V. Passage of the Marihuana Tax Act of 1937
C. The Tax Act Hearings
Although the Marihuana Tax Act was modeled after the Harrison Act, marijuana was not simply included in the earlier act primarily for three reasons. First, the importation focus of the Harrison Act was inappropriate for marijuana because there were domestic producers.20
Second, since cannabis had been removed from the United States Pharmacopoeia and had no recognized medicinal uses, the variety of medical exceptions in the Harrison Act were inapplicable.21 Third, even though the Supreme Court had upheld the Harrison Act's prohibition against purchase by unregistered persons of the designated drugs, there was some uncertainty whether the earlier 5-4 decision22 would be followed. Accordingly, the Marihuana Tax Act imposed a prohibitive tax of $100 an ounce on the designated transactions, rather than prohibit the purchases directly.23
The brief three days of hearings on the Act24 present a case study in legislative carelessness. At no time was any primary empirical evidence presented about the effects of the drug, and the participating congressmen seem never to have questioned the assumed evils. Furthermore, the only real concerns seem to have been that farmers would be inconvenienced by having to kill a plant which grew wild in many parts of the country, and that the birdseed, paint and varnish, and domestic hemp industries would be damaged by passage of the law.25 Finally, the one witness appearing in opposition to the bill, Dr. William C. Woodward, legislative counsel of the American Medical Association and an early and respected participant in the drafting of the Uniform Narcotic Drug Act,26 was roundly insulted for his audacity in daring to question the wisdom of the Act.
We reproduce in the following few pages some of the dialogue from the hearings, to give the reader the flavor of these ramshackle proceedings, and to allow him to understand more fully the pyramiding of absurdity represented by the amendments of the 1950's. From the hearings we extract contemporary perception of use patterns and harmful effects of marijuana, the quality of medical and other evidence presented, and a short glimpse at how the witnesses were treated by the committee.
1. Who Were Users?
The record of the hearings indicates quite clearly that the Federal Narcotics Bureau was anxious for the committeemen to believe marijuana use was a relatively new phenomenon that was on the increase in America.27 Once again, marijuana use and the Mexican minority were closely linked: "The Mexican laborers have brought seeds of this plant into Montana and it is fast becoming a terrible menace, particularly in the counties where sugarbeets are grown."28 Again, also, marijuana was presented as the agent by which the underworld class hoped to enslave American youth.29 The youth of the marijuana users was contrasted with the increasing age of the usual opiate addict. Perhaps most interestingly for later developments, Commissioner Anslinger succinctly noted that heroin addicts and marijuana users came from totally different classes and that the use of one drug was unrelated to use of the other:
Mr. Anslinger. This drug is not being used by those who have been using heroin and morphine. It is being used by a different class, by a much younger group of people. The age of the morphine and heroin addict is increasing all the time, whereas the marihuana smoker is quite young.Mr. Dingell. I am just wondering whether the marihuana addict graduates into a heroin, an opium or cocaine user.
Mr. Anslinger. No sir; I have not heard of a case of that kind. I think it is an entirely different class. The marihuana addict does not go in that direction30
The hearings shed no more light on who was using the drug and in what numbers.
2. What's Wrong with Marijuana?
If the proceedings did not shed light on the patterns of usage, this in no way was an obstacle to unanimity on the evils of the drug-insanity, criminality and death. Three major sources were relied on to support this consensus (1) a variety of horror stories from newspapers cited by Mr. Anslinger and others about atrocious criminal acts committed by individuals under the influence of the drug;31 (2) studies by Eugene Stanley, the District Attorney of New Orleans, linking the drug and the population of the Louisiana jails;32 and (3) some inconclusive experimentation on dogs.33 As we noted earlier, the newspaper stories about crimes committed under the influence of marijuana have two things in common: The reports are unsubstantiated, and many of the accused invoked their use of marijuana as a defense to the charge .34
The New Orleans report concluded: "After an exhaustive research on marijuana from its earliest history to the present time, this drug is in our judgment the one that must be eliminated entirely." 35 What was this exhaustive research? It appears to have been nothing but quotations from the most hysterical series of newspaper articles to appear at that time36 and reports of the number of marijuana addicts to be found in the prison population.37 The relation of these figures to the conclusion that the drug must be regulated was never established.
