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The Forbidden Fruit and The Tree of Knowledge, An Inquiry into the Legal History of Marijuana Prohibition

THE FORBIDDEN FRUIT AND THE TREE OF KNOWLEDGE: AN INQUIRY INTO THE LEGAL HISTORY OF AMERICAN MARIJUANA PROHIBITION

Richard J. Bonnie & Charles H. Whitebread, II

II. THE ANTECEDENTS: CRIMINALIZATION OF NARCOTICS And ALCOHOL


The restrictive public policy with respect to marijuana, initiated in the late twenties and thirties and perpetuated to the present day, has never been an isolated phenomenon. At each stage of its development marijuana policy has been heavily influenced by other social issues because the drug has generally been linked with broader cultural patterns. Particularly at its inception, nationwide anti-marijuana legislation and its fate in the courts were inseparably linked with the earlier anti-narcotics and prohibition experiences. In fact, the facility with which marijuana policy was initiated directly related to the astoundingly sudden and extreme alteration of public narcotics and alcohol policy between 1900 and 1920.

In 1906 there were only three dry states, and judicial precedent abounded for the proposition that the right to possess alcohol for private consumption was an inalienable right. Yet, by 1917, twenty states had enacted prohibitionary legislation and most others were contemplating it. Two years later the eighteenth amendment and the Volstead Act had been enacted, and it was a federal crime to possess alcohol even for the purpose of drinking it within the home. Similarly, in 1900 only a handful of states in any way regulated traffic in narcotic drugs-opium, cocaine, morphine and heroin-even though all but heroin had been available for a decade or more. Yet, by 1914, all states had enacted some type of prohibitionary legislation, and the national government had enacted the Harrison Narcotic Act.

There were many major differences between the temperance and anti-narcotics movements. The temperance movement was a matter of vigorous public debate; the anti-narcotics movement was not. Temperance legislation was the product of a highly organized nationwide lobby; narcotics legislation was largely ad hoc. Temperance legislation was designed to eradicate known evils resulting from alcohol abuse; narcotics legislation was largely anticipatory.

On the other hand, there were striking similarities between the two movements. Both were first directed against the evils of large scale use and only later against all use. Most of the rhetoric was the same: These euphoriants produced crime, pauperism and insanity. Both began on the state level and later secured significant congressional action. Both ultimately found favor with the courts, provoking interchangeable dissenting opinions.

We do not propose to unearth new truths about the events of this period. However, we do believe that a familiarity with the political and judicial response to the alcohol and narcotics problems is essential to an understanding of the eventual suppression of marijuana. We believe further that an understanding of the relation between public opinion and any sumptuary law is germane to a discussion of the predicament of current marijuana legislation. Finally, since much of the current debate about marijuana is focused on its harmful effects as compared with those of narcotics and alcohol, the evolution of public policy in those areas is particularly material.

A. A Review of the Temperance Movement

Although aggressive prohibition campaigns had been mounted in every state in 1851-69,1 and again in 1880-90, in 1903 only Maine (1884), Kansas (1880) and North Dakota (1889) were completely dry states.2 Ernest Cherrington, the chronicler par excellence of the Prohibition movement, blamed the failure of the first thrust in part on the intervention of the slavery question, which siphoned the moral fervor of the people from the temperance movement .4 The failure of the second campaign he attributed to the inability of the prohibition activists to compete politically with growing liquor interests that dominated state and local governments.5

By 1906, however, the progress of the anti-saloon arm of the temperance movement in local option contests" and the adoption of alcohol prohibition by the people of Oklahoma in a provision of their constitution ratified upon admission to statehood 7 signalled a new crusade for state prohibitionary legislation. The Oklahoma vote so "electrified the moral forces of other states" 8 that by 1913 six additional states had enacted statewide prohibition, and half of the remaining states were contemplating action.9

Perhaps the most significant development during this period occurred on the national level. The Supreme Court had earlier declared the police powers of the states, under which state prohibition laws were enacted, impotent to prevent importation of liquor from a wet state, of which there were still many, into a dry state and to stay the sale and delivery of such liquor to the buyer while in the original package."

After a congressional attempt to deal with the decision in 1890 aborted in the courts," the buyer of liquor shipped in interstate commerce still had the right to receive and therefore to use such liquor. But in 1913 Congress, by the Webb-Kenyon Act, 12 filled the gap by prohibiting the shipment of liquor from one state to another to be used in violation of the laws of the latter; dry states could thus enforce their prohibition laws The mere passage of this law, according to against imported liquor.13

Cherrington, committed Congress to a policy that recognized the liquor traffic as an outlaw trade and indicated congressional desire to assist the dry states. 14

By November 1913, the tide had decidedly turned. More than half the population and 71 percent of the area of the United States were under prohibitionary laws.", Accordingly, the Fifteenth National Convention of the Anti-Saloon League of America unanimously endorsed immediate passage of National Constitutional Prohibition, whereupon the National Temperance Council was formed to combine the forces of the various temperance organizations toward this end. 16

By April 4, 1917, when a joint resolution was introduced in the Senate proposing an amendment to the Constitution prohibiting the manufacture, sale or transportation of intoxicating liquors within the United States for beverage purposes, 17 eighty percent of the territory of the United States was dry." Adopted by the constitutional majorities of both houses on December 18, 1917, the eighteenth amendment was ratified by the thirty-sixth state on January 16, 1919, and became effective on January 16, 1920.19 The Volstead Act," passed on October 28, 1919, pursuant to section 2 of the eighteenth amendment, outlawed possession of intoxicating liquor and therefore went significantly beyond the amendment itself.

The National Commission on Law Observance and Enforcement (the Wickersham Commission) attributed the passage of the eighteenth amendment not to public opposition to use of intoxicating beverages," although this was indeed the view of many of the leaders of the movement, but rather to antipathy to three major related evils: excessive consumption, political corruption and licensed saloons .22

Excessive use increased with the commercialization of production and distribution, and the expansion of saloons. Public resentment against the corrupting influence of the large liquor dealers in local politics, especially in the larger cities, tended to focus public attention on removing a cancer from the body politic. Finally, the institution that most strongly aroused public sentiment against liquor traffic was the licensed saloon, itself the symbol of intemperance and corruption. Owned or controlled by the large brewers or wholesalers, centers of political activity, homes of commercialized vice, the saloons were the betes noires of middle-American public opinion.

Because public opinion was largely opposed only to the socio-political consequences of massive liquor traffic, the enforcement of total abstinence under the eighteenth amendment became increasingly difficult. By 1931 it was an accepted fact that the upper and middle classes were "drinking in large numbers in quite frank disregard of the declared policy" of the Volstead Act."

The difficulties of securing compliance in such circumstances were aggravated by an inadequately designed enforcement strategy, 24, public resentment of the lawless tactics of prohibition agents, 25 and the lack of any sustained attempt at public education.26 For twelve years, however, millions of dollars were spent by federal and state governments in a fruitless effort to secure compliance with the law. Contemporary legal observers were particularly incensed by the dilution of constitutional protections, especially those provided by the fourth amendment, which was sanctioned by the courts in response to the "felt needs" of securing compliance through enforcement alone.27

Although many plans were advanced for changing the prohibition laws to mitigate the lawlessness rampant during this period, as late as 1931 even its most vigorous opponents felt that repeal of the eighteenth amendment was politically unfeasible.28 By 1932, however, public opinion had become so inflamed that the Democratic National Convention included repeal in the party platform."' Proposed by Congress on February 20, 1933, the twenty-first amendment was ratified by the thirty sixth state on December 5, 1933.

B. Anti-Narcotics Legislation to 1914

For our purposes, the major feature of temperance history is the responsiveness of the political process to public opinion. Whether or not a majority of Americans ever favored prohibition and whether or not the thrust of public opinion was ever accurately assessed, the public opinion process was attuned to the question for half a century. The alleged evils of alcohol abuse were matters of public knowledge; the proper governmental response was a subject of endless public debate; enactment and repeal of Prohibition were attended by widespread public participation.

In contrast, the early narcotics legislation was promulgated largely in a vacuum. Public and even professional ignorance of the effects of narcotic drugs contributed both to the dimensions of the problem and the nature of the legislated cure. The initial legislation was attended by no operation of the public opinion process, and instead generated a new public image of narcotics use. Only after this creation of a public perception occurred did the legislative approach comport with what we shall call latent public opinion.

1. Narcotics Use at the Turn of the Century: A Growing Problem

Although estimates have varied widely regarding the number of persons regularly using cocaine, opium, morphine and heroin during the pre-criminalization period, a sufficiently accurate figure can be drawn from a composite of contemporary surveys30 conducted between 1878 and 1924 .31 Estimates range from 182,215 (1884) to 782,118 (1913). We can safely estimate that there were between one-quarter and one-half million Americans addicted to narcotics around the turn of the century, comprising at least one percent of the population."

This rather large addict population included more females than males,33 more whites than blacks," and was confined neither to particular geographical regions nor to areas of high population concentrations Its most significant characteristic was its predominantly middle-class composition. Such attributes contrast starkly with the overwhelmingly black, lower-class male addict population that today inhabits our major urban centers.

Nineteenth century narcotics addiction was generally accidental. It is widely believed that medical addicts far outnumbered "kicks" or pleasure" addicts.37 Medical addiction stemmed from many sources. The first was overmedication. Civil War hospitals used opium and morphine freely and many veterans returned addicted to the drugs." Overmedication continued long after peace had been restored, due to the ready availability of these drugs with and sometimes without prescription. Since physicians were free to dispense these drugs as painkillers, persons given morphine first for legitimate therapeutic purposes often found themselves addicted. 39 This problem was exacerbated by the absence of restrictions upon druggists in refilling prescriptions containing extensive amounts of morphine and other opiates40 and by the introduction of the hypodermic syringe." The danger of overmedication increased in 1884 when cocaine was first introduced into the practice of medicine, and again in 1898 when an advance in German chemistry produced heroin, a partially synthetic morphine derivative. 42 For a time recommended as a treatment for morphine addiction ,43 heroin was also widely used for medicinal purposes.

