This is not an unusual perspective in the Christian tradition as well. In the Treatise on Law in his
Summa Theologica
, Thomas Aquinas explains (citing Augustine) that not all vices should be punished by the law. Human laws should chiefly forbid those things that cause direct physical harm to others; Aquinas offers murder and theft as examples. With regard to practices that do not physically harm or defraud others (whatever other intangible grief they may cause), it can be necessary to tolerate them if prohibiting them would lead to still further evils—a point that is especially relevant to our subject here.
What is more, the law cannot make a wicked person virtuous. According to Aquinas, God’s grace alone can accomplish such a thing. The law is simply incompetent here. What the law can do is provide the peace and order within which men can conduct their affairs. But so much of what is important in human life takes place far removed from law, and in the domain of civil society, families, and communities. These salutary influences, apart from the state, have a responsibility to improve the moral conduct of individuals. We ought not to shirk our own responsibility by looking to politicians—who are not exactly known for living beyond moral reproach themselves—to carry out so important a function.
When you actually study the beginnings of the federal war on drugs, you uncover a history of lies, bigotry, and ignorance so extensive it will leave you speechless.
In one area, at least, those who had favored the prohibition of alcoholic beverages had been honest: the Constitution does not authorize the federal government simply to ban these substances. When alcohol prohibition was implemented, everyone understood that it required a constitutional amendment. And so in order to ban certain kinds of drugs, the Harrison Tax Act of 1914 simply levied prohibitively high taxes on them. No one would pay such high taxes, so anyone caught in possession of the substances targeted by the act was accused not of mere possession, which was not criminalized, but of tax evasion.
Here I intend to focus on the especially interesting history of federal marijuana prohibition. A substantial motivation behind it, which is evident all over the debates on the subject, was a contempt for Mexicans, with whom marijuana use was widely associated at the time. On the floor of the Texas Senate, one state senator declared: “All Mexicans are crazy, and this stuff is what makes them crazy.” Similar statements could be heard in numerous states around the country. Harry Anslinger, who headed the federal government’s Bureau of Narcotics, said that “the primary reason to outlaw marijuana is its effect on the degenerate races.” That was not unusual: Anslinger made comments like that as a matter of routine.
The resulting Marijuana Tax Act of 1937—yes, federal prohibition is really just seven decades old—had little to do with real science or medicine, and a lot to do with petty ethnic grudges, careerism in the Bureau of Narcotics, and disinformation and propaganda in the popular press, where yellow journalism still lived. Hearings on this important matter took a grand total of two hours, very little of which had anything to do with the health effects of marijuana, the alleged reason behind the proposed prohibition.
*
A grand total of two medical experts testified on the subject. One alleged expert was James Munch, a professor who claimed to have injected 300 dogs with the active ingredient in marijuana, and that two had died. When asked whether he had chosen dogs for the similarity of their reactions to those of human beings, he shrugged, “I wouldn’t know; I am not a dog psychologist.”
We can be fairly certain that this professor had not injected these dogs with the active ingredient in marijuana, since that ingredient was synthesized for the first time in a laboratory in Holland years later. But keep this gentleman in mind for a moment.
The other expert who testified was William Woodward, who represented the American Medical Association. He denounced the legislation as medically unsound and the product of ignorance and propaganda. “The American Medical Association knows of no evidence that marihuana is a dangerous drug,” he said. To which one congressman replied, “Doctor, if you can’t say anything good about what we are trying to do, why don’t you go home?”
In Congress, the entire debate on national marijuana prohibition took about a minute and a half.
“Mr. Speaker, what is this bill about?” asked a congressman from New York.
“I don’t know,” came the reply. “It has something to do with a thing called marihuana. I think it’s a narcotic of some kind.”
Then a second question from the congressman: “Mr. Speaker, does the American Medical Association support this bill?”
The AMA opposed the bill, as we’ve seen. But the Speaker replied, “Their Doctor Wentworth [sic] came down here. They support this bill 100 percent.”
And with that untruth ended the entire congressional debate on the prohibition policy.
After the 1937 legislation was passed, Anslinger held a major national conference to which he invited everyone he could find who knew something about marijuana. Of the 42 people invited, 39 stood up at the event and more or less said they didn’t understand why they had been asked to come, and that they knew nothing about the subject. That left three people: (1) the AMA’s William Woodward, (2) Dr. Woodward’s assistant, and (3) James Munch, the professor with the dogs.
You can guess what happened next. James Munch, the one person at the conference who agreed with Anslinger on marijuana, was named the Official Expert on marijuana at the Federal Bureau of Narcotics. One person agrees with the government’s position and he is appointed the Official Expert. If that doesn’t sum up how government operates, I don’t know what does.
Now recall Anslinger’s claim—which he later withdrew in the face of the medical community’s insistence that there was no evidence to support it—that marijuana “is an addictive drug which produces in its users insanity, criminality, and death.” In the late 1930s and early 1940s, defendants in a series of well-publicized murder trials happily exploited that statement by offering—what else?—insanity defenses on the grounds that they had used the drug prior to committing the crime.
At one of these trials our Official Expert was asked to testify about the substance’s insanity-inducing properties. In his testimony in a Newark, New Jersey, court Munch admitted to having used the drug himself. When asked what had happened when he had used the drug, he answered: “After two puffs on a marijuana cigarette, I was turned into a bat.”
As a bat he flew around the room for fifteen minutes, he said.
Naturally, this was all the defense needed to hear. Accused murderers in that trial now testified, “After two puffs on a marijuana cigarette my incisor teeth grew six inches long and dripped with blood.” All marijuana insanity defenses were successful.
Meanwhile, Anslinger informed Munch that his position as Official Expert would be jeopardized if he continued to testify that he had become a bat. He stopped testifying.
