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The Prohibition of Marijuana in Three Acts
My friend Tod Mikuriya, MD, always wanted to stage a reading of the April, 1937 hearing at which the House Ways and Means Committee debated a bill drafted by the U.S. Treasury Department to impose a prohibitive tax on marijuana sales. Tod intended to take the part of Dr. William Woodward, the American Medical Association lobbyist, who spoke in opposition to the bill. I was going to be The Narrator, providing context as needed. We never got it together to put on the reading.
Preparing our script for publication as an ebook —“The Prohibition of Marijuana”— I was struck by its timeliness (especially now that drug policy reformers are proposing “legalization” measures). This is material that activists will find relevant in the now.
The hearing has an inherent three-act structure. Act one consists of expert witnesses from the Treasury Department, beginning with a lawyer named Clinton Hester. He explains why Treasury isn’t asking Congress to simply add marijuana to the list of drugs banned by the Harrison Act of 1914, which included heroin and cocaine.
“The Harrison Act has twice been sustained by the Supreme Court of the United States, and lawyers are no longer challenging its constitutionality. If an entirely new and different subject matter were to be inserted in its provisions, the act might be subject to further constitutional attacks.”
He could not be more forthright. Congressman Lewis of Maryland, a Republican, asks, “On what basis did the justices who dissented question the constitutionality of the Harrison Act? “
Hester replies: “The focal point of the attack was that the provision which limited the persons to whom narcotics could be sold clearly indicated that the primary purpose of the act was not to raise revenue, but to regulate matters which were reserved to the States under the 10th Amendment.”
In other words, Treasury had to concoct a scheme to get around the 10th Amendment, which leaves the regulation of medicine up to the states. Congress had recently placed a prohibitive sales tax on machine guns, so Treasury’s clever lawyers figured they could do the same with marijuana. Machine guns, marijuana, what’s the difference?
Hester went on: “This bill would permit anyone to purchase marijuana as was done in the National Firearms Act in permitting anyone to buy a machine gun. But he would have to pay a tax of $100 per ounce of marijuana and make his purchase on an official order form. A person who wants to buy marijuana would have to go to the collector and get an order form in duplicate, and buy the $100 tax stamp and put it on the original order form there. He would take the original to the vendor, and keep the duplicate. If the purchaser wants to transfer it, the person who purchases the marijuana from him has to do the same thing and pay the $100 tax. That is the scheme that has been adopted to stop high-school children from getting marijuana.”
Nowadays leading drug-policy reformers define the taxation and regulation of marijuana as “legalization.” In 1937 the Treasury Department used the tax-and regulate strategy to impose prohibition.
The next witness was Harry J. Anslinger, the original drug czar. Anslinger was an ambitious Treasury agent who had married the favorite niece of Treasury Secretary Andrew Mellon. Young Anslinger had made his mark as a zealous enforcer of alcohol prohibition. Mellon appointed him commissioner of the Federal Bureau of Narcotics in 1930.
Harry Anslinger is known to activists as the orchestrator of the “Reefer Madness” campaign to demonize marijuana in the ‘30s. But the lines quoted below are not from a movie in which actors pretend to smoke marijuana and go berserk; this is testimony that will be elevated to the level of a Congressional finding —actual, factual reality as perceived by the United States Government!
Anslinger: Some individuals have a complete loss of a sense of time or a sense of value. They lose the sense of place. They have an increased feeling of physical strength and power. Some people fly into a delirious rage and they are temporarily irresponsible and may commit violent crimes. Other people will laugh uncontrollably…
“It is dangerous to the mind and body, and particularly dangerous to the criminal type, because it releases all of the inhibitions. I have here statements by the foremost expert in the world talking on this subject: “The use of cannabis, whether smoked or ingested in its various forms, undoubtedly gives rise to a form of addiction, which has serious social consequences: abandonment of work, propensity to theft and crime, disappearance of reproductive power…”
“I will give you gentlemen just a few outstanding evidences of crimes that have been committed as a result of the use of marijuana. Here is a gang of seven young men, all seven of them, young men under 21 years of age. They terrorized central Ohio for more than two months and they were responsible for 38 stick-ups. They all boast that they did those crimes while under the influence of marijuana.