A second source of accidental addiction was the use and popularity of patent medicines. Exotically labeled elixirs were advertised as general cures for- ills ranging from snake bite to melancholia. By containing up to thirty or forty percent morphine or opiates by volume, most patent medicines fulfilled their cure-all promises. However, a heavy price was exacted for such cures. In the absence of a requirement that contents be printed on the label, many an unsuspecting person became addicted without ever knowing the medicine that worked so well contained dangerous narcotics.44

Thus, careless prescription, incessant dispensation and hidden distribution of harmful drugs, the addictive effects of which were unknown until too late, fostered a large addict population which continued to increase in the early twentieth century. The increase in narcotics consumption, and therefore addiction, is well illustrated by the fact that 628,177 pounds of opiates were brought into this country in 1900, three times the amount imported thirty years earlier." Governmental and medical default explains the innocent nature of nineteenth century narcotics addiction and therefore its predominantly middle-class, nationwide character.

Not all addiction was accidental and private. It has been suggested that both medical knowledge and governmental regulation occurred only when each narcotic drug achieved a significant degree of "street" use. Our research supports this thesis, especially when "street" use is identified with the poor and with racial minorities. For example, opium, the drug first determined addictive and first identified with " pleasure" use, was the earliest prohibited. Legislation was first passed in the west coast states with newly immigrated Chinese populations among whom its use was prevalent. Heroin early achieved a widespread nonmedical or "street" use, especially in large urban centers among lower-class males."'

Nevertheless, addiction, even to opium, was predominantly involuntary until 1900. Professional attention was not focused directly on! Street" use until after two developments had significantly reduced the: possibility of medical addiction. First, the passage of the Pure Food and Drug Act48 in 1906 led to the demise of the patent medicine industry,: one of the primary causes of medical addiction. The labeling requirements of the Act, coupled with the later regulation of the production and distribution of the opiates, protected the public from the dangers of ignorance and virtually put the patent medicine industry out of business.49 Second, the discovery of new nonaddictive pain killers and anesthetics reduced the likelihood of post-operative addiction since physicians no longer needed to rely so heavily on morphine and opium. preparations to reduce and control pain.

2. State Legislative Response Before 1914

Although many states regulated narcotics indirectly through their general "poison laws" before 1870,50 the first anti-narcotics legislation did not appear until the last quarter of the nineteenth century. Most of the early legislation focused primarily on crime prevention" and public education regarding the dangers of drug use." The spread of opium smoking, especially in the western states with high oriental populations,53 provoked legislation in eighteen states between 1877 and 1911 designed to eradicate the practice either by preventing the operation of opium dens or by punishing the smoking of opium altogether. 54 As the addictive qualities of opium, cocaine, morphine and later heroin became known, primarily through observation of "street" use, concerned physicians finally began to agitate for stricter regulation than that provided by the "poison laws," even though such laws included opium and cocaine. Nevada enacted the first law prohibiting the retail sale of opiates for nonmedical purposes in 1877.55 In 1887, Oregon prohibited sale of cocaine without a prescription,"" and seven states followed suit by the turn of the century57 as did thirty-nine more by 1914.58 However, only twenty-nine states had included opiates in their prohibitionary legislation by 1914.59

With the exception of the Oregon schemes nineteenth century narcotic laws did not attempt to restrict or prohibit possession of narcotics, and were directed solely at distribution and sale. By 1913, only six states had prohibited the mere possession of restricted drugs by unauthorized persons .61 Three additional states prohibited possession with intent illegally to dispense such drugs .62

3. Watershed: The Passage of the Harrison Act

The first national legislation designed to regulate narcotics distribution, the 1909 "Act to Prohibit Importation and Use Of Opium"' 63 barred the importation of opium at other than specified ports and for other than medicinal use. The law further required the keeping of import records. The main force behind the passage of this statute was a desire to bring the United States into line with other nations that had signed international conventions against the use of the drug. 64 However, as state anti-narcotics legislation began to take on crusade proportions, pressure was generated for federal regulation of the importation of opium for medicinal purposes and of the interstate trade in cocaine, morphine and heroin. Consequently, the Harrison Act, until this year the foundation of federal law controlling narcotic drugs, was passed in 1914.65

The Harrison Act, a taxing measure, required registration and payment of an occupational tax by all persons who imported, produced, dealt in, sold or gave away opium, cocaine or their derivatives. The Act required all legitimate handlers of these narcotics to file returns setting forth in detail their use of the drugs. Each legitimate handler was required to use a special order form in making any transfer of narcotics. Since the Act also provided that only legitimate users could register and no one but a registered user could obtain the specified form, any transfer by an illegitimate user was a violation of the Act. For those failing to comply with its registration requirements, the original Harrison Act provided penalties of not more than $2,000 in fines or more than five years imprisonment, or both.

The passage of the Harrison Act was the culmination of increasing concern in the medical profession66 about the freedom with which physicians prescribed and druggists dispensed addictive drugs, primarily morphine and heroin. During the period of little or no regulation, the innocent addicts were regarded as victims of an unfortunate sickness in need of treatment; usually they could find a friendly physician or druggist willing to sustain their habits. The passage of the Harrison Act, however, by imposing a stamp of illegitimacy on most narcotics use, fostered an image previously associated primarily with opium that of the degenerate dope fiend with immoral proclivities. As the regulation of physicians and druggists became more stringent, especially after the Supreme Court held that prevention of withdrawal was not a legitimate medical use that a prescription to an unregistered person,67 this image fulfilled itself. All addicts, whether accidental or pleasure-seeking, were shut off from their supply and had to turn underground to purchase the drugs. Inflated underground prices often provoked criminal activity and this activity in turn evoked in the public a moral response,, cementing the link between iniquity and. drug addiction.68

The early clinical experiments dealing with narcotics addiction were inevitable victims of enforcement of the Act." The concept that underlay the clinical effort-that addiction was a medical problem to be dealt with by sustaining the addict cheaply while trying to induce gentle withdrawal-was antithetical to the attitude provoking the criminal classification of unlawful possessors of narcotic drugs." Clinics were run .in such cities as New York, Shreveport and Jacksonville," but by 1923 all were closed, thus removing still another legitimate source of supply for the addict. Again, the crimes committed to enable these people to tap I the illicit sources increased public hysteria and misunderstanding 72 about the link between the opiates and crime.

Another result of the physicians' resignation to pressure was that addicts to the opiates began to commit petty crimes in order to secure the drugs which could prevent their suffering. These inevitable law-induced crimes greatly accentuated the general public belief that opiates had some inherent sinister property which could change normal people into moral perverts and criminals.

In addition to redefining the public conception of narcotic addiction in a way that would not be seriously challenged for half a century, the Harrison Act also provided a strange model for the administration of narcotics laws which would significantly affect future developments' Drafted as a tax law rather than an outright criminal statute, the Act was intended to do indirectly what Congress believed it could not do directly-regulate possession and sale of the opiates. Indeed, congressional caution was justified. A five-to-four decision by the Supreme Court in the 1903 Lottery Case73 suggested what later became fact-the Court, as self-appointed arbiter of the federal system, would plant the tenth amendment in the path of congressional regulation of "local" affairs. That direct regulation of medical practice was indeed considered beyond congressional power under the commerce clause is clearly indicated in contemporary opinions. First, in its 1918 decision in Hammer V. Dagenhart,74 the Court held the Child Labor Act unconstitutional. Second, the Court ultimately upheld the Harrison Act as a valid exercise of the taxing power 75 only by a five-to-four margin. Finally, there is some fairly explicit language about congressional regulation of medical practice in subsequent Harrison Act opinions.76

This indirect regulation of narcotics traffic under the pretext of raising revenue had a number of significant consequences. First, since the Act could not penalize users or addiction directly, there was an immediate need for complementary residual state legislation in order to deal effectively with the drug problem. Second, the enforcement of the Act was necessarily assigned to the Internal Revenue Service in the Treasury Department.

The first enforcement agency for the Harrison Act was the Narcotics Division of the Prohibition Unit of the Internal Revenue Service created in 1920.77 This division was incorporated in the Prohibition Bureau which was created in 1927 .78 In 1930, the enforcement of the narcotics laws was severed from the Bureau of Prohibition and established as the separate Bureau of Narcotics in the Treasury Department .79 The existence of this separate agency anxious to fulfill its role as crusader against the evils of narcotics has done as much as any single factor to influence the course of drug regulation from 1930 to 1970." Although the impact of the Bureau on the passage of the Uniform Narcotic Drug Act and the Marihuana Tax Act will be explained in detail in subsequent sections, it is important here to note that the existence of a separate bureau having responsibility only for narcotics enforcement and for educating the public on drug problems inevitably led to a particularly prosecutorial view of the narcotics addict. Moreover, this creation of the Bureau separate from the newly created FBI in the justice Department unnecessarily bifurcated federal law enforcement operations in this area.

C. The Judicial Role and the Constitutional Framework:

The Police Power and Intoxicant Prohibition to 1920

It is not novel to suggest that the fate of contemporary constitutional challenges to marijuana prohibition depends in part on a judicial reading of public opinion as well as on the availability of a constitutional peg on which to hang an "activist" judicial inquiry. Since contextual pressure and analytical conflict were also central elements of the 'Judicial response to alcohol and narcotics prohibition between 1850 and 1920, it is worthwhile to trace that response.

As in today's court battles over marijuana laws, the clash then was between two polar constitutional concepts-the police powers of the state and allegedly "fundamental" personal constitutional rights. The conflict opened on state constitutional grounds and was continued in the realm of the fourteenth amendment. On the issues of alcohol and "hard" narcotics, the police power was triumphant. In the light of the comparisons drawn in current constitutional arguments among marijuana , alcohol and narcotics, an inquiry into the long struggle is informative.

