. 132 (cited in Kyvig)  (back)

22.    Olmstead et al v. United States, 277 U.S. 438 and 485 (cited in Kyvig)  (back)

23.    Mencken, H.L. "Mr. Justice Holmes" book review in the American Mercury, May, 1932. (Mencken does not give a case cite, but says it was decided January 1, 1932)  (back)

24.    Kyvig ch5 p74  (back)

25.    Kyvig ch5 p73  (back)

26.    Senator Morris Sheppard, Associated Press dispatch, September 24, 1930 (cited in Kyvig Introduction, p2)  (back)

27.    Kyvig ch7 pp 118-27 A more thorough discussion of the Women's movement can be found at http://www.druglibrary.org/schaffer/history/rnp/RNP7.html beginning with the eighth paragraph: "One of the main pillars upholding the idea..."    (back)

28.    Fisher, Irving "The Noble Experiment" - Professor of Economics, Yale University 1930 pp 39-42   (back)

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