Federal Marijuana Laws May Be Going Up in Smoke

Are our federal marijuana laws unraveling? There is reason to think so.

Early in the 20th century, each state had its own laws controlling habit-forming drugs, unaffected by federal statutes. In 1914, for example, it was legal in New York to be maintained on morphine, while in Massachusetts it was illegal for a physician to supply morphine to a habitual user.

After lengthy attempts to control morphine, heroin and cocaine, Congress in 1914 passed the Harrison Act, which imposed one rule on these drugs throughout the nation. The law was typical of Progressive Era legislation: A national problem that was being dealt with variously by the states was harmonized by one overriding federal law.

A similar patchwork pattern applied to marijuana in the 1920s when it first became a serious worry. Then in 1937, national control also was applied to marijuana. The Marihuana Tax Act made it illegal to buy, sell, barter, etc., marijuana anywhere in the United States unless you had purchased a marijuana tax stamp, and there were, for all practical purposes, no stamps to be bought. This held true until 1970, when the basis for the anti-marijuana law was shifted from the tax power of the federal government to interstate commerce powers, but the overriding control of marijuana continues to reside with the federal government.

Usually when a problem has been formulated into a national law, the several states accept this resolution; any alterations are argued in Congress.

But there are exceptions. Passing welfare from the federal government to the states is a major shift in the locus of control. A similar trend toward unraveling what long ago had been knitted into national law may be occurring with control of dangerous drugs. Even the U.S. Supreme Court’s recent decision to prohibit sale of “medicinal marijuana” in Oakland, Calif., at least for the time being, may be just a skirmish in the devolution of drug control from Washington to the states. For example, the U.S. 9th Circuit Court of Appeals has taken the position that the “medical necessity” of marijuana outweighs the federal statute that makes marijuana illicit, an issue that may come before the Supreme Court this fall.

If enough of the judiciary were to follow suit, we would have in effect the repeal of the anti-marijuana statute. We would be moving toward an earlier era of variegated state regulations.

The marijuana question raises two issues: the value of marijuana as a medicine, and the right to use marijuana for simple recreation. Some of us may believe that those who want to exercise their right to smoke for any reason use the medical marijuana issue to achieve adoption of laws that loosen controls at the state level. Still, an important question remains: Does cannabis have some characteristics that give it unique healing or comforting properties? We do not have a good answer to this. The claims for marijuana are often anecdotal, not scientifically established.

Coincidentally, the day the Supreme Court made its latest pronouncement regarding Oakland, the University of California announced that it was opening two centers, in San Francisco and San Diego, to study the health value of cannabis. Gen. Barry R. McCaffrey, director of the White House Office of National Drug Control Policy, has said--and reasonably so--that if cannabis were proved to have medical benefits he would favor its use in a medically approved delivery system. Several years ago, the FDA approved a liquid form of cannabis’ active ingredient, tetrahydrocannabinol, or THC, for physicians to prescribe, although it does not seem to have become a popular remedy.

Interestingly, the late Harry J. Anslinger, the legendary head of the federal Bureau of Narcotics and Dangerous Drugs from 1930 to 1962, wanted to avoid a federal marijuana law: He urged the states to individually enact a uniform state narcotic act that included marijuana. He told me in the early 1970s that he felt this way because the task of eradicating marijuana was beyond his ability and also because he realized that he would be given neither more money nor more agents when he was given the task in 1937 of controlling marijuana.

If each state had a law, then each state could decide for itself how much of its resources it wanted to devote to the control of pot, and federal authorities could concern themselves with just opiates and cocaine.

California was one of the Western states that clamored for a federal anti-marijuana law in the 1930s. The perceived connection between Mexican immigrants and marijuana use lay behind some of the most insistent demands for action, but there were also more reasoned concerns about marijuana use, especially among youth.

Sixty-some years after pushing for the Marihuana Tax Act, California is pulling the nation toward a dismantling of a national consensus against marijuana.