The Stanley study38 was even less well documented and even more outrageous in its description of the effects of marijuana use. "It is an ideal drug to quickly cut off inhibitions." 39 For this proposition Stanley relied on the story of the Persian "Assassins" who allegedly committed acts of terror while under the influence of hashish. Although Stanley included in his list of references the Indian Hemp Drugs Commission Report, it is clear he made little effort to catalogue the then available data but contented himself with a number of bold and undocumented assertions. In reading the hearings, one continues to expect some report of a medical or scientific survey, and instead one finds these two reports by New Orleans law enforcers. The contrary conclusions of the Canal Zone studies were not even mentioned.
Finally, a scientific study of the effects of marijuana was presented, but, in keeping with the overall tone of the hearings, this was the most preposterous evidence of all. The Treasury Department presented a pharmacologist who had tested the effects of the cannabis drugs on dogs. 40 He concluded that "[c]ontinuous use will tend to cause the degeneration of one part of the brain." 41.
One paragraph later, however, this scientist stated: "Only about 1 dog in 300 is very sensitive to the test."42 Later in the doctor's testimony, after he had stated over and over the potential evils found from the testing on dogs, he was unable to make the crucial link between a dog's response to the drug and the human response. More incredibly, as the following exchange points out, the doctor really had no knowledge of what effect the drug had on the dogs, since he was not familiar with the psychology of dogs:
Mr. McCormack. Have you experimented upon any animals whose reaction to this drug would be similar to that of human beings.Dr. Munch. The reason we use dogs is because the reaction of dogs to this drug, closely resembles the reaction of human beings.
Mr. McCormack. And the continued use of it, as you have observed the reaction on dogs, has resulted in the disintegration of the personality?
Dr. Munch. Yes. So far as I can tell, not being a dog psychologist .... 43
Dr. Woodward, the sole witness representing the American Medical Association, noted the inadequacy of these medical statistics. We include his statement on that point in full:
That there is a certain amount of narcotic addiction of an objectionable character no one will deny. The newspapers have called attention to it so prominently that there must be some grounds for their statements. It has surprised me, however, that the facts on which these statements have been based have not been brought before this committee by competent primary evidence. We arc referred to newspaper publications concerning the prevalence of marihuana addiction. We are told that the use of marihuana causes crime.But yet no one has been produced from the Bureau of Prisons to show the number of prisoners who have been found addicted to the marihuana habit. An informal inquiry shows that the Bureau of Prisons has no evidence on that point.
You have been told that school children are great users of marihuana cigarettes. No one has been summoned from the Children's Bureau to show the nature and extent of the habit, among children.
Inquiry of the Children's Bureau shows that they have had no occasion to investigate it and know nothing particularly of it.
Inquiry of the Office of Education-and they certainly should know something of the prevalence of the habit among the school children of the country, if there is a prevalent habit-indicates that they have had no occasion to investigate and know nothing of it.
Moreover, there is in the Treasury Department itself, the Public Health Service, with its Division of Mental Hygiene. The Division of Mental Hygiene was, in the first place, the Division of Narcotics. It was converted into the Division of Mental Hygiene, I think, about 1930. That particular Bureau has control at the present time of the narcotics farms that were created about 1929 or 1930 and came into operation a few years later. No one his been summoned from that Bureau to give evidence on that point.
Informal inquiry by me indicates that they have had no record of any marihuana or Cannabis addicts who have even been committed to those farms.
The Bureau of the Public Health Service has also a division of pharmacology. If you desire evidence as to the pharmacology, of Cannabis, that obviously is the place where you can get direct and primary evidence, rather than the indirect hearsay evidence. 44
Dr. Woodward's testimony clearly manifests the deficiencies of the hearings, for at no time did the congressional committee hear primary sources of competent medical evidence before labeling cannabis the producer of crime and insanity.
3. How Dare You Dissent!
Following the testimony of the Treasury Department and its witnesses, the only witnesses who came forward were representatives of legitimate industries that feared the Tax Act would damage their businesses, because manufacture of their products required some part or parts of the cannabis plant.45 These witnesses were assured that the Tax Act would have little if any impact on their operations .46
The one witness who opposed the adoption of the Act was roundly accused of obstructionism and bad faith. Dr. Woodward, one of the chief drafters of the Uniform Narcotic Drug Act, appeared on behalf of the AMA to suggest that, if there was to be any regulation of the cannabis drugs at all, it should be added to the Harrison Act and not be the subject of this separate, and he felt inadequately considered, legislative proposal.47 We have already examined Dr. Woodward's skepticism on the dangers of the drug. He added to this a thinly veiled attack on the lack of cooperation the AMA had received from the Federal Bureau of Narcotics.48 Finally, he advocated either assisting state enforcement of their existing laws dealing with the drug or at most including marijuana as a regulated and taxed drug under the Harrison Act.