1. Phase One: Prohibition of Sale and Manufacture of Alcohol

During the first wave of prohibitionist legislation in the 1850's, thirteen en states outlawed manufacture" and sale of intoxicating beverages." The constitutionality of such laws under the commerce clause of the Federal Constitution had been presaged in the License Case83 in 1847, where in six separate opinions the Supreme Court upheld Massachusetts, New Hampshire and Rhode Island laws regulating wholesale and retail sales of liquor. Chief Justice Taney's famous dictum stated:

And if any State deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing, in the constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting, it altogether, if it thinks proper.84

Armed with this pronouncement, the courts of eight states rebuffed challenges under their own constitutions." Some of these decisions gave scant attention to the constitutional argument but simply defined the police power broad terms86 and perhaps cited the Taney dictum.

However, the rationale and rhetoric of those decisions squarely rejecting the constitutional objections merit a detailed comparison with that of two decisions, in New York88 and Indiana89, declaring the statutes void.

Even the opponents of the laws acknowledged the potential public evils of intemperance90crime, pauperism and vice-the eradication of which was the objective of prohibitionary legislation. Yet they argued that the means employed to accomplish this end-prevention of sale was beyond the police power. Alcohol had admittedly beneficial use91 and was harmful only when abused.92 In order to eliminate it from channels of commerce, thereby depriving its owners of a -fundamental incident of ownership-the right to sell93 -a more pernicious character had to be shown. 94 Accordingly, the public benefit did not justify the restriction of private rights. The criminalization of sale of alcohol beverages constituted a deprivation of "property" without due process;95 or, failing that, it constituted an infringement of the inalienable right of 1ife, liberty And the pursuit of happiness rooted in the precepts of natural justice that the people reserved to themselves when they entered into the social compact.96 New York, in Wynehamer v. People,97 accepted .the due process argument, at least with respect to alcohol lawfully acquired, and Indiana endorsed the inalienable rights argument in Beebe v. State.98

The virtues of judicial restraint were vehemently defended in the decisions rejecting these arguments: The courts uniformly refused to interfere with the discretionary exercise of the police power in the absence of a specific constitutional prohibition. The Vermont Supreme Court view was typical:

The legislature in passing the law in question doubtless supposed that the traffic and drinking of intoxicating liquors went hand in hand ... and that, by cutting off the one, the other would also fall with it. Whether the drinking of intoxicating liquors tends to produce intemperance and whether the intemperance is a gangrene, tending to corrupt the moral health of the body politic, and to produce misery and lamentation; and whether the law in question is well calculated to cut off or mitigate the evils supposed to flow directly from intemperance and indirectly from the traffic in intoxicating liquors, were questions to be settled by the lawmaking power; and their decision in this respect is final and not to be reviewed by us.99

Under this view, societal self-protection, the essence of the police power, is broadly defined.100 So long as the legislature determines that the use of alcoholic beverages exerts an adverse effect on public, health, safety or morals, the courts may question neither the factual determination nor the means employed to restrict that use. In answer to the argument that the courts have a special obligation to review the relation between means and ends where personal liberties are curtailed, these courts disavowed any power "to annul a legislative Act upon higher grounds than those of express constitutional restriction," 101 or, after assuming for sake of argument the existence of such power, they declined to exercise It.102 In response to the argument accepted by Judge Comstock in Wynehamer v. New York-that prohibition of sale of legally acquired alcohol was a deprivation of property without due process of law-most courts distinguished Wynehamer on its facts,103 held that no essential "property" right had been violated,"" or construed "due process" to refer only to due procedure and not to the "power ... to create and define an offense." 105

Two polar conceptions of the scope of 'Judicial review clashed over a subject of intense public interest. The immediate question was settled in favor of the constitutionality of prohibiting manufacture and sale of alcoholic beverages; in fact, the Indiana court itself disavowed its contrary decision in Beebe three years after rendering it.106 However, the jurisprudential dialogue107 had merely begun. Today, Wynehamer is regarded as the initial step, on the road to the vested rights conception of due process. Similarly, Beebe is the philosophical ancestor of all challenges to prohibition of intoxicants alcohol, narcotics, and marijuana.108

With the passage of the fourteenth amendment, the Supreme Court was called upon to determine whether prohibitionary exercises of the state police powers were now limited by federal law. The battle fought in the 1850's on state constitutional grounds was refought in the 1870's and 80's on federal territory-with the same outcome. In a series of cases culminating in Mugler v. Kansas,109 it slowly became settled that the manufacturer or seller of intoxicating liquors had no constitutional rights under either the privileges and immunities or due process clauses that could prevent the operation of the police power of the state, regardless whether the liquor was bought or manufactured before passage of the law or even whether it was manufactured solely for personal use.110

Thus, as a matter of both state and federal constitutional law, the courts required no more, and probably less, than that legislation be designed to retard a public evil-here pauperism and crime-and be rationally related to that end."' Absent a specific constitutional limitation, it did not concern the courts that such regulations affronted personal liberty and property rights. The theoretical Justification of incidental curtailment of private liberties in the public interest was that the legislature must conduct the balancing; if the balance is unsound, the law will be repealed. Indeed, the courts were probably willing to indulge that presumption as a practical matter since the passage of the prohibition laws was preceded by vigorous public debate. In fact, the public opinion process did work in reaction to these curtailments of private liberty, and most such laws were subsequently repealed"' in the ensuing decade.

2. Phase Two: Probibition of Sale of Opium

As noted above, the first prohibitionary narcotics legislation was enacted on the west coast in the 1880's in order to prohibit sale and distribution of opium for nonmedical purposes. The racial overtonesof this legislation were self-consciously acknowledged by the initial Oregon and Nevada decisions. Sustaining the conviction of an alien for selling opium in Ex parte Yung Jon,"' the Oregon district court noted:

Smoking opium is not our vice, and therefore it may be that this legislation proceeds more from a desire to vex and annoy the "Heathen Chinee" in this respect, than to protect the people from the evil habit. But the motives of legislators cannot be the subject of judicial investigation for the purpose of affecting the validity of their acts. 114

The opium laws were attacked on precisely the same grounds as had been the alcohol prohibition legislation. The Nevada court had no trouble in State v. Ah Chew;115 it simply cited the License Cases, the Delaware decision sustaining prohibition of alcohol sale, and distinguished Wynebamer as holding only that the sale of lawfully acquired property could not be prohibited. Within this framework, the result was obvious:

It is not denied that the indiscriminate use of opium . . . tends in a much greater degree to demoralize the persons using it, to dull the moral senses, to foster vice and produce crime, than the sale of intoxicating drinks. If such is its tendency, it should not have unrestrained license to produce such disastrous results.... Under the police power . . . in the interest of good morals, the good order and peace of society, for the prevention of crime, misery and want, the legislature has authority to place such restrictions upon sale or disposal of opium a,, will mitigate, if not suppress, its evils to society.116

The Oregon court, in the Yung Jon decision five years later, did not take the easy way out. The court was apparently not disposed to imply that sale of previously owned alcohol and cigarettes could be prohibited, and thus reject outright the Wynebamer conception of due process;117 instead it chose to hold that sale of opium for nonmedical purposes was not an incident of ownership and, since the law did not prohibit sale for medical purposes, no property right was deprived. Not as cautious as his brethren, Judge Deady inquired more actively into the nature of opium before upholding the legislation. Whether a legislative act is "prohibitory" (and by implication whether it violates the due process clause) "must depend on circumstances, and particularly the character of the article, and the uses and purposes to which it has generally been applied in the community." 118 He then noted that opium was primarily a medicinal drug; that although used in the East for centuries as an intoxicant, that use was new in the United States and confined primarily to the Chinese; that it was classed as a poison and was less easily detected than alcoholic intoxication, "which it is said to replace where law and custom have made the latter disreputable;" and that its "evil effects" were manifest upon the nervous and digestive systems, resembling delirium tremens. Thus, there was no longstanding regard of opium as a legitimate article of property except for medical use. Accordingly, the act does not in effect prohibit the disposition of the drug, but allows it under such circumstances, and on such conditions, as will, according to the general practice and opinions of the country, prevent its improper and harmful use.119

Thus, whatever the judicial propensity to limit the police power in the interest of property rights, prohibition of traffic in opium-worse than alcohol and confined to aliens-violated no implied or express constitutional limitations.

3. Phase Three: Prohibition of Possession of Alcohol to 1915

At this stage of constitutional jurisprudence, criminalization of possession or consumption of alcohol or narcotics was arguably a deprivation of property without due process of law. The first wave of prohibition cases had held only that the right to sell even previously acquired liquor was not an essential element of ownership. They had not held that the state could forbid the essential attribute of ownership-the right to use. In fact, many courts had expressly noted that alcohol was still a legitimate article of property.120

Until 1915 the weight of authority was that it was beyond the police power to prohibit mere possession of alcoholic beverages unless the quantity Justified an inference that they were held for sale. A few cases so held ;121 many courts so stated in dictum, while holding the laws either in conflict with particular constitutional provisions regarding the "sale" of liquor"122 or in excess of the power of municipal corporations;" and many contemporary commentators so stated .124

Although the due process rationale was sometimes employed, 125 the preferred approach was "inherent" limitation. In his 1904 treatise, Police Power, Ernst Freund premised the "inherent" limitation of noninterference with purely private conduct not on any inalienable natural right but on the requirement that interference be justified on grounds of the public welfare."' This and the "practical difficulties of enforcement, coupled with the constitutional prohibition of unreasonable searches," 127 would sufficiently deter legislative abuse.

Absent the addition of a natural rights notion, however, this decisional frame becomes ambivalent on the dispositive question in an adjudication questioning such legislative "abuse": Can the mere "policy" of nonintervention with private conduct a more rigorous judicial inquiry into the relation between the prohibited private acts and the alleged public evil? If it cannot, the constitutional attack on prohibition of possession is no stronger than that on prohibition of sale. If it can, is not the judicial role subject to the same charge of usurpation as it would be if the courts employed a pure natural rights approach?