By 1970, the federal government dropped the charade that this was all a tax measure and simply prohibited a range of substances. No constitutional justification for this new prohibition has been offered.
We do not treat alcoholics as criminals and throw them in prison. Politicians enjoy drinking alcohol, after all, so that would never happen. In the same way, drug abuse is a medical problem, not a problem for courts and policemen. Families, churches, and communities need to take responsibility when people harm their lives with drugs. Clogging our courts and prisons with cases involving people found in possession of tiny quantities of prohibited substances, and who have never done any physical harm to anyone, makes it all but impossible to devote the necessary resources to tracking down the violent criminals who really do threaten us. Over the past two decades more people have been imprisoned on drug offenses than for all violent crimes put together. And that is not to mention the continued erosion of our civil liberties for which the drug war has been responsible.
The failure of the federal war on drugs should be clear enough from one simple fact: our government has been unable to keep drugs even out of prisons, which are surrounded by armed guards. The fact is, drugs are already available to people who want them. That is the nightmare scenario that people fear, but they fail to realize that we are already there. Poll after poll finds the vast bulk of high school and college students easily able to acquire drugs if they so desire. That is how black markets work: prohibiting something that is highly desired does not make the desire go away but merely ensures that the supply of that good is provided in the most dangerous and undesirable manner possible, and endows criminal sectors of society with additional wealth and power. As with so much else, the constitutional solution would get the federal government out of the picture and leave the issue to the states.
Regardless of where one stands on the broader drug war, we should all be able to agree on the subject of medical marijuana. Here, the use of an otherwise prohibited substance has been found to relieve unbearable suffering in countless patients. How can we fail to support liberty and individual responsibility in such a clear-cut case? What harm does it do to anyone else to allow fellow human beings in pain to find the relief they need? What kind of “compassionate conservatism” is this?
As usual, this constitutional outrage enjoys bipartisan support. The Clinton administration issued threats against states that permitted medical marijuana, warning that it would bring charges against any physician who prescribed it. In 2005, Clinton Supreme Court appointees Ruth Bader Ginsburg and Stephen Breyer both upheld the federal government’s alleged power to prohibit medical marijuana even in the dozen states like California that had voted to allow it. (Alabama, Mississippi, and Louisiana, which do not allow medical marijuana and have tough drug laws, issued a joint statement saying that although they opposed California’s policy, they were even more strongly opposed to a federal government that could overturn that policy and in effect make up its powers as it went along.)
The constitutional arguments in favor of allowing the federal government to prosecute medical marijuana users even in states in which ballot initiatives have made the practice legal are an insult to the American people. They are based on a complete misunderstanding of the Constitution’s commerce clause and what its scope was supposed to be. On the other hand, if you’d like to see how the issue is dealt with by someone who actually cares to consider the original intent of the Constitution, then treat yourself to Justice Clarence Thomas’s eloquent dissent in
Gonzales v. Raich
(2005).
The personal liberties that concern me extend beyond individuals and include families and households as well. For one thing, I have always supported homeschooling families, who run the ideological gamut from Vermont environmentalists to Southern evangelicals. As I have said, the government does not own you—and neither does it own your children. It is bad enough that some parents find themselves forced to pay for an education they not only will not use for their children, but whose content they deeply oppose from a philosophical or religious point of view. (I’ve sometimes wondered why those who would never dream of forcibly taking people’s money to pay to support a religious belief they do not share have no hesitation at all in taking their money to support an educational philosophy they do not share.) It is even worse that in some cases they have to maneuver a legal minefield in order to provide their children with the kind of education they want.
One could write a lengthy book on the ways in which government intrudes upon the legitimate rights of the family, but consider this example, which is all the more interesting for having been ignored in the media. In 2004, a presidential initiative called the New Freedom Commission on Mental Health issued a report calling for forced mental health screening for all American children, beginning in preschool. Although no such program has begun at the federal level, grants have already been sent out to establish pilot programs in localities across the country in conformity with the New Freedom report. I think we know what that means.
Before considering just how outrageous this proposal is, let us consider the obvious beneficiary of such a program: the pharmaceutical industry. There can be little doubt that under such a program, millions more children would suddenly be discovered to be in need of psychotropic drugs. Some 2.5 million American children use such drugs already, with (according to the
Journal of the American Medical Association
) a 300 percent increase from 1991 through 1995 alone. The figure increased another fivefold from 1995 to 2002.
Is this a good thing? We have reason to be skeptical. We have no idea what the long-term side effects of the use of such drugs in children, whose brains are still developing, will be. Medical science has not even exhaustively identified every possible brain chemical, even as we alter youngsters’ brains with drugs. Short-term side effects are already apparent in many children, yet parents have actually been threatened with child-abuse charges if they refuse to drug their children. It will be all the more difficult to resist such a regimen if a federal mental-health screener recommends it. Diagnoses of some of these disorders are notoriously subjective; and physician Karen Effrem wonders if children could even be stigmatized simply for having religious or political views that differ from fashionable orthodoxies.
The key question, though, is by what right government intrudes into such an area. The issue of mental health is obviously a question for parents, children, and their doctors to deal with themselves. What kind of free people would turn their children’s most intimate health matters over to government strangers?
Ever since this report appeared I have sought to deny funding to any such program. My opponents have described this as an overreaction. But in light of how our government normally behaves, is it really? If the history of American government teaches us anything, it is that the time to fight oppressive and absurd programs is
before they are established
, since once they are in place they are essentially impossible to dismantle. They need to be blocked before they have a chance to start. Otherwise, local programs with federal funding will grow larger and larger and be found in many more localities, until we finally have a mandatory federal screening program. This is how it always works.