“Colorado seems to have had a lot of cases of violence recently. In Alamosa County and in Huerfano County the sheriff was killed as the result of the action of a man under the influence of marijuana. Recently in Baltimore a young man was sent to the electric chair for having raped a girl while under the influence of marijuana.
“I would also like to… introduce correspondence from the editor of a Colorado newspaper who was asked by civic leaders and law officers to contact the Treasury Department. ‘Two weeks ago a sex-mad degenerate named Leo Fernandez brutally attacked a young Alamosa girl. He was convicted of assault with intent to rape and sentenced to 10 to 14 years in the state penitentiary… I wish I could show you what a small marijuana cigarette can do to one of our degenerate Spanish-speaking residents. That’s why our problem is so great; the greatest percentage of our population is composed of Spanish-speaking persons, most of whom are low mentally, because of social and racial conditions.’”
In act two, Treasury presents a few “expert witnesses” in support of prohibition, and representatives of the hemp industry express surprise that this infernal “marihuana” —that’s how the feds spelled it, as if correcting the Mexicans— was the hemp plant whose seeds they imported by the boatload and processed into oil for use in linoleum, paint, etc., and sold as bird food.
A pharmacologist named James Munch, director of research for the drug company John Wyeth & Bros., explained “how dogs are used in drug development.” Scientists would assess the potency of a batch of herb by observing how a dog acted after ingesting it.
“We have to give larger doses as the animals are used over a period of six months or a year,”
according to Munch. “This means that the animal is becoming habituated, and finally the animal must be discarded because it is no longer serviceable.”
Munch explains why cannabis tinctures fell out of favor among doctors in the early 20th century. No matter how many dogs the drug companies used and “discarded,” they couldn’t achieve consistency from batch to batch. A given tincture or salve might be too strong or too weak. As Dr. Munch put it, “At this time the product which may be used is used without being standardized.”
Today the FDA has authorized clinical trials of Sativex, an extract of the cannabis plant with precisely known and replicated contents. Sativex, made by GW Pharmaceuticals, is undergoing phase 3 clinical trials in the U.S. for cancer pain. The results should be in by 2014. But back to our next witness…
Herbert Wollner, a chemist with the Treasury Department showed some graphics of Cannabis flowering tops and described how researchers seeking to isolate the active ingredients had extracted an oil from the resin. To the confused Congressmen he explained how this psychoactive oil — “hash oil,” it’s called nowadays— differs from hempseed oil.
Treasury’s final witness was Lyster H. Dewey, a botanist, who estimated that 10,000 acres of hemp were then under cultivation in the U.S.. Dewey listed the leading grow sites, which might be of interest to anyone looking for feral plants: “The largest areas are in Wisconsin and Illinois —especially around Danville in Illinois. It is also grown in Kentucky; in northeastern Nebraska, in Cedar County, and in southern Minnesota. There it is chiefly grown around Blue Earth and Makato. It is grown in Wisconsin around Beaver Dam, Juneau, and Brandon, north of Waupun.”
The Befuddled Hempsters
Ralph Lozier, a former Congressman from Missouri, represented the National Institute of Oilseed Producers —an association of some 20 companies. Lozier said of his clients:
“These people buy these cargoes. They buy this product by shiploads, by trainloads, and by carload. They manufacture this oil and sell it in tank cars. They have been engaged in this business for years, and never, until the last three weeks, was any suggestion made that they were handling a commodity that was carrying a deleterious principle that was contributing to the delinquency of the people of the United States!”
Lozier’s misgivings about marijuana prohibition were profound and prophetic: “The measure before you is one which should not be hastily considered or hastily acted upon. It is of that type of legislation which conceals within its four corners activities, agencies and results that this committee, without a thorough investigation, would never think were embodied in its measure.