In any event, when the courts first confronted possession prohibition, the rhetoric was varied-due process, 128 natural rights"' and private liberty""-but the approach was the same-a refusal to accept the legislative findings as to the relation between private act and public harm and a refusal to defer to the legislative balance of private liberty and public need. For example, in one of the leading cases, Commonwealth v. Campbell,"' the Court of Appeals of Kentucky cited Cooley, Mill, and Blackstone for the proposition that

[i]t is not within the competency of government to invade the privacy of the citizen's life and to regulate his conduct in matters in which he alone is concerned, or to prohibit him any liberty the exercise of which will not directly injure society.132

Noting next that defendant was "not charged with having the liquor in his possession for the purpose of selling it, or even giving it to another" and that "ownership and possession cannot be denied when that ownership and possession is not in itself injurious to the public," 133 the court concluded that

the right to use liquor for one's own comfort, if the use is without direct injury to the public, is one of the citizen's natural and inalienable rights .... We hold that the police power-vague and wide and undefined as it is-has limits . . . 134

The key to this reasoning, of course, is the court's insistence that the injury be direct as measured according to a Judicial yardstick. Although the court devoted little attention to the question, it implicitly rejected arguments that the only way to exorcize the public evils attending excessive use and adequately to enforce prohibitions against sale was to prevent any private use at all. The court impliedly held that the posited connection, albeit rational, was "remote" or "indirect" or "unreasonable" and therefore entitled to no deference. 135

4. Phase Four: Prohibition of Possession of Narcotics

This active 'Judicial role in alcohol cases should be compared with the courts' simultaneous refusals to second-guess legislative "findings" with regard to the criminalization of possession of opium. In a series of cases decided in Washington, Oregon and California136 in 1890, 1896 and 1911 respectively, courts held that the relation between narcotics use and public harm was to be drawn by the legislature.

In answer to the argument, accepted in the alcohol cases, that despite the absence of explicit constitutional limitations the police power of prohibition was inherently limited to acts which "involve direct and immediate injury to another," 137 the courts replied in predictable fashion: The state may prevent a weak man from doing injury to himself if it determines that such injury may cause the individual to become a "burden on society;" "' the state could find that excessive use of opium, an active poison, would debase the moral and economic welfare of' the society by causing ill health, pauperism and insanity;... the state could find that the potential for and evils attending excessive use demand a prohibition also of nondeleterious moderate use."' Accordingly, in the words of the Supreme Court of Washington,

[i]t is for the legislature to place on foot the inquiry as to just in what degree the use is injurious; to collate all the information and to make all the needful and necessary calculations. These are questions of fact with which the court cannot deal. The constitutionality of laws is not thus to be determined .141

The California court had more difficulty with the argument that punishment of possession of alcohol had been held beyond the police power. Despite its rhetoric regarding the wide bounds of legislative fact-finding, the court actually made its own determination that public injury from private abuse was more likely with narcotics than alcohol. The lower court had said so overtly:

But liquor is used daily in this and other countries as a beverage, moderately and without harm, by countless thousands ... ; whereas it appears there is no such thing as moderation in the use of opium. Once the habit is formed the desire for it is insatiable, and its use is invariably disastrous. 142

The California Supreme Court shied away:

We do not understand this to have been intended to declare an established or conceded fact. So interpreted, the expression would be, perhaps unduly sweeping. But the validity of legislation which would be necessary or proper under a given state of facts does not depend upon the actual existence of the supposed facts. It is enough if the law-making body may rationally believe such facts to be established. If the belief that the use of opium, once begun, almost ]Inevitably leads to excess may be entertained by reasonable men-and we do not doubt that it may-such belief affords a sufficient 'Justification for applying to opium restrictions which might be unduly burdensome in the case of other substances, as, for example, intoxicating liquors, the use of which may fairly be regarded as less dangerous to their users or to the public. 143

What the court said is unobjectionable. What it did not say, however, is significant. This reasoning implies that if the legislature should determine that the potential for excessive use of alcohol-and consequently for the public evils of pauperism, crime and insanity-is great enough to prohibit all use, that judgment would have to stand. Probably not intending so to suggest, the court really held that it thought that opium use was more likely adversely to affect the public welfare than alcohol use; accordingly, paternal criminal legislation was "reasonable" in the former case and not in the latter, even though they were identically "Indirect." It helped, perhaps, that the legislature was not telling the and his white, middle-class colleagues that they shouldn't smoke opium, and that the objective was merely to prevent a few "Heathen Chinee" from hurting themselves through their stupidity and from spreading their nasty habit to the whites."'

The only astounding thing about the opium possession cases is that there was at least one dissenting opinion. In the Washington case, Ah Lim v. Territory,145 judge Scott, for himself and another judge, insisted on either a more conclusive demonstration that the private act of smoking opium "directly and clearly affected the public in some manner" or a more narrowly drawn statute. He catalogued the alleged public justifications:

That smoking or inhaling opium injures the health of the individual, and in this way weakens the state; that it tends to the increase of pauperism. That it destroys the moral sentiment and leads to the commission of crime. In other words, that it has an injurious effect upon the individual, and, consequently, results indirectly in an injury to the community. 146

After noting the insufficiency of all of the 'Justifications including the argument that the moderate desires of some must be sacrificed to prevent abuse by others, 147 then concluded:

[The Act] is altogether too sweeping in its terms. I make no question but that the habit of smoking opium may be repulsive and degrading. That its effect would be to shatter the nerves and destroy the intellect; and that it may tend to the increase of pauperism and crime. But there is a vast difference between the commission of a single act, and a confirmed habit. There is a distinction to be recognized between the use and abuse of any article or substance.... If this act must be held valid it is hard to conceive of any legislative action affecting the personal conduct, or privileges of the individual citizen. that must not be upheld. . . . The prohibited act cannot affect the public in any way except through the primary personal injury to the individual, if it occasions him any injury. It looks like a new and extreme step under our government in the field of legislation, if it really was passed for any of the purposes upon which that character of legislation can be sustained, if at all. 148

The sanctity of "the personal conduct or privileges of the individual " had suffered first blow. The knockout was only a few citizen rounds away.

5. Phase Five: Prohibition of Possession of Alcohol After 1915

The year 1915 was the watershed year for prohibitionists in the courts.

By 1913, the tide had finally turned in the state legislatures, many of which prohibited possession of more than a certain quantity of alcoholic beverages. The first of these statutes to reach the courts was that of Alabama in Southern Express Co. v. Whittle.149

Overruling its earlier decision in Eidge v. City of Bessemer,150 one of the leading cases during the earlier phase, the Alabama court swept away all restraints on the police power. So long as the legislation was directed at some legitimate purpose and was not arbitrary, the court should not interfere.151 Whether or not the Supreme Court had so intended, the Alabama court, like other state courts, relied heavily on justice Harlan's opinion in Mugler v. Kansas,152 and gave its legislature a blank check when exercising police powers:

If the right of common law to manufacture an intoxicating liquor for one's own personal use, out of one's own materials by the application of one's own personal effort, may be forbidden by appropriate legislation under the police power, as was expressly ruled in Mugler v. Kansas . . . . it cannot be logically or soundly asserted that the receipt or possession of more than a specified quantity at one time may not be forbidden by a statute . . . . 153

The alleged sanctity of private conduct gave the court little pause; this was just I one of a number of instances

where ancillary prohibitions of acts and conduct, innocent in themselves, have been sustained and confirmed as an exercise of the police power of the state; and so upon the theory that some valid legislative purpose might be more certainly made effective, or that evasions of the laws might be prevented or hindered of accomplishment.154

Though the Alabama court did not do so, it could have cited the opium possession cases as authority. Most courts did.

The Alabama decision was quickly followed in Idaho155 and in nine other states.156 When the Idaho case, Crane v. Campbell,157 came before the Supreme Court, Justice McReynolds dealt the knockout blow:

As the state has the power . . . to prohibit [sale and manufacture], it may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective. And, considering the notorious difficulties always attendant upon efforts to suppress traffic in liquors, we are unable to say that the challenged inhibition of their possession was 'arbitrary and unreasonable or without proper relation to the legitimate legislative purposes 158

The principle noted by Freund,159 that the police power did not easily extend to matters of private conduct, was ignored:

[I] t clearly follows from our numerous decisions upholding prohibition legislation that the right to hold intoxicating liquors for personal use is not one of those fundamental privileges of a citizen of the United States which no State may abridge. A contrary view would be incompatible with the undoubted power to prevent manufacture, gift, sale, purchase or transportation of such articles-the only feasible ways of getting them. An assured right of possession would necessarily imply some adequate method to obtain not subject to destruction at the will of the State. 160

Given the restrictive interpretation of the privileges and immunities clause161 and the refusal to extend substantive due process outside the economic area, 162 there was no existing federal constitutional pigeonhole for "private conduct" as a principle of constitutional limitation. And on the state level the courts ignored the "'intrinsic limitation" argument and discarded the direct-indirect yardstick in the wake of the temperance movement.

The commentators were outraged. Again and again the courts were indicted for interpreting constitutional precepts to correspond with public opinion.163 The retreat on the temperance question coincided perfectly with the final success of the Prohibition movement. And the commentators were quite justified in so noting.

It was merely icing on the cake when the Supreme Court upheld the provision of the Volstead Act164 outlawing possession of intoxicating liquor. The Court predictably rebuffed165 an argument that it was beyond congressional power under section 2 of the eighteenth amendment to prohibit possession for personal consumption of liquor owned before the passage of the Act.166

6. A Postscript on the Police Power: The Cigarette Cases

Interestingly, the legislative solicitude for the health of the citizenry during the period under discussion also extended to the prohibition of cigarette smoking in several jurisdictions. In 1897, the General Assembly of Tennessee made it a misdemeanor to sell, give away or otherwise dispose of cigarettes or cigarette paper.167 The Supreme Court of Tennessee upheld the statute under the police power on the grounds that cigarettes were not legitimate articles of commerce, being "inherently bad and bad only." 168 The United States Supreme Court affirmed in Austin v. Tennessee,169 primarily on the authority of the alcohol and opium cases, noting that there need be only a rational basis for the legislative determination that the commodity is harmful to 'justify its prohibition.170 The Court did not even mention any objection based on deprivation of property rights or personal liberty.

