Prohibition In America: A Brief History

For thousands of years, humans have smoked marijuana, used opium to treat pain, chewed coca (cocaine) leaves for energy, and ingested substances like the peyote cactus and psychoactive mushrooms to commune with the gods. And for thousands of years, communities took care of the problem of drug abuse through social and cultural pressures. The system was arguably working; these openly drug using societies did not collapse, or even particularly suffer for having no legal barriers to drug use. Yet, largely within the past century, America has pursued a relatively radical model of how to deal with intoxicating substances: The iron fist of Prohibition. Instead of just drug abuse (excessive, unhealthy patterns of use) being the problem, the Americans declared that all non-medically necessary drug use, no matter how responsible or careful, was evil and had to be opposed by any means available. The usual assumption is that the Prohibitionist answer to how a society should deal with drug use was born purely of a noble desire to protect users from harming themselves. The real story…is far less virtuous.

The Yellow Menace

In the 1870s in America, large numbers of Chinese immigrants were arriving in search of better lives. Facing severe racism, these early Chinese-Americans were often forced to take the most brutal and low-paying jobs, such as building the network of railroad tracks that was becoming the backbone of American industry and expansion. Beyond their strong work ethic, many Chinese brought something else to America: a habit of smoking opium. (An activity introduced to the Chinese by the British, who ran a massive and lucrative smuggling trade bringing opium from India into China after it was outlawed in the late 1700s. When the Chinese cracked down on the illegal trade, the British began what would become known as the Opium Wars, eventually forcing China to re-legalize the opium trade.)

At first, the Americans had little interest in this use of opium (which was legal regardless), and the Chinese tended to form insular communities which limited their interactions with the then deeply racist white American majority. Still, as is always the case, not everybody was content to ignore these new Americans. Some were curious, others simply became familiar with them by working with Chinese laborers on jobs. Eventually, the idea of smoking opium grew within the consciousness of white America, with the more daring visiting Chinese opium smoking parlors to indulge in this new fad in intoxicants. At first this mixing of racial groups primarily involved adventurous young men, and raised little objection from the general public. Shortly, however, white women as well began to frequent the opium parlors.

In 1890, the infamous tabloid newspaper publisher W. R. Hearst (who would later become a staunch supporter of the Nazis) began a series of articles about the ‘Yellow Menace’, luridly describing Chinese men as seducing white women with opium. Already harboring a deep dislike of the Chinese, who many feared would overrun America, the public attitude towards opium continued to harden. Early local laws in response to the ‘opium menace’ varied: Sometimes opium was made illegal for Chinese while remaining legal for white people, in other cases opium was made illegal for whites to use while allowing Chinese to continue to use. Either way, the important thing was to keep Asians and whites from socializing.

a menacing chinese man brings opium to white addicts

This association with immigrants wasn’t the only thing that frightened the federal government into creating tighter controls on opium. Beyond the Chinese, opium-containing products sold as cure-alls and elixirs had created an opium addict population that would look rather alien to modern eyes, consisting predominantly of middle and upper class white middle-aged women. These ‘accidental addicts’ had mostly become addicted through the use of popular ‘patent medicines’, which did not normally have labels identifying their contents. (Another concept that may seem odd to us today, when even a candy bar comes with exhaustive labeling.)

Part of the response to this epidemic was the Pure Food and Drug Act of 1906, which required labels on products identifying the presence and quantity of various drugs such as opium and cocaine. However, it became clear that not all users had accidentally stumbled into the habit; a significant minority genuinely wanted to get high. Between 1905-1919 several additional federal laws were passed restricting opium, including banning imports.

In the meanwhile, other forces were gathering. The Chinese government remained deeply opposed to the opium trade, which had addicted millions of their people and destroyed what had been a positive trade balance. The Americans, coming around to the prohibitionist position themselves, also saw ending the opium trade to China as a business opportunity: If China stopped buying opium (at great expense) they would have far more money to spend on other imports, such as American goods. In a series of international conventions in 1909 and 1911, China, the US, UK, and other nations agreed to restrict the opium trade.