“This bill brings the activities of this great industry under the supervision of a bureau,” he grumbled, “which may mean its suppression.” His clients would be “required to make reports. The books of the seed crushers would be subject to inspection. Under this bill the Government has a right to go into the factories and offices and make investigations…”
But Lozier accepted a deal from Treasury, agreeing that his clients would henceforth sterilize the seeds they imported (about 64 million pounds per year), and would get an exemption from the $100-per-transaction tax.
The next witness was Raymond G. Scarlett, representing William G. Scarlett & company, seed merchants of Baltimore, who extolled the virtues of hemp seed. “We handle a considerable quantity of hempseed annually for use in pigeon feeds,” Scarlett stated. “That is a necessary ingredient in pigeon feed because it contains an oil substance that is a valuable ingredient of pigeon feed, and we have not been able to find any seed that will take its place. If you substitute anything for the hemp, it has a tendency to change the character of the squabs produced; and if we were deprived of the use of hempseed, it would affect all of the pigeon producers in the United States, of which there are upwards of 40,000.”
[Maybe the prohibition of hemp resulted in squab playing a less important role in the American diet.]
Doughton of North Carolina asks, “Does that seed have the same effect on pigeons as the drug has on individuals?”
Scarlett replies, “I have never noticed it. It has a tendency to bring back the feathers and improve the birds.
Mr. Scarlett did not point out the implications of his own knowledge. Hempseed oil contains some unique component or components very beneficial to birds. How can it be so good for birds and so bad for people? But he didn’t say that, he said:
“We are not interested in spreading marijuana, or anything like that,” he reassured the committee. “We do not want to be drug peddlers… If we could sterilize the seed there would be no possibility of the plant being produced from the seeds that the pigeons might throw on the ground… That is the agreement we have reached with the Treasury representatives. There has been an amendment proposed to section 1(b) by excluding from the definition of marijuana sterilized seed which is incapable of germination.
Doughton asks, “What is the relation between hempseed and marijuana?”
Scarlett says, “Until Monday of this week we did not know that there was any connection between the two. When this bill came and we saw that it was called ‘a bill to impose an occupational excise tax upon dealers in marijuana,’ we paid no attention to it. Nobody in the seed trade refers to hempseed as marijuana. Hempseed is a harmless ingredient used for many years in the seed trade. They say that hemp and marijuana are one and the same thing, but it was not until Monday that we knew they were.”
The Congressmen were confused, too.
REED: I want to get it clearly in my mind that this marijuana and the ordinary hemp that we hear about are the same thing. The plant is the same?
SCARLETT: Yes, sir.
REED: There is no difference?
SCARLETT: No sir, not to my knowledge.
REED: Can anybody answer that question?
Next up was Joseph B. Hertzfeld, manager of the feed department of the Philadelphia Seed Co., who also took the Treasury Department deal. “Our firm is heartily in sympathy with the aims and purposes of this bill,” Hertzfeld declared, “and we have no desire to become parties in spreading this drug around the country. We have been manufacturers of feeds and mixed birdseeds for many years, and in those mixtures hempseed is a very important item. Hempseed is very beneficial because it adds the proper oil to the mixture and promotes the growth of feathers, and it is also a general vitalizer. Birds lose their feathers and hempseed aids considerably in restoring the bird’s vitality quickly. Otherwise there is a delay of two or three months before the bird gets back into condition, and the use of hempseed helps to accomplish that purpose.
“I want to second what Mr. Scarlett has just said, and to express our willingness to have the seed sterilized so that it cannot be grown and thus cause any harm. This agreement which has been referred to, that we reached yesterday with Mr. Hester, is very satisfactory to us.”
