Prohibition ’37

Act one, scene one of a three-act tragicomedy featuring the Treasury Department, US industries reliant on hemp, and the American Medical Association.

A radio is playing “Nice work if you can get it” as the NARRATOR takes his place on a stool. CONGRESSMEN and WITNESSES take seats at a table. A place card gives each man's name, party and state. Committee members include Democrats Robert Doughton of North Carolina, the chairman; Fred Vinson of Kentucky; John Dingell and Roy Woodruff of Michigan; John McCormack of Massachusetts; Jere Cooper of Tennesee; Claude Fuller of Arkansas; Wesley Disney of Oklahoma. The Republicans include David Lewis of Maryland; Daniel Reed and Frank Crowther of New York.

The first witness is Clinton Hester, a lawyer for the US Treasury Department, a pinstripe-suit type. The music fades.

NARRATOR: What you're about to hear is taken from the Congressional Record: “Tuesday, April 27, 1937. House of Representatives, Committee on Ways and Means, Hon. Robert L. Doughton, presiding.” Doughton was a Democrat from North Carolina. In 1937 the South was solidly Democratic —and segregationist. At the insistence of the Southerners in Congress, President Franklin Delano Roosevelt’s New Deal did not provide social security protection for farm workers and domestic servants —Black people, mainly.

DOUGHTON (while a PAGE distributes copies of the bill): The committee will come to order. The meeting this morning has been called for the purpose of considering HR 6385, introduced by me on April 14, 1937, a bill to “impose an occupational excise tax upon certain dealers in marijuana, to impose a transfer tax upon certain dealings in marijuana, and to safeguard the revenue therefrom by registry and recording.” This bill was introduced by me at the request of the Secretary of the Treasury.

NARRATOR: The Secretary of the Treasury in 1937 was Henry Morgenthau, a New York banker from a prominent German-Jewish family. Morgenthau had been a friend and supporter of Roosevelt before FDR became president. He’d been appointed to succeed Andrew Mellon, a WASP banker from Pittsburgh. When he arrived at Treasury, Morgenthau did not replace the ambitious young bureaucrat whom Mellon had put in charge of the Federal Bureau of Narcotics —Harry Anslinger.

DOUGHTON: Representatives of the Treasury Department are here this morning to explain the bill. Mr. Clinton Hester, assistant general counsel for the Treasury Department will be the first witness to be heard in behalf of the proposed legislation.

HESTER: Mr. Chairman and members of the Ways and Means Committee, for the past two years the Treasury Department has been making a study of the subject of marijuana. A drug which is found in the flowering tops, seeds and leaves of Indian hemp, and is now being used extensively by high school children in cigarettes. Its effect is deadly.

NARRATOR: The direct effects of inhaling or ingesting marijuana are not “deadly” and never have been. The very first statement from the government's first witness is untrue. But will anybody contradict him?

HESTER: The leading newspapers of the United States have recognized the seriousness of this problem and many of them have advocated Federal legislation to control the traffic in marijuana. In fact, several newspapers in the city of Washington have advocated such legislation. In a recent editorial the Washington Times stated:
"The marijuana cigarette is one of the most insidious of all forms of dope, largely because of the failure of the public to understand its fatal qualities. The nation is almost defenseless against it, having no federal laws to cope with it, and virtually no organized campaign for combating it. The result is tragic. School children are prey to peddlers who infest school neighborhoods. High school boys and girls buy the destructive weed without knowledge of its capacity for harm, and conscienceless dealers sell it with impunity. This is a national problem and it must have national attention. The fatal marijuana cigarette must be recognized as a deadly drug, and the American children must be protected against it.”

NARRATOR: And I thought it was only in our time that politicians started doing everything “for the children.” Guess not.

HESTER: As recently as the 17th of this month there appeared in the Washington Post an editorial on this subject, advocating the speedy enactment by Congress of this very bill. I quote: “It is time to wipe out the evil before its potentialities for national degeneracy become more apparent. The legislation just introduced in Congress by Representative Doughton would further this end. Its speedy passage is desirable.”