In 1914, a watershed event in America’s race towards Prohibition occurs: The Harrison Narcotics Act is passed, which severely restricted the sale of opiates and cocaine. As interesting as what was restricted was how it was done. Recognizing that it was unconstitutional for the US government to simply outlaw drug sales/use, they employed a tactic that had been growing in popularity: They called it a tax. Instead of outlawing the drug trade, they required that anybody involved in it had to be registered and pay a tax. However, the tax was not equally applied; doctors and pharmacists were required to pay only a registration fee, while other people were required to pay a prohibitive tax on every sale. As a result, the sale of opiates and cocaine was effectively restricted to medical professionals “in the course of [their] professional practice only.” Others, unwilling or unable to pay the tax, would be charged with tax evasion and fined/imprisoned if they sold the restricted drugs. Thus, the federal government was able to tell itself that it was acting within the constitution because it was ‘just using its power to tax’, which of course they did have a right to do. (The argument against the constitutionality of federal prohibition at the time was primarily one of state’s rights and limited federal power; the states could outlaw drugs, the federal government could not.)

The Black Menace

Running in parallel to the saga of opium was the emergence of cocaine, the active component of coca leaves, which had been extracted by the Merck pharmaceutical company (which would later patent MDMA.) Initially hailed by Sigmund Freud as a “non-addictive” cure-all, cocaine saw use as a supplement in wines and was even the ‘special ingredient’ that Coca-Cola draws its name from. (‘Cola’ refers to the cola nut, which gave the drink its distinctive flavor.) Freud’s use of cocaine in his psychiatric practice did have a certain logic; a patient that is depressed or fatigued will almost certainly feel better with a liberal supply of cocaine, although that brings its own problems.

Helped along by this apparent medical value (medicine has traditionally focused on making people feel better instead of cures, which early medicine could rarely provide) cocaine also found its way into a myriad of elixirs and potions, sold door-to-door, from catalogues, traveling medicine shows, and even grocery stores. Movie stars and public figures used and endorsed the magical new drug, and use grew rapidly. Like opium, cocaine became regulated on the national level by the Pure Food and Drug Act of 1906, requiring content labels for products containing cocaine. Also like opium, it was included in the Harrison Tax Act, which effectively created outright prohibition of the drug.

In the US, cocaine abuse was associated with black men, first in the form of laborers using the drug to increase endurance while working long, grueling hours, then in the form of widespread use by Jazz musicians at scandalously racially integrated nightclubs. In yet another echo of opium’s history, the press began to spread lurid stories of “cocaine crazed Negroes” attacking white women in the southern states. In response to this fear of drug-fueled blacks, some police departments switched to more powerful handguns out of concern that their current pistols were not powerful enough to bring down such rampaging monsters. Later, Harry Anslinger (head of what would eventually become the DEA) called for harsher penalties for cocaine by describing scenes of racially mixed groups dancing together at clubs under the presumptive influence of cocaine.

The One That Got Away

There seems to be a popular idea in America that cigarettes were only relatively recently identified as unhealthy. There were, in fact, powerful movements at least a century ago to ban cigarettes. Claims of smoking’s dangers sound eerily familiar today: Smoking causes (it was said) immorality, violence, insanity and so forth. Henry Ford, the auto manufacturing tycoon, was so concerned about its health risks that he banned smoking by his employees. Ironically, the drug with perhaps the highest rate of death and addiction known was also the one drug that has never been prohibited in the US, in spite of the anti-smoking movement reaching a fevered pitch during the same period as the enactment of alcohol and other prohibitions. In spite of its legality and high potential for addiction, tobacco is also one of the few drugs the US has had long-term success in reducing the use of. Currently, smoking kills over 400,000 Americans a year, far in excess of all other drugs combined.

Tossing The Bottle

The national stirrings against ‘chemical’ drugs like opium and cocaine were to some extent merely the latest incarnation of an old and growing trend towards prohibition of all recreational substances. Alcohol in particular had long been recognized as a cause of violence and death, and the anti-alcohol Temperance movement achieved its ultimate victory in 1919 with the enactment of the Volstead Act, which amended the US constitution to allow the national prohibition of alcohol. (Again it’s telling that they didn’t believe anything short of a constitutional amendment could give the federal government the power to regulate people’s drug use.)

The results of alcohol prohibition have become the stuff of legend and popular films: Powerful criminal organizations sprang up, arrested offenders clogged the system and corruption of the police and courts became rampant as a large portion of the population simply ignored the laws. There is some evidence that during prohibition, the average age of onset of alcohol use went down significantly, possibly because since alcohol sale was illegal in the first place, age restrictions on sales no longer applied. (A curious parallel can be seen today; young people take up using marijuana in greater percentages and at a younger age in the US than they do in the Netherlands, where marijuana is effectively legal but regulated.)