Act Three: The AMA Dissents
William Woodward, who represented the American Medical Association at the hearing, was both a medical doctor and a lawyer. “Gentlemen,” said Woodward, “there is nothing in the medicinal use of cannabis that has any relation to cannabis addiction. I use the word ‘cannabis’ in preference to the word ‘marijuana,’ because ‘cannabis’ is the correct word for describing the plant and its products. The term ‘marijuana’ is a mongrel word that has crept into this country over the Mexican border and has no general meaning, except as it relates to the use of cannabis preparations for smoking. It is not recognized in medicine, and hardly recognized even in the Treasury Department.”
Woodward confirmed that medicinal use of cannabis had “greatly decreased” over the years “partially because of the uncertainty of the effects of the drug. That uncertainty has heretofore been attributed to variations in the potency of the preparations as coming from particular plants. The variations in the potency of the drug as coming from particular plants undoubtedly depends on variations in the ingredients of which the resin of the plant is made up.
“To say, however, as has been proposed here, that the use of the drug should be prevented by a prohibitive tax, loses sight of the fact that future investigation may show that there are substantial medical uses.”
And sure enough, future investigators have identified the active components in the resin and now cannabis plants with standardized contents and potency are available to consumers.
Woodward objected to Treasury’s end-run around the question of whether the Constitution leaves the regulation of medicine up to the states. “If this proposed bill is constitutional,” he said, “there can be no reason why its provisions should not be incorporated in the Harrison Narcotic Act. If it is not constitutional, obviously it should not be enacted.”
Vinson of Kentucky subjected Woodward to a snide, relentless grilling worthy of Joe McCarthy. Vinson suggested that the venerable lawyer was not authorized to speak for the AMA. Vinson refused to accept Woodward’s explanation of the difference between an op-ed piece in JAMA and a policy statement by the AMA. Vinson implied that Woodward was at odds with the president of the AMA, who had testified in support of a Social Security measure allocating $2 million for research and $8 million in grants to states for public-health work.
Woodward responded with dignity. He was a liberal Republican —an almost extinct species nowadays— being interrogated by Southern Democrats who had seen to it that Social Security did not extend to farm workers and domestic servants (jobs held mainly by Black people). Woodward commented, “I am thoroughly in favor of the appropriation by the federal government of adequate money for research by the Public Health Service or any other agency of the government; and an adequate appropriation of money by the federal government to meet the needs of the destitute and suffering.”
The House and Ways Committee approved the Marijuana Tax Act and sent it to the Senate Finance committee, which, after a cursory hearing, approved it with some minor wording changes. Either his dignity prevented him or Dr. Woodward realized that the fix was in because instead of appearing before the Senate committee he sent them a letter stating the AMA’s reason for opposing a federal prohibition of marijuana: there was no reason for it.
On June 14, 1937, the bill came before the full House. Fred Vinson of Kentucky was its main advocate. Only four representatives asked for an explanation of the bill’s provisions. In response, Vinson recounted the Congressional finding that marijuana inspired violence and criminality. Commissioner Anslinger’s testimony was reported to the full Congress as undisputed fact. The question of whether the American Medical Association agreed with the bill was answered thus by Congressman Vinson:
“Our committee heard testimony of Dr. William Wharton (sic) who not only gave this measure his full support, but also the approval from the American Medical Association, which he represented as legislative counsel.”
Wharton, Woodward, what’s the difference?
The Marijuana Tax act passed without a roll call and was enacted into law in September of 1937. The blatant liar Fred Vinson was named Secretary of the Treasury by President Harry Truman in July 1945. Vinson helped create the International Monetary Fund and the U.S.-dominated new world order. In 1946 Truman named him Chief Justice of the U.S. Supreme Court. He would be succeeded by Earl Warren in 1953.
In America our history gets taken away from us and we don’t even know it. We’re taught that systematic falsifications only happen in other countries, where individual rights are not respected and the people are impotent and cynical. It happens here, too. As Tod Mikuriya said, “It wasn’t just marijuana that got prohibited, it was the truth about history.”
Fred Gardner is managing editor of O’Shaughnessy’s, which is now online at BeyondTHC.com. He writes for Counterpunch and the Anderson Valley Advertiser.