The purpose of House Resolution 6385 is to employ the federal taxing power, not only to raise revenue from the marijuana traffic, but also to discourage the current and widespread undesirable use of marijuana by smokers and drug addicts, and thus drive the traffic into channels where the plant will be put to valuable, industrial, medical, and scientific uses.

NARRATOR: In 1937, even the prohibitionists had to acknowledge marijuana's industrial, medical and scientific uses. Anticipating opposition from those who were then using the plant as fiber, medicine, birdseed, and oil, the Treasury Department was prepared to offer exemptions to a total prohibition. A similar strategy had worked in 1914 when Congress passed the Harrison Act, which placed a prohibitive tax and onerous paperwork on cocaine and opium transactions. But doctors, dentists, druggists, veterinarians, and researchers only had to pay a token dollar a year. This exemption mollified them politically.

HESTER: The Harrison Narcotics Act was designed to accomplish these same general objectives with reference to opium and coca leaves and their derivatives. That act required all legitimate handlers of narcotics to register, pay an occupational tax, and file information returns setting forth the details surrounding their use of the drugs. It further provided that no transfer of narcotics (with a few exceptions, notably by practitioners in their bona fide practice and druggists who dispense on prescription) could be made except upon written order forms. Since no one except registered persons could legally acquire these order forms and since illicit consumers were not eligible to register, the order-form requirement served the double purpose of publicizing transfers of narcotics and restricting them to legitimate users.

LEWIS: The treatment of this subject, so far as constitutional basis is concerned, is about the same as the Harrison Narcotic Act.... I was thinking you might add this drug as an amendment to the Harrison Narcotic Act.

NARRATOR: Congressman Lewis asks a good question: Why didn't the Treasury Department simply propose an addition to the Harrison Act, listing marijuana among the plants that had to be taxed? (Opening a copy of a book called “The Marijuana Conviction") According to those two law professors, Bonnie and Whitebread, in passing the Harrison Act, quote, Congress was attempting to do indirectly that which it believed it could not do directly: regulate the practice of medicine and the intrastate sale and possession of drugs... The Supreme Court had allowed Congress to get away with this ruse, but only by a five-to-four margin. Close quote.

HESTER: 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.

LEWIS: On what basis did the justices who dissented question the constitutionality of the Harrison Act?

HESTER: 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...

NARRATOR: The 10th Amendment leaves the regulation of medicine up to the states. So when the US Treasury Department decided to ban marijuana, they had to concoct a scheme to get around it. The slick lawyer who actually drafted the bill was an aide to Morgenthau named Herman Oliphant. His idea was to place a prohibitive sales tax on all marijuana sales —like the one Congress had recently slapped on machine guns. Unlike the Harrison Act, which created a subset of citizens entitled to buy and sell opium and cocaine, the marijuana prohibition bill entitled all citizens to buy and sell it —but only if they registered each transaction with the government and paid the huge tax.

HESTER: The proposed marijuana bill is something of a synthesis between the Harrison Act and the National Firearms Act... In order to obviate the possibility of an attack upon the constitutionality of this bill, it, like the National Firearms Act, permits the transfer of marijuana to non-registered persons upon the payment of a heavy transfer tax. The bill would permit the transfer of marijuana to anyone. It would impose a $100-an-ounce tax upon a transfer to a person who might use it for purposes which are dangerous and harmful to the public, just as the National Firearms Act permits a transfer of a machine-gun to anyone but imposes a $200 tax upon a transfer to a person who would be likely to put it to an illegal use. We've looked into the records in connection with the transfer tax in the Firearms Act, and we found that only one machine gun was purchased at $200 last year.

DINGELL: Legitimately?

HESTER: Yes. This bill would permit anyone to purchase marihuana 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.

NARRATOR: Is there anything new under the bureaucracy?