Alcohol prohibition was largely the work of religious conservatives who saw it as a way to combat the growing hedonism of urban dwellers; a return to old-time values and morality by attacking immoral lifestyles. The Protestant majority included in this category of ‘social undesirables’ the Catholics, whom they associated with alcohol use. Ironically, the passage of national prohibition marked the start of the Roaring Twenties, a period of drunken excess and sexual promiscuity that would not be equaled again until the Hippies.

Although alcohol use sharply declined immediately after the passage of prohibition, it immediately began an inexorable climb back up towards pre-ban usage levels. As public sentiment turned against prohibition, it became harder and harder to get juries to convict offenders. Finally admitting defeat, alcohol prohibition, America’s “noble experiment”, was repealed on December 5, 1933, and an unlucky thirteen years of government intrusion into people’s lives ended in wild drunken celebrations.

All Mexicans Are Crazy….

In the early 1900s, Mexican and Mexican-American families began an exodus out of their traditional homes in the far southern states, spreading out into the US in search of work and opportunity; the pursuit of the American Dream. The white majority was less than happy with this development, both out of simple bigotry and fear of competition for jobs (a concern that would only become greater when the prosperity of the “roaring twenties” gave way to the misery of the Great Depression.) As the Chinese had, the Hispanic population brought its own traditions, including different preferences in drugs: The conservative Midwest was about to be introduced to marijuana.

As had occurred with other drugs, the first prohibition laws were created on the state and local level. Some of these legislative sessions produced true gems of enlightenment, such as when a legislator in Texas expressed his support of marijuana prohibition by declaring that “All Mexicans are crazy and marijuana is what makes them crazy.” (Although “cannabis” was more traditional, legislators uniformly chose to call the plant “marihuana”, after the Mexican word for it.)

One of the more humorous results of the government taking the position that smoking marijuana caused homicidal insanity was that several murderers claimed their use of the drug as a defense, arguing that they could not be held responsible for what had clearly been an act committed under the insidious control of Reefer Madness. Several offenders were actually acquitted; after all, the government was backing their argument!

Federal marijuana prohibition was first enacted through various versions of the Uniform Narcotic Drug Acts (1927-1937.) In 1937, the Marijuana Tax Act of 1937 clarified and strengthened marijuana prohibition with what had by then become a rather shameless bit of unconstitutional fraud: They required that all marijuana be taxed and carry a tax stamp, establishing draconian punishments for ‘tax cheats’…and then refused to sell the tax stamps!

Marijuana prohibition, beyond being remarkable for the innocuousness of the drug in question, has been equally remarkable for the sheer extent of scientific fraud committed in order to justify its prohibition. Eager to rationalize this latest violation of the constitution as a necessary evil, Dr. James C. Munch, the US “Official Expert on Marihuana” testified that, upon testing the effects of marijuana on himself as part of his study into its dangers, he had experienced being transformed into a bat and flying about his office. Such a claim would be laughed at today, but this early-day Ricaurtism was eagerly believed by naive legislators.

• For more information, visit the excellent “An Inquiry into the Legal History of American Marijuana Prohibition.”

Damned Hippies! (World War II and the Rise of Psychedelic Culture.)

WW2 was more than just a memorable bit of ugliness; it also brought a social revolution to America. Before the war, the US was still largely rural. Boys grew up to be farmers, miners, and factory workers, colleges were for rich people’s kids, and women stayed home, cooking, cleaning, and raising their 2.5 children. God, country, and Mom’s apple pie: That was what we knew, and that was just fine by us. By the end of the war, however, a large percentage of our young men (over 16 million served in the armed forces) had seen a bit more of the world than they ever expected to (or perhaps wanted to.) They had swam in the waters of tropical paradises like Hawaii and the Philippine Islands, marched through bombed-out wastelands in Europe and the Japanese islands, bedded prostitutes of every conceivable national background, partied hard, fought hard, watched friends die by their sides, recovered from wounds in Australia and visited the architectural masterpieces of the Old World, all powered by morphine for their injuries, alcohol for their spirits, amphetamines and a daily ration of cigarettes for alertness. The innocent farm boys gathered up by the draft came back to the US far more worldly than any previous generation.