The issue was posed more directly in Kentucky and Illinois cases171 regarding the validity of local ordinances prohibiting smoking of cigarettes "within the corporate limits" in one case and "in any street, alley, avenue ... park ... or [other] public place" in the other. Both courts held the ordinances unreasonable interferences with personal liberty.172

The argument that the ordinances were calculated to insure the public safety by preventing fire hazards was held to be too remote and the argument accepted in Austin regarding potential injury to the smoker's health apparently was not made or at least went unacknowledged by both courts.

These decisions, rendered in. 1911 and 1914, were probably consistent, under a direct-indirect injury to society theory, with Austin and with the alcohol and narcotics cases up to that time. The post-1915 alcohol possession cases, however, undermined any such distinction. insofar as it authorized a more active judicial inquiry into the relationship between the private conduct and the public need. At least at this stage of its development it may be fruitless to seek out a "neutral principle" beyond common sense regarding the undefined constitutional limitations on the police power. Professor Brooks Adams noted in 1913 that the scope of the police power could not be determined in advance by abstract reasoning. Hence. as, each litigation arose, the judges could follow no rule but the rule of common sense, and the Police Power, translated into plain English presently came to signify whatever, at the moment, the judges happened to think reasonable. Consequently, they began guessing at the drift of public opinion, as it percolated to them through the medium of their education and prejudices. Sometimes they guessed right and sometimes wrong, and when they guessed wrong they were cast aside, as appeared dramatically enough in the temperance agitation .173

And justice Holmes noted:

It may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.174

Whether the development of the Judicial response to exercises of the police power at the time was the result of the changing public opinion or a changing analytical framework, trends in that response were evident. It remains to be seen whether any trends are evident today to indicate how marijuana users will fare in the future.


Footnotes and References

1 E. CHERRINGTON, THE EVOLUTION OF PROHIBITION IN THE UNITED STATES OF AMERICA 135-45 (1920) [hereinafter cited as CHERRINGTON1.

21d. at 176-84.

31d. at 180-81; Safely, Growth of State Power Under Federal Constitution to Regulate Traffic in Intoxicating Liquors, 3 LOWAL. BULL. 221, 222 (1917).

4 CHERRINGTON139.

Id. at 181-82.

6 Id. at 280.

7 Id. at 280-81.

8 Id. at 281.

Id. at 284.

10 Leisy v. Hardin, 135 U.S. 100 (1890).

11Four months after Leisy Congress enacted the "Wilson Law," designed to make all intoxicating liquors subject "upon arrival" to the laws of the state into which they were sent. Act of Aug. 8, 1890, ch. 728, 26 Stat. 313. In Rhodes v. Iowa, 170 U.S. 412 (1898), however, the Supreme Court held that "upon arrival" meant after delivery to the consignee. Thus the right to receive the liquor and the attendant enforcement problems remained.

12Act of Mar. 1, 1913, ch. 90, 37 Stat. 699.

13 The Act was upheld in Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917).

14 CHERRINGToN, 285-86.

15 Id. at 320.

115 Id. at 321-22.

17 See H.R. Doc. No. 722, 71st Cong., 3d Sess. 5 (1931) thereinafter cited as WICKERSHAM COMMISSION J.

18 Id.

Is Id. at 8.

20 Act of Oct. 28, 1919, ch. 85, 41 Stat. 305.

21 In 1904 Ernst Freund had noted, quoting from an article on "personal liberty" in the Cyclopedia of Temperance and Prohibition:

Even the advocates of prohibition concede that the state has no concern with the private use of liquor. "The opponents of prohibition misstate the case by saying that the state has no right to declare what a man shall cat or drink. The state does not venture to make any such declaration.... It is not the private appetite or home customs of the citizen that the state undertakes to manage, but the liquor traffic. . . . If by abolishing the saloon the state makes it difficult for men to gratify their private appetites, there is no just reason for complaint."

E. FREuND, PoLicE POWER 484 (1904).

22 WICKERSHAM CommissioN 6-7.

23 Id. at 21. In 1929 President Hoover had devoted a major part of his inaugural address to the "disregard and disobedience" of the eighteenth amendment. He attributed to the ordinary citizen "a large responsibility" for a "dangerous expansion in the criminal elements." Attempting to generate moral support for the law, he chastised the citizenry:

No greater national service can be given by men and women of goodwill-who, I know, are not unmindful of the responsibilities of citizenship-than that they should, by their example, assist in stamping out crime and outlawry by refusing participation in and condemning all transactions with illegal liquor. Our whole


missing piece


28 F. BLACK, supra note 27, at 149-50.

29 R. CHilds, MAKING REPEAL WORK 12 (1947).

30 The earliest surveys employ a methodology much less sophisticated than those conducted after 1914. The later studies, however, suffer from a time lag which inevitably detracts from accuracy. In any event, taken together, these surveys adequately describe the contours of the phenomenon under consideration.

31 The earliest attempt at a compilation of addiction figures was undertaken by O. Marshall in 1878. Marshall, The Opium Habit in Michigan, 1878 MICH. STATE BD. OF
HEALTH ANN. REP. 61-73. From questionnaires sent to doctors, Marshall found 1,313 users of opium or morphine and concluded therefrom that there were 7,763 addicts in the state. Dr. Charles Terry later concluded that, if Marshall's figures were representative, total incidence of addiction in the United States in 1878 was 251,936. C. TERRY & M. PELLENS, THE OPIUM PROBLEM 15 (1928) [hereinafter cited as TERRY & PELLENS]. Marshall was unable fully to take into account the fact that the incidence of drug abuse in the cities was much higher than that in the rural areas he studied; accordingly, his figures probably underestimate the extent of addiction in the state.

In a similar study of Iowa in 1884, J. M. Hull found 5,732 addicts which, if representative, would reflect a national addict population of 182,215. Hull, The Opium Habit, 1885 IOWA STATE BD. OF HEALTH BIENNIAL REP. 535-45, quoted in TERRY & PELLENs 16-18.

In 1900 the author of a Vermont study sent 130 questionnaires to various druggists in an attempt to determine the monthly sales of various drugs. His 116 replies indicate that 3,300,000 doses of opium were sold every month, or enough for every person in Vermont over the age of 21 to receive 11/2 doses per day. Grinnel, A Review of Drug Consumption and Alcohol as Found in Proprietary Medicine, 23 MEDico-LEGAL J. 426 (1905), quoted in TERRY & PELLENs 21-23.

Perhaps the best pre-1914 estimate was made by Dr. Charles Perry who, as Health Officer of Jacksonville, Florida, compiled data for that city in 1913. He found that 541 persons, or .81% of the city's population, used opium or some preparation thereof in 1913. Nationwide, this incidence would be 782,118. 1913 JACKSONVILLE, FLA, BD. OF HEALTH ANN. REP., quoted in TERRY & PELLENs 25.

A researcher in 1915 found 2,370 registered addicts in Tennessee and put the national addict population at between 269,000 and 291,670. Brown, Enforcement of the Tennessee Anti-Narcotic Law, 5 Am. J. PUB. HEALTH 323-33 (1915), quoted in TERRY & PELLENs 27-29.

The first post-Harrison Act study, and perhaps the most reliable of all research during this period, was done by Lawrence Kolb and A. G. DuMez of the United States Public Health Service. Utilizing previously computed statistics together with information regarding the supply of narcotics imported into the United States, these authors concluded the addict population never exceeded 246,000. KOLB & DUMEz, THE PREVALENCE AND TREND OF DRUG ADDICTION IN THE UNITED STATES AND FACTORS INFLUENCING IT 1-20 (39 Public Health Reports No. 21) (May 23, 1924).

At the same time the Narcotic Division of the Prohibition Unit of the IRS estimated that there were more than 500,000 drug addicts in America. Narcotic Division of the Prohibition Unit, Bureau of Internal Revenue, Release (May 4, 1924), quoted in TERRY & PELLENs 42 n.25.

For more recent estimates of drug addiction in America, see W. ELDRIDGE, NARCOTICS AND THE LAW 49-103 (2d rev. ed. 1967); A. LINDESMITH, THE ADDICT AND THE LAW 99-134 (1965); ARTHUR D. LITTLE, INC., DRUG ABUSE AND LAW ENFORCEMENT 1l-21 (1967).

32 But see M. NYSWANDER, THE DRUG ADDICT AS A PATIENT 1-13 (1956) (the author suggests that perhaps I to 4% of American adult population was addicted in 1890). 33 Of the 1,313 addicts in Marshall's Michigan study, 803 were females and only
510 males. TERRY & PELLENS 11. In the Florida study, there were 228 men and 313 women. Id. at 25. Of the 2,370 registered addicts in the Tennessee study, 784 were men and 1,586 women. Id. at 27. A modern observer has concluded that there were at least as many and probably twice as many women addicts as men. O'Donnell, Patterns of Drug Abuse and Their Social Consequences, in DRUGS & YouTH 62, 64 (J. Whittenborn ed. 1969). For the last thirty years, male addicts have probably outnumbered female addicts by four or five to one. Id.

34 Of the 228 men included in the Florida study, 188 were white and 40 black; of the women 219 were white and 94 black. TERRY & PELLENs 25. At that time the white and black populations in Jacksonville were equal. Of those covered in the Tennessee study, 90% were white. Id. at 28.

35 The Michigan, Iowa and Vermont studies covered primarily rural areas.

36 See, e.g., Eberle, Report of Committee on Acquirement of Drug Habits, Am. J. PHARMACY, Oct. 1903, at 474-88. "While the increase is most evident with the lower classes, the statistics of institutes devoted to the cure of habitues show that their patients are principally drawn from those in the higher walks of life." Id, quoted in TERRY & PELLENs 23.

