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Volume 3 - Public Policy Options

Chapter 20 - Public Policy In Other Countries - US

The federal-state legislative framework


Historically, most criminal law and its enforcement was a matter under the jurisdiction of the states. Article I of the U.S. Constitution delineates the federal government’s areas of legislative authority and the Tenth Amendment expressly provides that all powers not granted to the central government belong to the states. Criminal law is not among the powers specified as being within the federal government’s purview and in Congress’ early days, federal criminal laws were restricted to acts injurious to the national government, such as treason and counterfeiting, or offences of an extra-territorial nature, such as piracy and felonies committed on the high seas.

Despite this, the U.S. Congress has managed to assume a significant role in the criminalization of drug use. Although the "Father of the Constitution," James Madison, had assured the states that their powers were "numerous and indefinite" and those of the central government "few and defined,"[1][209] judicial constitutional analysis subsequently provided a very wide interpretation of the sphere of congressional authority. Beginning with the 1819 case of McCulloch v. Marlyland[2][210] the U.S. Supreme Court has given a broad reading to the Article I provision that the federal government may enact all laws that are "necessary and proper" for executing its listed powers. Two of Congress’ listed powers are taxation and the regulation of foreign and interstate commerce. As discussed below, the federal government has used these heads of power as the foothold for entering into the regulation of drug use.



From the time of the U.S. Civil War (1861-1865) to the end of the 19th century, the use and sale of opium, morphine, cocaine and other psychoactive drugs were legal and common. Opium was available with or without a prescription and was an ingredient in many patent medicines, including various pain-killers, cough mixtures and teething syrups for infants. Cocaine was also used medicinally, as well as in soft drinks and wine.

Things started to change around the turn of the century. Heroin was first isolated in 1898 and was purported to convey the same benefits as opium or morphine, without the risk of addiction. The realization of heroin’s addictive properties soon after its introduction coincided with racist appeals to protect American society from drugs. Initially, two drugs were targeted: Cocaine, associated mainly with Blacks who were said to go on violent rampages under its influence, and opium, the smoking of which was associated with the Chinese. Alcohol temperance societies and religious groups also played key roles in lobbying for prohibition.

Despite strong opposition from the patent medicine industry, the U.S. Congress passed the Pure Food and Drug Act in 1906. This legislation required over-the-counter medicines to list the amount of drugs contained in them in the hope that this would reduce the use of such medicines. Soon to follow was the Opium Smoking Act of 1909 (as Amended, 1914) in which Congress banned the importation of the drug for non-medicinal purposes.


The Harrison Narcotic Act of 1914

The Harrison Act was a significant development in American drug policy. Earlier legislation enacted in 1909 had restricted the importation of opium in accordance with the international conventions against the use of the drug. Initially designed to medicalize cocaine and heroin by restricting their distribution to physicians, the Harrison Act was passed in 1914. Its stated purpose was soon altered by the influence of the prohibitionist fervour of the day and this legislation became the unusual model upon which the administration of American narcotics policy would develop. Constitutional limits, as perceived at the time, meant that federal laws had to focus on international controls, interstate transfer and taxation. The Act therefore addressed drug use by requiring anyone selling drugs to be licensed and to keep records of all sales, ostensibly for tax purposes. As part of this regulatory process, users had to obtain prescriptions. Even though the Act specifically provided that doctors could prescribe narcotics, they could only do so if it was in the course of their "professional practice."

There were court challenges to the legislation. However, the U.S. Supreme Court upheld the Harrison Act as a revenue act and not a policing measure.[4][212] It was subsequently held that the Act did not permit physicians to prescribe drugs to “addicts” to keep them physically comfortable or maintain their addiction.[5][213] The Behrman decision[6][214] of 1922 further restricted the ability of physicians to prescribe and the prosecution of pharmacists and physicians resulted in legal supplies of opiates and other drugs essentially becoming unavailable by the early 1920s.


Subsequent measures

In the Depression years, fears about "degenerate Mexicans" smoking marijuana also led to legislative action. Some suggest that this represents a common thread in American drug policy; that is, the determining factor in deciding whether a particular drug was criminalized was not its inherent properties or potential for social harm, but rather the kinds of people associated with its use.[7][215] By 1931, 29 states had outlawed marijuana and in 1937 Congress passed the Marihuana Tax Act which, like the Harrison Act, established federal control over marijuana pursuant to Congress’ revenue authority. Although opposed by the American Medical Association at the time, the Act had the support of the country’s top drug cop, the head of the Federal Bureau of Narcotics (FBN), Henry J. Anslinger.

Anslinger, a central figure in the history of American drug policy, had been named the commissioner of the FBN in 1930 and headed the organization through five presidential administrations, until 1962. Often compared to his contemporary J. Edgar Hoover, who controlled the FBI. with similar tenacity, Anslinger did not support a public health approach to drug policy and argued that jailing users was the only proper response. He often suggested that drugs were part of a foreign plot. During W.W.II, he accused the Japanese of using narcotics to sap America’s will to fight; following the war, he asserted that it was the Communists who were attempting to do so.



[1][209]  In David P. Currie, The Constitution of the United States: A Primer for the People, Chicago: University of Chicago Press, page 26.

[2][210]  17 U.S. 316.

[3][211]  See Steven R. Belenko, ed., Drugs and Drug Policy in America: A Documentary History, Westport: Greenwood Press, 2000; Joseph D. McNamara, "Commentary: Criminalization of Drug Use" Psychiatric Times; Vol. XVII(9) Psychiatric Times; Luna, Erik Grant, "Our Vietnam: The Prohibition Apocalypse", (1997) 46 Depaul L. Rev. 483. Stephen B. Duke, "Commentary: Drug Prohibition: An Unnatural Disaster", (1995) 27 Conn. L. Rev. 571).

[4][212]  United States v. Doremus (1919), 249 U.S. Reports 86. The Harrison Act was again upheld as a revenue measure in United States v. Nigro (1928), 276 U.S. Reports 332.

[5][213]  Webb et al. v. United States (1919), 249 U.S. Reports 96.

[6][214]  United States v. Behrmann (1922), 258 U.S. Reports 280.

[7][215]  See Luna, supra, page 490‑495.

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