While many men fought abroad, other forces were at work at home. Women, who had long simply assumed that ‘a woman’s place is in the home’, had been called into service as a labor force, doing everything from packing rations to building the airplanes that would duel with German Messerschmitts and Japanese Zeros. “Free up a man to fight!” declared propaganda posters of the day. And so they did. Women became a vital part of American industry and commerce, realizing (often to their own surprise) that they really could do almost anything a man could do. Likewise, in the absence of their husbands who had volunteered or been drafted, they were forced to run all of the household affairs from home repairs to banking decisions to major purchases. They were working full time, earning their own paychecks, and spending them as they saw fit; what the early feminist thinkers had begun to accomplish through philosophy, the war had achieved through hardship.

Industry as well was transformed. During the war, the slumbering, mostly agricultural US became an industrial superpower, supplying American and allied forces with ships, tanks, aircraft, ammunition and almost everything else history’s largest military mobilization required. Huge factories sprang up almost overnight, mining and manufacturing technologies were pushed to the limits, chemistry, plastics and electronics underwent a huge surge in development. (The Teflon coating on your frying pan was actually developed for the WW2 US nuclear weapons program.)

Even when the war ended, the transformation of America was not complete. As part of the compensation package offered to military recruits, the US had created ‘the GI College Bill‘.  This program promised to help pay for college for any veteran who wanted to go. Traditionally, colleges were reserved for the elite; ‘normal folk’ had little use for them, and usually couldn’t afford them anyway. The GI Bill transformed that; college was now a very real possibility for millions of young men, and many of them took the government up on that offer. The factories and new technologies developed for the war were also suddenly ‘orphaned’, the crisis that had prompted their creation having passed. Transitioning from a wartime economy, they went looking for new markets and began churning out cars, household appliances, electronics, and anything else they could sell.

The net result of the war was thus not simply a new sense of national pride from our victory: It left the US with a lot of remarkably worldly, college educated young men, women with a new sense of their own strength and ability, and a massive industrial complex just begging to mass-produce anything the public wanted to buy. Modern America had taken root.

Reuniting young couples and invigorating the nation with a sense of its own limitless possibilities, WW2’s end also marked the start of the Baby Boom: A new, larger than ever generation of young Americans, being raised by parents that were more independent, prosperous, educated, and experienced in all manner of high culture and common debauchery than any generation before.

Whatever the reason, children who were raised during and after the war proved to be relatively liberal. Perhaps inspired by tales from their parents, many wanted to see the world, explore new ideas, experience new things and establish their own identities free from any cultural expectation. They gave birth to the modern civil rights and feminist movements, experimented with niche religions, openly expressed sexuality, and tried just about any drug they could get their hands on. It was the age of Yogis and birth control pills and marijuana…. “Turn on, tune in, drop out!” exhorted Timothy Leary, prophet of LSD. And many did.

This new movement of social openness and experimentation was not well received by the older generations. Instead of a new age of enlightenment (as the ‘Hippies’ saw themselves) the conservatives saw debauchery, sin, godlessness, communism, excess and indolence of the worst sorts. America, they were sure, was under attack by these terrible young people, who seemed more interested in pie-in-the-sky idealism than being productive solid citizens. Clearly, something was causing young people to run amuck…something was clouding their judgment, making them believe in awful things like racial equality, the legitimacy of sexual pleasure, and finding your own spiritual path. What could be responsible? Perhaps…the drugs they so openly used?

If the intent was to look non-threatening, the Hippies weren’t helping their cause. Calls to discover a new path to God through LSD and other psychedelic (‘mind opening’) drugs terrified conservative churches, convincing them that such things must be the work of Satan. As the Hippie movement grew, the combined desire to crush a perceived danger to the social order and the desire to make a statement of moral condemnation against ‘those druggies’ led to our current model of prohibition: The Controlled Substances Act of 1970, passed at the height of Hippie power.

The CSA banned virtually everything the government could think of: LSD, peyote, DMT, psilocybin mushrooms…all the popular psychedelics as well as the long-illegal drugs like marijuana, heroin, and cocaine. For this new system of prohibition, categories called Schedules were created. Schedule 1 contained drugs that were, according to the government, the most dangerous and addictive drugs known, drugs with no legitimate uses. It included heroin, marijuana…and all of the psychedelics.

