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[1]. 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[2]. 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.
Excellent post! Thank you!
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