Civic Register
| 8.2.19

FDR Made Marijuana Illegal 82 Years Ago On This Date

How do you feel about FDR's marijuana prohibition bill on its anniversary?

On August 2, 1937 President Franklin D. Roosevelt signed the Marihuana Tax Act of 1937, the first federal marijuana law, which prohibited the substance beginning in October of that year (yes, that’s how they spelled marijuana back then). It effectively banned the possession of pot by requiring users to obtain a tax stamp, which they couldn’t buy without providing details about the amount and location of their marijuana, thereby incriminating themselves in the process.

While the law was overturned by the Supreme Court and was officially repealed by Congress in 1970, Congress passed the Controlled Substances Act simultaneously — thus ensuring that marijuana remained illegal. The prohibition continues to this day at the federal level, though a growing numbers of states have chosen to legalize marijuana for medical or recreational uses.

Why ban marijuana?

In the early decades of the 1900s, many states enacted laws restricting the use of cannabis (the plant the drug comes from) for medical and recreational purposes in order to prevent addiction. By the 1930s, every state had adopted uniform regulations that were aimed at controlling marijuana. The U.S. also became a party to the International Opium Convention in 1925, which prevented “Indian hemp” from being exported to countries where it was banned, and could only be sent to countries where it would only be used for medical or scientific purposes.

The primary case made against marijuana by the federal government was that its use had become “a national menace” in the words of Harry Anslinger, the commissioner of the Federal Bureau of Narcotics (the DEA’s predecessor). In congressional testimony Anslinger urged members to vote for the Marihuana Tax Act and described what he believed to be marijuana’s effect:

“Some individuals have a complete loss of sense of time or a sense of value. They lose their sense of place. They have an increased feeling of physical strength and power. Some people will fly into a delirious rage, and they are temporarily irresponsible and may commit violent crimes. Other people will laugh uncontrollably. It is impossible to say what the effect will be on any individual.”

Aside from raising concerns about the effects of marijuana, Anslinger stoked cultural fears by citing several instances of minorities using the drug before committing crimes, leading some to allege that racial bias played a role in its prohibition. Increasing numbers of Mexicans were immigrating to the U.S., and the use of marijuana was common among those who worked on farms in the southwest and western parts of the country. Additionally, a concentrated type of marijuana known as hashish was used by some immigrants from the Middle East and surrounding regions.

Anslinger’s congressional hearings lasted a total of one hour, while the American Medical Association testified that there is “no evidence” of marijuana’s danger. Lawmakers were unmoved. The House Ways and Means Committee held one hearing of its own before approving the bill, which was then passed by the House of Representatives as a whole following 90 seconds of debate. The Senate followed suit after holding a brief hearing shortly thereafter, sending the bill to FDR’s desk for a signature.

What did the legislation do?

The Marihuana Tax Act was relatively simple — it levied a tax of about $1 on all who bought, sold, imported, grew, or prescribed marijuana. Violations of the law could lead to up to five years’ imprisonment or a $2,000 fine (that’s about $34,490 in today’s dollars). The Federal Bureau of Narcotics (FBN) was granted administrative and regulatory powers while being tasked with enforcing the law.

If a doctor, for example, wished to prescribe marijuana to one of their patients they were required to report its use in a sworn statement that detailed the patient’s name and address, their illness, plus when and how much marijuana they were prescribed. Failure to immediately provide that information put both the doctor and the patient at risk of a fine or imprisonment.

The first two arrests for violating federal marijuana law came the day the Marihuana Tax Act went into effect, as Moses Baca was arrested for possession and Samuel Caldwell charged with dealing after selling Baca a few joints. Baca was sentenced to 18 months imprisonment, while Caldwell was fined $1,000 and sentenced to four years hard labor.

What impact has it had since?

The prohibition of marijuana (and the “War on Drugs” more generally) has had a profound effect on U.S. crime and law enforcement policy to this day. The Drug Policy Alliance notes that over 700,000 Americans were arrested or cited for violating marijuana laws in 2014 — 88% of which were for possession only.

Another lingering point of contention in the marijuana debate is the so-called “gateway drug” theory, which suggests that using the drug will lead to the use of more dangerous drugs. That suggestion was controversial even in the 1940s, as New York City Mayor Fiorello LaGuardia commissioned a study on marijuana use in the city. The research rebutted the notions put forward by Anslinger (who dismissed the study), finding that its consumption didn’t contribute to the use of harder drugs or a factor in causing crimes or juvenile delinquency.

Following a lawsuit brought against the U.S. government by Timothy Leary — a famed advocate for psychedelic drugs — challenging the constitutionality of the Marihuana Tax Act, the Supreme Court unanimously struck down the law in 1969 because it violated the Fifth Amendment's protection against self-incrimination. Congress formally repealed the law a year later, but simultaneously passed the Controlled Substances Act to ensure that marijuana remained illegal.

Since then, things are beginning to change for marijuana and its advocates. Thirty states plus the District of Columbia have legalized medical pot, while voters in nine states (Colorado, Washington, Alaska, Oregon, California, Maine, Massachusetts, Nevada, and Michigan) have chosen to regulate and tax recreational marijuana sales. D.C. voters did the same but the plan to regulate marijuana was shut down by Congress, while Vermont and Illinois became the first states to legalize recreational marijuana through the legislature.

There may soon be additional reform coming at the federal level. Senate Majority Leader Mitch McConnell (R-KY) successfully lobbied for the inclusion of a provision allowing states to regulate industrial hemp production in the Farm Bill that President Donald Trump signed into law in December 2018. Since then, Trump administration has signaled a potential openness to federal marijuana reform aimed at allowing states to regulate the medical & recreational uses of the substance. Attorney General Bill Barr said in testimony before the Senate Appropriations Committee that while he prefers that marijuana remain illegal under federal law:

"I think the way to go is to permit a more federal approach so states can make their own decisions within the framework of a federal law so we're not just ignoring the enforcement of federal law."

Barr mentioned that the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act would achieve this, and the bipartisan legislation has been introduced in both chambers of Congress:

— Eric Revell

(Photo Credit: U.S. Bureau of Printing and Engraving / Public Domain)