Either because of antipathy to the AMA or because of the audacity of these suggestions, the Committee members savagely attacked both Dr. Woodward and the AMA. Witness the following exchange, starting with the doctor's answer to questions why, he had not proposed marijuana legislation
Dr. Woodward. In the first place, it is not a medical addiction that is involved and the data do not come before the medical society. You may absolutely forbid the use of Cannabis by any physician, or the disposition of Cannabis by any pharmacist in the country, and you would not have touched your Cannabis addiction as it stands today, because there is no relation between it and the practice of medicine or pharmacy. It is entirely outside of the those two branches.The Chairman. If the statement that you have made has any relation to the question that I asked, I just do not have the mind to understand it; I am sorry.
Dr. Woodward. I say that we do not ordinarily come directly to Congress if a department can take care of the matter. I have talked with the Commissioner, with Commissioner Anslinger.
The Chairman. If you want to advise us on legislation, you ought to come here with some constructive proposals, rather than criticism, rather than trying to throw obstacles in the way of something that the Federal Government is trying to do. It has not only an unselfish motive in this, but they have a serious responsibility.
Dr. Woodward. We cannot understand yet, Mr. Chairman, why this bill should have been prepared in secret for 2 years without any intimation, even, to the profession, that it was being prepared .49
After accusing Dr. Woodward of obstruction, evasion and bad faith, the Committee did not even thank him for his testimony.50
D. Congressional "Deliberation" and Action
We noted earlier that the marijuana "problem" and the proposed federal cure were virtually unnoticed by the general public. Unable to arouse public opinion through its educational campaign, the Bureau of Narcotics nevertheless pushed the proposed legislation through congressional committees. The Committee members were convinced by meaningless evidence that federal action was urgently needed to suppress a problem that was no greater and probably less severe than it had been in the preceding six years when every state had passed legislation to suppress it. The Committee was also convinced, incorrectly, that the public was aware of the evil and demanded federal action.
The debate on the floor of Congress shows both the low public visibility of the legislation and the nonchalance of the legislators. The bill passed the House of Representatives in the very late afternoon of a long session; many of the members were acquainted neither with marijuana nor with the purpose of the Act. When the bill first came to the House floor late on June 10, 1937, one congressman objected to considering the bill at such a late hour, whereupon the following colloquy occurred:
Mr. DOUGHTON. I ask unanimous consent for the present consideration of the bill (H.R. 6906) to impose an occupational excise tax upon certain dealers in marihuana, to impose a transfer tax upon certain dealings in marihuana, and to safeguard the revenue therefrom by registry and recording.The Clerk read the title of the bill.
Mr. SNELL. Mr. Speaker, reserving the right to object, and notwithstanding the fact that my friend, Reed, is in favor of it, is this a matter we should bring up at this late hour of the afternoon? I do not know anything about the bill. It may be all right and it may be that everyone is for it, but as a general principle, I am against bringing up any important legislation, and I suppose this is important, since it comes from the Ways and Means Committee, at this late hour of the day.
Mr. RAYBURN. Mr. Speaker, if the gentleman will yield, I may say that the gentleman from North Carolina has stated to me that this bill has a unanimous report from the committee and that there is no controversy about it.
Mr. SNELL. What is the bill?
Mr. RAYBURN. It has something to do with something that is called marihuana. I believe it is a narcotic of some kind.
Mr. FRED M. VINSON. Marihuana is the same as hashish.
Mr. SNELL. Mr. Speaker, I am not going to object but I think, it is wrong to consider legislation of this character at this time of night.51
On June 14 when the bill finally emerged on the House floor, four representatives in one way or another asked that the proponents explain the provisions of the Act. Instead of a detailed analysis, they received a statement of one of the members of the Ways and Means Committee repeating uncritically the lurid criminal acts Anslinger had attributed to marijuana users at the hearings. After less than two pages of debate. the Act passed without a roll call.52 When the bill returned as amended from the Senate, the House considered it once again, and adopted as quickly as possible the Senate suggestions, which were all minor.53 The only question was whether the AMA agreed with the bill. Mr. Fred Vinson not only said they did not object when in fact their committee witness had dissented strenuously, but he also claimed that the bill had AMA support. After turning Dr. Woodward's testimony on its head, he also called him by another name, Wharton.54
In summary, the Act passed the Congress with little debate and even less public attention. Provoked almost entirely by the Federal Bureau of Narcotics and by a few hysterical state law enforcement agents hoping to get federal support for their activities, the law was tied neither to scientific study nor to enforcement need. The Marihuana Tax Act was hastily drawn, heard, debated and passed; it was the paradigm of the uncontroversial law.