Schedule 2 was to contain less addictive and dangerous drugs that had some medical use. Thus, morphine, cocaine, amphetamine, and methamphetamine (among others) were placed in S2, having been decreed by the government to be safer, less addictive, and of more legitimate value than things like marijuana and LSD. The lower Schedules (III-V) contained more benign materials with relatively modest addiction potential and recognized medical use.

The Analog Act and ‘Emergency Scheduling’

Lawmakers soon found themselves facing an unexpected problem: The emergence of new drugs that weren’t specifically Scheduled, and were thus legal. Ban one, and it seemed as though a new one popped right up in its place. To counter this phenomenon, they created the Analog Act, which allowed drugs that were only slightly different from outlawed drugs to be prosecuted as though they were the same as the illegal drug if the substance was sold for human consumption. This proved to be a fairly effective solution, and many people trying to skirt the law by selling close relatives of banned drugs on the streets have been successfully prosecuted under the Analog Act.

The real problem, however, turned out to be the Emergency Scheduling power that was granted to the Drug Enforcement Agency. Under this power, the DEA could declare virtually anything illegal with a 30-day notice. In theory they then have one year to decide what Schedule (if any) the newly banned drug belongs in; a decision that is supposedly based on careful consideration of all available evidence regarding the substance’s medical dangers, addiction potential, and medical uses. In practice, however, the process is quite simple: If a drug is being used recreationally and isn’t being sold by a major pharmaceutical company that will cut the DEA’s balls off for trying to take away a source of profit, then the drug in question will be placed in Schedule 1. Always.

Among the victims of this mechanism was this site’s main drug of interest: MDMA (Molly, ecstasy). The struggle to save MDMA from Schedule 1 proved to be unsuccessful, but is a source of insight into the process.

First, in order to be placed in Schedule 1, a drug must have no legitimate medical use. The DEA claimed that the only standard of whether or not a drug had medical value was decided solely by whether or not the FDA had approved it to be marketed for a specific illness. The medical community was probably rather surprised by this claim, as no doubt were the thousands of mental health professionals using MDMA in their practices. Indeed, even the FDA had rejected that idea in the past. Every court that heard the case agreed: A drug had medical use if any credible group of doctors believed it did, and MDMA met that standard.

The next requirement for placement in Schedule 1 was that a drug had to be highly addictive. This too proved to be a bit of a challenge, as not a single case of MDMA addiction was known at the time. As before, the courts agreed: MDMA was not highly addictive.

The final requirement for Schedule 1 was that a drug was so dangerous that it couldn’t be used safely under any circumstances. Beyond making the S1 status of marijuana all the more preposterous, this requirement for S1 proved to be a bit of a hurdle as well, since there wasn’t a single known case of death or injury from MDMA at the time. As before, the courts agreed the MDMA was reasonably safe, but this point of contention inspired the prohibitionists to create and champion the theory of MDMA neurotoxicity.)

In the end, it was the opinion of the court that MDMA could not be legally placed higher than Schedule 3, and declared that MDMA was still legal while ordering the DEA to reconsider their placement of MDMA in S1. The DEA essentially ignored the court’s order and placed it in Schedule 1 again. Ground down by years of expensive litigation, the private backers of the lawsuit against the DEA gave up, although the Scheduling could have been appealed again.

This case rather set the tone for all future ’emergency’ Schedulings: The Drug Enforcement Agency has reinvented and ignored the law as they see fit, and nobody has had the will or resources to fight them. Today, the same legally, constitutionally, and morally bankrupt standard of Scheduling is used: A drug is placed in Schedule 1 if it is used recreationally and they won’t have to fight a big corporation over it. All manner of drugs have fallen to the ’emergency’ Scheduling scythe, many of them with no history of causing addiction or even injury. Today, the DEA has its eye on Salvia divinorum, a rather unremarkable hallucinogen traditionally used by Mexican Indians. The official explanation given if and when they try to Schedule it should be a barrel of laughs…but laughs won’t stop these enemies of the Constitution.

Yet, all the news is not bad. Ultimately, the question of Prohibition as a social policy comes down to some rather basic questions of how dangerous drugs really are, and how we can most effectively protect people from those dangers. These are questions that science can answer, and indeed, is answering. On almost a weekly basis, some new study comes out finding that prohibition has failed, or that the drugs they have demonized aren’t nearly as sinister as we’ve been told. In the end, the drug war is winnable, and is being won…just not by the Prohibitionists.