37 See, e.g., O'Donnell, supra note 3 3, at 64.

38 TERRY & PELLENs 69.

39Stanley, Morpbinism, 6 J. Crim. L. & CRIMINOLOGY 586, 588 (1915).

40 See the resolution of the Narcotics Control Association of California, 13 J. CRIM. L. & CRIMINOLOGY 126-27 (1922), calling for stricter laws regulating prescriptions and prescription order forms.

41 TERRY & PELLENs 66.

47

42 Brill, Recurrent Patterns in the History of Drug Dependence and Some Interpretations, in DRUGS AND YOUTH 18 (J. Whittenborn ed. 1969).

43 TERRY & PELLENs 76-82.

44 See S. ADAms, THE GREAT AMERICAN FRAUD (1913).

45 TERRY & PELLENs 44.

46 Id. at 84-87.

47 See H. KANE, OPIUM-SMOKING IN AMERICA AND CHINA (1882), in which the author supports the contention that by approximately 1890 narcotic addiction had become widespread among the respectable and professional classes. He states:

The practice [opium smoking] spread rapidly and quietly among this class of gamblers and prostitutes until the latter part of 1875, at which time the authorities became cognizant of the fact, and finding, upon investigation, that many women and young girls, as also young men of respectable family, were being induced to visit the dens ....

Quoted in TERRY & PELLENs 73.

48Ch. 3915, 34 Stat. 768 (1906).

49 "The peak of the patent medicine industry was reached just prior to the passage of the federal Pure Food and Drug Act in 1906." TERRY & PELLENs 75.

50 U.S. TREASURY DEPT, STATE LAWS RELATING TO THE CONTROL oF NARCOtic DRUGS AND THETREATMENT OFDRUG ADDICTION 1 (1931) [hereinafter cited as STATE LAWS].

51 The first drug legislation enacted in eight states outlawed the administering Of 2 narcotic drug to any person with the intent to facilitate the commission of a felony. These states were California (1872), Idaho (1887), New York (1897), North Dakota (1883), Pennsylvania (1901), South Dakota (1883), Utah (1876) and Wisconsin (1901). Id. at 1-2.

52 Twenty-two states made such legislation their first laws concerning the drug problem. Id. at 2.

53 Id. at 3-4.

54 States with such legislation were Arizona (1883), California (1881), Georgia (1895), Idaho (1887), Maryland (1886), Missouri (1911), Montana (1881), Nevada (1877), New Mexico (1887), North Dakota (1879), Ohio (1885), Pennsylvania (1883), South Dakota (1879), Utah (1880), Wisconsin (1891) and Wyoming (1882). Sec id., Pt. III.

55 Id. at S.

56 Id. at 5, 2 5 1.

57 Arizona (1899), Arkansas (1899), Colorado (1897), Illinois (1897), Mississippi (1900), Montana (1889) and New York (1893). Id., Pt. 111.

58 See id.

59 Id.

60 Id. at 251.

61 California (1909), Maine (1887), South Carolina (1911), Tennessee (1913), Wm Virginia (1911) and Wyoming (1903). Id., Pt. III.

62 Maryland (1912), Ohio (1913) and Virginia (1908). Id.

I" Act of Feb. 9, 1909, ch. 100, 35 Stat. 614, aS amended, 21 U.S.C. S 173 (1964). This act was revised by Act of Jan. 17, 1914, ch. 9, 38 Stat. 275, in the same wave of reform that produced the Harrison Act.

64 Hearings on the Importation and Use of Opium Before the House Comm. on Ways and Means, 61st Cong., 2d Sess. passim (1910).

65 38 Stat. 785 (1914), as amended, 26 U.S.C. S 4701-36 (1964).

66 See, eg., Stanley, supra note 39, at 587; Fixes Blame for Dope Fiend Evil, Boston Herald, Jan. 5, 1917.

67 Webb V. United States, 249 U.S. 96 (1919).

68 See Weber, Drugs and Crime, 44 A.B.A. REP. 527 (1919). Kolb, Factors That Have Influenced the Management and Treatment of Drug Addicts, in NARCOTIC DRUG ADDICTION PROBLEMS 23, _26 (R. Livingston ed. 1958) states:

See generally T. Duster, THE LEGISLATION OF MORALITY 3-28 (1970).

69 See generally A. LiNDEsmITH, supra note 31, at 135-61; King, Narcotic Drug Laws and Enforcement Policies, 22 LAW & CONTEMP. PROB. 113, 124-26 (1957); King, The Narcotics Bureau and the Harrison Act, 62 YALE L.J. 736 (1953); Note, Narcotics Regulation, 62 YALE L.J. 751, 784-87 (1953).

70 For a savage attack on the clinic system by a well-known supporter of the law enforcement model of the Harrison Act, see Stanley, Narcotic Drugs and Crime, 12 J. Crim. L. & CRIMINOLOGY 110 (1921).

71 Lindesmith reports that for a brief period of time from 1919 to 1923 some forty clinics of this type existed in the United States. A. Lindesmith, supra note 31, at 136,

72 The closing of the New York Clinic in 1919 was an especially potent factor in promoting hysteria about heroin. More than 7,400 addicts, about 90 percent Of whom were users of heroin, were thrown on the streets of the city. Driven to commit crimes, including those of narcotic violations, many of these addicts were arrested. The increased number of arrests was widely interpreted as an indication of moral deterioration due to narcotics instead of evidence of maladministration of what could have been a useful law. There were, of course, physicians who dissented both as to the wisdom of closing the clinics and as to the harmful effect of the drugs. Many of those who persisted in helping their patients were arrested. Kolb, supra note 68, at 27.

73 188 U.S. 3.21 (1903).

74 247 U.S. 251 (1918).

75 United States v. Doremus, 249 U.S. 86 (1919). The four dissenters asserted that "the statute was a mere attempt by Congress to exert a power not delegated, that is, the reserved police power of the States." Id. at 95. It is interesting to note, however, that a subsequent congressional attempt to regulate child labor through the taxing power was also invalidated. Bailey v. Drexel Furniture Co., 259 U.& 20 (1922).

76 justice McReynolds stated for the Court in Linder v. United States, 268 U.S. 5, 18 (1925): Obviously, direct control of medical practice in the States is beyond the power of the Federal Government. Incidental regulation of such practice by Congress through a taxing act cannot extend to matters plainly inappropriate and unnecessary to reasonable enforcement of a revenue measure.

The Court also held that the Harrison Act did not apply to mere possession of opium. In reaching this conclusion the Court pointed out that any congressional attempt to punish as a crime possession of any article produced in a state would raise the 'gravest questions of power. United States v. Jin Fuey Moy, 241 U.& 394, 401 (1916).

77 Schmeckebier, The Bureau of Prohibition, in BROOKINGS INST. FOR GOVT RESEARCH, SERVICE MONOGRAPH No. 57, at 143 (1929).

78 An Act to Create a Bureau of Customs and 2 Bureau of Prohibition in the Department of the Treasury, ch. 348, 44 Stat. 1381 (1927).

79 Act of June 14, 1930, ch. 488, 46 Star. 585.

80 See generally King, The Narcotics Bureau and the Harrison Act, 62 YALE L.J. 736 (1953).

81 The primary objective of prohibitionary legislation was to suppress all traffic in intoxicating beverages. Accordingly, most states prohibited both manufacture and sale. However, New Hampshire's law, in effect from 1855 through 1903, forbade only, sale.

82 Sixteen states passed prohibitionary legislation for the whole territory of the state. However, twelve of them had repealed this legislation by 1903, and a thirteenth, Maine, had repealed its statute before 1884 when prohibition was embodied in a constitutional amendment. E. FREuND, POLICE POWER 202, 203 (1904).

83 46 U.S. (5 How.) 504 (1847).

84 Id. at 577.

85 State v. Paul, 5 R.I. 185 (1858); State v. Wheeler, 25 Conn. 290 (1856); State v Allmond, 7 De]. 612 (1856); People v. Gallagher, 4 Mich. 244 (1856); Santo v. State' 2 Iowa 165 (1855); Lincoln v. Smith, 27 Vt. 328 (1855); People v. Hawley, 3 Mich. 330 (1854); Commonwealth v. Kendall, 66 Mass. (12 Cush.) 414 (1853); Jones v. People, 14-111. 196 (1852).

86 State v. Paul, 5 R.I. 185 (1858); Commonwealth v. Kendall, 66 Mass. (I 2 Cush.) 414 (1853); Jones v. People, 14 III. 196 (1852).

87 State v. Wheeler, 25 Conn. 290 (1856); State v. Allmond, 7 De]. 612 (1856); Santo v. State, 2 Iowa 165 (1855); Lincoln v. Smith, 27 Vt. 328 (1855).

88 Wynehamer v. People, 13 N.Y. 378 (1856). 89 Beebe v. State, 6 Ind. 501 (1855).

90 Dissenting in People v. Gallagher, 4 Mich. 244 (1856), justice Pratt noted' "That intemperance is a great evil, no sane man can doubt." Id. at 284. The Iowa court asserted:

There is no statistical or economical proposition better established, nor one to which a more general assent is given by reading and intelligent minds, than this, that the use of intoxicating liquors as a drink, is the cause. of more want, pauperism, suffering, crime and public expense, than any other cause-and perhaps it should be said, than all other causes combined.

Santo v. State, 2 Iowa 165, 190 (1855).

91 Dissenting in People v. Gallagher, 4 Mich. 244 (1856) , justice Pratt stated: "Spiritous liquors are necessary in the prosecution of many of the most valuable arts,' as well as for mechanical, manufacturing and medicinal purposes." Id. at 260.

92 The Indiana Court noted "as a matter of general knowledge . . . that the use of beer &c. as a beverage, is not necessarily hurtful, any more than the use of lemonade or ice cream.... It is the abuse, and not the use, of all these beverages that is hurtful." Beebe v. State, 6 Ind. 501, 519-20 (1855).