Footnotes and References
20 Compare Tax Act Hearings 13-14 (testimony of Clinton Hester, Office of the General Counsel of the Treasury Department) with State v. Bonoa, 172 La. 955, 136 So. 15 (1931). It should be asked whether the information at congressional disposal changed so drastically between 1937 and 1956 as to justify the statutory presumption enacted at that time, 21 U.S.C. 5 176a (1964), providing that possession of marijuana was presumptive evidence of knowing concealment of illegally imported marijuana.
21 Tax Act Hearings 13-14. Earlier state statutes, particularly Virginia's, had taken great pains to outline medical exemptions from the marijuana prohibition. See p. 1040 supra.
22 United States v. Doremus, 249 U.S. 86 (1919).
23 Tax Act Hearings 13-14.
24 The hearings, including all material not actively discussed but merely read into the record, cover only 124 pages.
25 Tax Act Hearings 77-86; see State v. Bonoa, 172 La. 955, 136 So. 15 (1931).
26 See pp. 1030-32 supra.
27 See Tax Act Hearings 30-3 1.
28 Id. at 45.
29 Quoting Dr. Walter Bromberg, Mr. Anslinger stated:
Young men between the ages of 16 and 25 are frequent smokers of marihuana; even boys of 10 to 14 are initiated (frequently in school groups); to them as to others, marihuana holds out the thrill. Since the economic depression the number of marihuana smokers was increased by vagrant youths coming into intimate contact with older psychopaths.
Tax Act Hearings 24. See also id. at 32-35, 39, 45.
30 Id. at 24.
31 Id. at 22-23.
32 Id. at 32-37.
33 Id. at 50-52.
34 See id. at 22-23. It is entirely likely that some of these particularly lurid stores were the product of desperate defendants, who, upon being caught red-handed in the commission of crime, sought mitigation of their penalties by claiming to be under the influence of the drug. See Bromberg, Marijuana: A Psychiatric Study, 113 J.A.M.A. 4 (1939). Bromberg cautions, "The extravagant claims of defense attorneys and the press that crime is caused by addiction to marihuana demands [sic] careful scrutiny, at least in this jurisdiction [New York County)." Id. at 10.
35 Tax Act Hearings 35.
36 A good example is the series run by the St, Louis Star-Times in early 1935 which featured such articles as the one entitled "Young Slaves to Dope Cigaret Pay Tragic Price for Their Folly" on Jan. 18, 1935.
37 See Gomila & Gomila, Marihuana-A More Alarming Menace to Society Than All Other Habit-Forming Drugs, quoted in Tax Act Hearings 32, 34. Mr. F. R. Gomila was public safety director of New Orleans.
38 Stanley, Marihuana as a Developer of Criminals, 2 Am. J. Police Sci. 252 (1931), quoted in Tax Act Hearings 37-42, is based on, and indeed is nearly a word-for-word paraphrase of, Fossier's article in the New Orleans Medical journal, supra note 91 at P. 1044. As we have seen, Fossier, in reaching his conclusions, overlooked the Panama Canal Zone study.
39 Tax Act Hearings 39.
40 0ne assumes the drug was thought to be too dangerous to risk experimentation on people.
41 Tax Act Hearings 48.
42 Id.
43 Id. at 51.
44 Id. at 92.
45 Thus, the following witnesses appeared: Hon. Ralph E. Lozier, General Counsel of the National Institute of Oilseed Products; Raymond G. Scarlett of the birdseed industry; and Joseph B. Hertzfeld, Manager, Feed Department, The Philadelphia Seed Co.
46 See id. at 74.
47 Id. at 87-121.
48 Id. at 87-88 ("During the past 2 years I have visited the Bureau of Narcotics probably 10 or more times. Unfortunately, I had no knowledge that such a bill as this was proposed until after it had been introduced").
49 Id. at 116.
50 See id. at 121. There is sonic indication in Fred Vinson's questioning of Dr. Woodward that one cause of the hostility directed at the witness was the growing disfavor with which the New Deal Congress viewed the fairly conservative AMA. Vinson was particularly pointed when he said that the AMA was trying to obstruct here as it had with the Health Care provisions of the Social Security Act, Id. it 102-04.
51 81 CONG. REC. 5575 (1937).
52 Id. at 5689-92.
53 Id. at 7624-25.
54 Id. at 7625.
Back to The Forbidden Fruit and the Tree of Knowledge Contents