Roots of the Marihuana Tax Act
The Marihuana Tax Act of 1937 is commonly seen as the birth of modern marijuana Prohibition, but its roots are buried in obscurity. This Act seemed to arise from nowhere, unlike Alcohol Prohibition, which took eighty years to grow from Maine’s first state law to the Eighteenth Amendment, or the Harrison Narcotic Act, which grew from early recognition of the opiate problem at least twenty-five years before its passage. The brief, uninformative congressional hearings and the almost non-existent floor debates do nothing to clarify the mystery.
The Act’s lack of history fed the growth of several conspiracy theories: Hearst was suppressing hemp competition for his newsprint business; the DuPonts wanted to clear the rope-making field for their new nylon; Morgenthau didn’t like FDR’s agricultural programs. None of these hold up to scrutiny, but they are not necessary to tell the story.
A deeper look behind the Act shows that it has a history over two decades long, just as the Prohibitions of alcohol and of opiates and cocaine did; and just like those laws its history was primarily xenophobic and racist; but it also included economic issues and limits of federal power.
The story of marijuana prohibition begins with the 1910 outbreak of armed revolution in Mexico, a revolution that continued for at least three years. Great numbers of immigrants streamed north across the border, first into Texas, New Mexico, Arizona, and California, but then into non-border states as well. And many of them brought along their taste for mota, marijuana.
These states quickly saw marijuana as a means of suppressing, or even removing, these Mexican intruders. The city of El Paso was first with an ordinance in 1915 followed by a Utah state law prohibiting marijuana the same year. Other states soon followed, Texas and Colorado before 1925. By the mid-1930s, over twenty states had anti-marijuana laws. (California had outlawed “Indian Hemp” before the El Paso action, and some New England states had even earlier laws against cannabis, but they do not directly affect the main course of development.)
Most of the Mexican newcomers were from rural backgrounds and uneducated, and they primarily filled agricultural laboring jobs in the U. S. But by the 1930s, agriculture was in sad shape in America. First, the gasoline engine for cars and tractors had devastating effects. In 1900, over thirty percent of all cropland was used to grow horse feed; these acres were idled by 1925. Tractors, much more effective than horse-drawn plows, put many farm laborers out of work. The world-wide depression almost destroyed farm exports. Unemployed farm workers put large strains on local economies in rural states, especially those who had received large numbers of Mexican refugees. (John Steinbeck’s Grapes of Wraith presents the best picture of those displaced workers, but Woodie Guthrie’s song “Deportees” highlights the added problems of the Mexican laborers.)
While the New Deal farm programs did much to help farm owners, they did nothing to relieve states of the burden of excess farm workers; and in many of the effected states those workers were viewed through racist lenses as presenting a Mexican problem. These states asked for federal help; and they based their request on fear of crazed Mexicans fueled on “loco weed”, just as earlier laws were to combat drunken Irishmen, violent southern Blacks fueled on cocaine, or evil Chinese luring innocent girls into their opium dens. These requests were funneled through Morgenthau, who in turn, recruited Harry Anslinger.
Anslinger, head of the Bureau of Narcotics, was a proud general in the war against heroin, but he was a reluctant draftee in the fight against marijuana. He moved from the State Department to the Prohibition Bureau, where he first encountered Nicky Arnstein and his protégé Lucky Luciano. He observed their transition from bootleggers to heroin importers and dealers, and when he moved to the Narcotics Bureau he concentrated on international diplomatic controls of opiates and operations against centralized, organized, and disciplined gangs. The diffused, unorganized, locally grown marijuana did not fit into his established way of doing things and offered little opportunities to build his fame or power.
Anslinger spent the first part of the ‘30s trying to get the states to accept responsibility for marijuana. He sat in with the Commissioners on Uniform State Laws as they drafted their Uniform Narcotics Law (The Commissioners are a non-governmental group of legal experts who try to instill uniformity across the country by drafting model legislation which they then lobby the states to adopt. The Uniform Commercial Code is probably their greatest success, although dozens of their standards have been widely adopted). They rejected his proposal, including only an optional provision that states could adopt, but without recommendation that they do so.
The tabloid press was Anslinger’s next step in an attempt to scare the states into action. After his failure with the Commissioners, he arranged for about five lurid stories to be written, and this were each published several times with no investigation into their truthfulness. Even his congressional testimony in support of the Act was tepid at best. His claim that only 200,000 people used marijuana, and those primarily Negro musicians, certainly minimized the problem rather than highlighting it. For a decade after the Act was passed, any BN agent involved in a marijuana arrest would receive a letter of reprimand from Anslinger for wasting his time that could be better spent going after “real” drug dealers. Only after the Boggs amendment in the early 1950s equated marijuana with heroin did the BN start devoting any enforcement effort to it.
When Morgenthau decided to act on the pressure from the states, he had a new tool at his command. In 1934, the Supreme Court had upheld the machine gun tax as a legitimate use of congressional Article I taxing power even though it was designed, not to raise revenue, but to make purchase of machine guns so onerous as to be impossible. With this precedent in front of them, congress was able to prohibit marijuana out of existence by taxing it to death (at least until 1969 when the Court declared the Tax Act unconstitutional because its requirement of a signed tax return violated the self-incrimination provisions of the Fifth Amendment).
The roots of the Marihuana Tax Act sprang from a mix of three fertile soils: racism – an attempt to remove or control the Mexican immigrants, economics – reducing he impact of the Depression on agricultural states, and the taxing power – a means of exerting federal power in an area traditionally delegated to the states.
But we still don’t know why marihuana was spelled with an h.