93 Justice Pratt reasoned:

Liquors, then, whether produced by fermentation or distillation, do legally constitute property of use and value; and the owner of this species of personal property, when lawfully acquired, is, upon every principle, . . . entitled to the possession and use of it. This legally includes the right of keeping, selling or giving it away, as the owner may deem proper. This is a natural primary right incident to ownership . . . .

People v. Gallagher, 4 Mich. 244, 263 (1856); accord, Wynehamer v. People, 13 N.Y. 378, 396-98 (1856) (Comstock, J.).

94 Said the Indiana Court:

[T]he legislature enacted the law in question upon the assumption that the manufacture and sale of beer . . . were necessarily destructive to the community, and in acting upon that assumption, in our judgment, has unwarrantably invaded the right to private property, and its use as a beverage and article of traffic.

. . . We repeat, the manufacture and sale and use of liquors are not necessarily hurtful, and this the Court has a right to judicially inquire into and act upon in deciding upon the validity of the law in question-in deciding . . . whether it is an indirect invasion of a right secured to the citizen by the Constitution. Beebe v. State, 6 Ind. 501, 520-21 (1855) (emphasis added).

95 In an opinion often cited as the first to invoke the substantive construction of "due process of law," judge Comstock in Wynchamer v. People, 13 N.Y. 378, 392-93, 398 (1856), stated:

To say that "the law of the land" or "due process of law", may mean the very act of legislation which deprives the citizen of his rights, privileges or property, leads to a simple absurdity. The Constitution would then mean, that no person shall be deprived of his property or rights unless the legislature shall pass a law to effectuate the wrong, and this would be throwing the restraint entirely away. The true interpretation of these constitutional phrases is, that where rights are acquired by the citizen under existing law, there is no power in any branch of the government to take them away.

When a law annihilates the value of property, and strips it of its attributes, by which alone it is distinguished as property, the owner is deprived of it according to the plainest interpretation, and certainly within the spirit of a constitutional provision intended expressly to shield private rights from the exercise of arbitrary power.

96 The Indiana court held the prohibitionary legislation in contravention of a provision in the state constitution declaring that "all men are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness." Beebe v. State, 6 Ind. 501, 510 (1855). Dissenting in People v. Gall2gher, 4 Mich. 244, 258 (1856), Justice Pratt conducted an identical natural rights inquiry without the benefit of Thomas Jefferson's penmanship.

97 13N.Y. 379 (1856).

98 6 Ind. 501 (1855).

99 Lincoln v. Smith, 27 Vt. 328, 337-38 (1855).

100 See State v. Guerney, 37 Me. 156, 161 (1853).

101 State v. Allmond, 7 Del. 612, 639 (1856); see Lincoln v. Smith, 27 Vt. 328, 338-39 (1855).

102 People v. Gallagher, 4 Mich. 244, 255 (1856); State v. Wheeler, 25 Conn. 290, 297-98 (1856).

103 State v. Wheeler, 25 Conn. 290, 297 (1856); State v. Allmond, 7 Del. 612, 642 (1856).

104 State v. Allmond, 7 Del. 612, 692 (1856).

105 State v. Paul, 5 R.I. 185, 197 (1858); Lincoln v. Smith, 27 Vt. 328, 360 (1855).

106 Meshmeier v. State, II Ind. 482 (1858).

107 In People v. Gallagher, 4 Mich. 244 (1856), the majority stated:

The legislature has said that . . . no man shall sell liquors to be used as a beverage, because by so doing, he inflicts injury on the public; but, says the defendant, irrespective of the evil, this right to sell liquors is a natural right, and you have no power to pass a law infringing that right. How does he prove it? Not by any adjudged cases; there are none, nor by anything in the constitution preserving to him this right; but it is to be determined by the nature and character of the right. . . . [The manner in which the determination is to be made is] a question very suitable and proper for the discussion and deliberation of a legislative body, but one which cannot be entertained by this court.

Id. at 257. judge Pratt replied:

If the doctrine is true that the legislature can, by the exercise of an implied discretionary power, pass any law not expressly inhibited by the constitution, then it is certain that a hundred laws may be enacted by that body, invading directly legitimate business pursuits, impairing and rendering worthless trades and occupations, and destroying the substantial value of private property, to the amount of millions of dollars. . . . But who, I ask, believes that the legislature possesses the power, or that the people, in their sovereignty, ever intended to confer on that body such unlimited omnipotence? As appears to me, no man of reason and reflection can believe it.

Id. at 277-79 (dissenting opinion).

108 Mere possession or consumption of alcohol was not prohibited during this phase of temperance legislation. Many of the courts were careful to allude to this feature and to note that forfeiture could result only from illegal possession-possession with intent to sell in violation of the law. See, e.g., Santo v. State, 2 Iowa 165 (1855); Commonwealth v. Kendall, 66 Mass. (12 Cush.) 414 (1853).

109 123 U.S. 623 (1887).

110 In Bartemeyer v. Iowa, 85 U.S. (18 Wall.) 129 (1873), the Supreme Court held that the prohibition of traffic in intoxicating drinks violates no privilege and immunity of United States citizenship; the Court avoided the question whether a law prohibiting sale of liquor owned before the law was passed was a deprivation of property without due process. Four years later, in Beer Co. v. Massachusetts, 97 U.S. 25 (1877), the Court sustained a prohibition law against a challenge under the obligation of contracts clauses but still deferred consideration of the Wynehamer question. In upholding the seizure and forfeiture of liquors belonging to the petitioner, justice Bradley stated: If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State. 97 U.S. at 32.

Finally, in Mugler v. Kansas, 123 U.S. 623 (1887), Wynebamer was slain. The Court sustained a conviction for selling beer manufactured before the passage of the law. The Court even held that, in order to make effective its regulations against sale, the State might forbid manufacture for personal use. Id. at 662. The only constitutional inhibitions remaining after Mugler emanated from the commerce power. For a discussion of the gradual elimination of these restrictions by congressional action, see Safely, Growth of State Power Under Federal Constitution to Regulate Traffic in Intoxicating Liquors, 3 IOWA L. BuLL. 221, 229-34 (1917).

111 In Mugler, justice Harlan stated:

There is no justification for holding that the State, under the guise merely of police regulations, is here aiming to deprive the citizen of his constitutional rights. . . . If, therefore, a state deems the absolute prohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medical, scientific, and manufacturing purposes, to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation. 123 U.S. at 662.

112 See note 82 supra.

113 28 F. 308 (D. Ore. 1886). The prisoner had been convicted in an Oregon court and was being heard on petition for habeas corpus.

114 Id. at 312.

115 16 Nev. 50 (1881).

116 Id. at 55-56.

117 The Supreme Court rejected it one year later in Mugler v. Kansas, 123 U.S. 623 (1887).

118 Ex parte Yung Jon, 28 F. 308, 311 (D. Ore. 1886).

119 Id. In defining property essentially in terms of habits of the community, judge Deady was leaving room for the "natural" rights argument with regard to alcohol and tobacco:

True, we permit the indiscriminate use of alcohol and tobacco, both of which are classed by science as poisons, and doubtless destroy many lives annually. But the people of this country have been accustomed to the manufacture and use of these for many generations, and they are produced and possessed under the common and long-standing impression that they are legitimate articles of property, which the owner is entitled to dispose of without any unusual restraint. . . . On the other hand, the use of opium, otherwise than as this act allows, as a medicine, has but little, if any, place in the experience or habits of the people of this country, save among a few aliens.

Id. at 311-12 (emphasis added).

120 State v. Wheeler, 25 Conn. 290 (1856); Lincoln v. Smith, 27 Vt. 328 (1855); Commonwealth v. Kendall, 66 Mass. (12 Cush.) 414 (1853); cf. State v. Clark, 28 N.H. 176, 181 (1854) (ordinance that prohibited using or keeping intoxicating liquors in any refreshment saloon or restaurant, "not unreasonable," since it did not "profess to prohibit either the use or sale of liquor altogether").

121 Ex parte Wilson, 6 Okla. Crim. 451, 119 P. 596 (1911); Titsworth v. State, 2 Okla. Crim. 268, 101 P. 288 (1909); State v. Williams, 146 N.C. 618, 61 S.F. 61 (1908); Ex parte Brown, 38 Tex. Crim. 295, 42 S.W. 554 (1897) (alternative holding). Contra, Cohen v. State, 7 Ga. App. 5, 65 S.E. 1096 (1909); Easley Town Council v. Pegg, 63 S.C. 98, 41 S.E. 18 (1902).

122 Commonwealth v. Campbell, 133 Ky. 50, 117 SAN,. 383 (1909); Ex parte Brown, 38 Tex. Crim. 295, 42 S.W. 554 (1897); State v. Gilman, 33 W. Va. 146, 10 S.E. 293 (1889).

123 Eidge v. City of Bessemer, 164 Ala. 599, 51 So. 246 (1909); Sullivan v. City of Oneida, 61 Ill. 242 (1871). But see Town of Selma v. Brewer, 9 Cal. App. 70, 98 P. 61 (Dist. Ct. App. 1908).

124 H. BLACK, INTOXICATING LIQUORS 50 (1892); E. FREUND, POLICE POWER 484 (1904); H. JOYCE, THE LAW RELATING T0 INTOXICATING LIQUORS 85 (1910); Rogers, "Life, Liberty and Liquor": A Note on the Police Power, 6 VA. L. Rev. 156, 174 (1919).

125 E.g., State v. Williams, 146 N.C. 618, 61 S.E. 61 (1908).

126 F. FREUND, P0LICE: POWER 486 (1904):

Under these circumstances it seems impossible to speak of a constitutional right of private consumption. There seems to be no direct judicial authority for declaring private acts exempt from the police power, and the universal tolerance With regard to them should be ascribed to policy. Like am, other exercise of the police power, control of private conduct would have to justify itself on grounds of the public welfare.

127 Id.

128 E.g., State v. Williams, 146 N.C. 618, 61 S.E. 61 (1908).

129 E.g., State v. Gilman, 33 W. Va. 146, 10 S.E. 283 (1889).

130 E.g., Eidge v. City of Bessemer, 164 Ala. 599, 51 So. 246 (1909); Commonwealth v. Campbell, 133 Ky. 50, 117 S.W. 383 (1909).

131 133 Ky. 50, 117 S.W. 383 (1909).

132 Id. at 58, 117 S.W. at 385 (emphasis added).

133 Id. at 63, 117 S.W. at 387.

134 Id. 63-64,117 S.W. at 387.

135 Similarly, in State v. Gilman, 33 W. Va. 146, 10 S.E. 283 (1889), the court stated:

It can hardly be questioned that the right to possess property is [an inalienable] right, and that that right embraces the privilege of a citizen to keep in his possession property for another. It is not denied that the keeping of property which is injurious to the lives, health, or comfort of all persons may be prohibited under the police power. . . . [I]t must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. But it does not follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exercise of the police Power of the State . . . .

The keeping of liquors in his possession by a person, whether for himself or for another, unless he does so for the illegal sale of it, or for some other improper purpose , can by no possibility injure or affect the health, morals, or safety of the public; and, therefore, the statute prohibiting such keeping in possession is not a legitimate exertion of the police power.

Id. at 148-49, 10 S.E. it 284 (emphasis added); accord, Ex parte Brown, 38 Tex. Crim. 795, 42 S.W. 554 (1897).

In Ex parte Wilson, 6 Okla. Crim. 451, 119 P. 596 (1911), the Court, after quoting extensively from Commonwealth v. Campbell, noted, "The only conclusion that we can legitimately arrive at is that the act in question is not within a reasonable exercise of the police powers of the state-is unconstitutional and void." 6 Okla. Crim. at 475, 119 P. at 606 (emphasis added). Finally, the Alabama Supreme Court stated, in striking down a local ordinance prohibiting possession by beverage dealers of alcoholic beverages:

[The ordinance] can be justified only, if at all, on the ground that it sustains some reasonable relation to the prohibition law in the way of preventing evasions of that law by trick, artifice, or subterfuge under guise of which that 12W is violated. But it has no such relation. It undertakes to prohibit the keeping if) any quantity and for any purpose, however innocent, of intoxicating liquors and beverages in places which are innocent in themselves. Eidge v. City of Bessemer, 164 Ala. 599, 606, 51 So. 246, 249 (1909).

136 Ex parte Yun Quong, 159 Cal. 508, 114 P. 835 (1911); Luck v. Sears, 29 Ore. 421, 44 P. 693 (1896); Ah Lim v. Territory, I Wash. 156, 24 P. 588 (1890).

137 Ah Lim v. Territory, I Wash. 156, 163, 24 P. 588, 589 (1890).

138 If the state concludes that a given habit is detrimental to either the moral, mental or physical well being of one of its citizens to such an extent that it is liable to become a burthen upon society, it has an undoubted right to restrain the citizen from the commission of that act; and fair and equitable consideration of the rights of other citizens make it not only its right, but its duty, to restrain him. Id. at 164, 24 P. at 590; accord, Ex parte Yun Quong, 159 Cal. 508, 515, 114 P. 835, 837 (1911); Luck v. Sears, 29 Ore. 421, 426, 44 P. 693, 694 (1896).

139 Ex parte Yun Quong, 159 Cal. 508, 515, 114 P. 835, 837 (1911); Luck v. Sears, 29 Ore. 421, 425, 44 P. 693, 694 (1896).

140 But it is urged . . . that a moderate use of opium . . . is not deleterious and consequently cannot be prohibited. We answer that this is a question of fact which can only be inquired into by the legislature.

Ah Lim v. Territory, I Wash. 156, 164, 24 P. 588, 590 (1890). The dissent argued that moderate use by some could not be punished to prevent excessive use by others. Id. at 172-74, 24 P. at 592-93.

141 Id. at 165, 24 P. at 590. [W]hether [opiums] nature and character is such that for the protection of the public its possession by unauthorized persons should be prohibited is a question of fact and of public policy, which belongs to the legislative department to determine. Luck v. Sears, 29 0re. 421, 426, 44 P. 693, 694 (1896).

142 Ex parte Yun Quong, 159 Cal. 508, 514, 114 P. 835, 838 (1911) (quoting lower court opinion) (citations omitted).

143 Id. at 515, 114 P. at 838 (emphasis added).

144 "It must be conceded that its indiscriminate use would have a very deleterious and debasing effect upon our race Id. at 514, 114 P. at 838.

145 l Wash. 156, 24 P. 588 (1890).

146 Id. at 168, 24 P. at 591.

147 Individual desires are too sacred to be ruthlessly violated where only acts are involved which do not clearly result in an in jury, to society, unless, possibly thus rendered necessary in order to prevent others from like actions which to them are injurious.

Id. at 173, 24 P. at 592. He concluded, however, that the statute was too broad and that this question need not be reached.

148 Id. at 174-75, 24 P. at 593,

149 194 Ala. 406, 69 So. 652 (1915).

150 164 Ala. 599, 51 So. 246 (1909).

151 It is the peculiar function of the lawmakers to ascertain and to determine when the welfare of the people requires the exercise of the state's police powers, and what are appropriate measures to that end, subject only to the power and authority of the courts to see, when assured to the requisite certainty, that the measures of police so adopted do not arbitrarily violate rights protected by the organic laws. 194 Ala. at 421, 69 So. at 656.

152 123 U.S. 623 (1887), quoted in 194 Ala. at 428-33, 69 So. at 659-60.

153 194 Ala. at 433, 69 So. at 660.

154 Id. at 434, 69 So. at 660.

155 Ex parte Crane, 27 Idaho 671, 151 P. 1006 (1915), aff'd suh nom. Crane v. Campbell, 245 U.S. 304 (1917).

156 Ex parte Zwissig, 42 Nev. 360, 178 P. 20 (1919); Fitch v. State, 102 Neb. 361, 167 N.W. 417 (1918); State v. Brown, 40 S.D. 372, 167 N.W. 400 (1918); Liquor Transportation Cases, 140 Tenn. 582, 205 S.W. 423 (1918); State v. Certain Intoxicating Liquors, 51 Utah 569, 172 P. 1050 (1918); Delaney v. Plunkett, 146 Ga. 547, 91 S.E. 561 (1917); State v. Carpenter, 173 N.C. 767, 92 S.E. 373 (1917); City of Seattle v. Brookins, 98 Wash. 290, 167 P. 940 (1917); Brennan v. Southern Express Co., 106 S.C. 102, 90 S.E. 402 (1916) (dictum).

157 245 U.S. 304 (1917).

158 Id. at 307-08 (citations omitted).

159 See text at note 126 supra.

160 245 U.S. at 308.

161 Eg., Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873).

162 Substantive due process was slowly being watered down even in the economic area during this time. See, e.g., Muller v. Oregon, 208 U.S. 412 (1908).

163 E.g., Bronaugh, Limiting or Prohibiting the Possession, of Intoxicating Liquors for Personal Use, 23 LAW NoTEs 67 (1919); Rogers, "Life, Liberty & Liquor": A Note on the Police Power, 6 VA. L. REV. 156 (1919); Safely, Growth of State Power Under Federal Constitution to Regulate Traffic in Intoxicating Liquors, 3 IOWA L, Bull 221 (1917); Vance, The Road to Confiscation., 25 YALE I.J. 285 (1916).

164 Ch. 85, 41 Stat. 305 (1919).

165 Cornell v. Moore, 257 U.S. 491 (1922).

166 This argument was accepted in United States v. Dowling, 278 F. 630 (S.D. Fla. 1922).

167, Law of Feb. 11, 1897, ch. 30, [1897] Tenn. Acts 156.

168 Austin v. State, 101 Tenn. 563, 48 S.W. 305 (1898), aff'd, 179 U.S. 343 (1900). 169 179 U.S. 343 (1900).

170 The primary issue before the Court was whether the statute infringed the exclusive power of Congress to regulate interstate commerce. Id. at 344. However, before turning to the "original package" questions, the Court first had to conclude that the statute was a legitimate exercise of the police power, for only then could an indirect interference with interstate commerce be sustained. Id. at 349. The Court noted on this point:

Cigarettes do not seem until recently to have attracted the attention of the public as more injurious than other forms of tobacco; nor are we now prepared to take judicial notice of any special injury resulting from their use or to indorse the opinion of the Supreme Court of Tennessee that "they are inherently bad and bad only." At the same time we should be shutting our eyes to what is constantly passing before them were we to affect an ignorance of the fact that a belief in their deleterious effects, particularly upon young people, has become very general and that communications are constantly finding their way into the public press denouncing their use as fraught with great danger to the youth of both sexes. Without undertaking to affirm or deny their evil effects, we think it within the province of the legislature to say how far they may be sold, or to prohibit their sale entirely . . . provided . . . there be no reason to doubt that the act in question is designed for the protection of the public health.

Id. at 348-49; cf. Gundling City of Chicago, 177 U.S. 183 (1900) (affirming validity of licensing sale of cigarettes

171 City of Zion v. Behrens, 262 111. 510, 104 N.E. 836 (1914); Hershberg v. City of Barbourville, 142 Ky. 60. 133 S.W. 985 (1911).

172 In the broad language in which the ordinance is enacted it is apparently an attempt on the part of the municipality to regulate and control the habits and practices of the citizen without any reasonable basis for so doing. The ordinance is an unreasonable interference with the private rights of the citizen . . . . 262 Ill. at 513, 104 N.E. at 837-38.

The ordinance is so broad as to prohibit one from smoking a cigarette in his own home or on any private premises in the city. To prohibit the smoking of cigarettes in [such circumstances] is an invasion of his right to control his own personal indulgences. 142 Ky. at 61, 133 S.W. at 986 (1911). By holding that the ordinance applied in the home, the Kentucky court avoided the question raised in the Illinois case. The reasoning would appear to compel the same result, however.

173 B. ADAMS, THE THEORY OF. SOCIAL REVOLUTIONS 94 (1913).

174 Noble State Bank v. Haskell, 219 U.S. 104, III (1911).


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