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Are The Drug Laws Constitutional?

A Historical Perspective

From _Our Right To Drugs_ by Thomas Szasz, Praeger Publishers, NY (1992):

*The Pure Food and Drugs Act of 1906*

Before 1907, all drugs could be sold and bought like any other consumer good. The manufacturer did not even have to disclose the contents of his concoction. Hence the name patent medicine, the adjective alluding to the fact that the composition was a trade secret, protected by a patented name.

Although there is no evidence that the American consumer ever complained about the free market in drugs, there is plenty of evidence that his self appointed protectors complained bitterly and loudly. The first landmark event in the federal regulation of drugs (and foods) was the Food and Drugs Act of 1906. What did Congress intend to achieve with this seemingly laudable legislation? To protect people from the sale of "adulterated" or "misbranded" foods or drugs, that is, "assur[ing] the customer of the identity of the article purchased, not of its usefulness."

I say Congress's aim in enacting this legislation was seemingly laudable because, while it is desirable that people know what drugs they buy, forcing manufacturers by law to list the ingredients of their products is an unnecessary infringement on the free market -- the foot in the door of paternalistic-statist protectionism. If Great American Drugs, Inc., wants to market a mystery product, there is no reason why the government should prevent it from doing so. And if I want to buy such a pig in a poke, why should the government prevent me from making that choice? People who want to be informed about the drugs they buy and use would abstain from purchasing mystery products, and market forces would then create a supply of truthfully labeled drugs. In short, there would be no need to prohibit the non-disclosure of the contents of medicinal (or other) products. It is enough to prohibit false disclosure and to punish it, as fraud, by both criminal and civil penalities. As for nondisclosure, it would be "punished" by the invisible hand of the market. The truth is that behind Congress's ostensible aim of combating drug misbranding lay its growing antagonism to the habit of pharmacological self-pleasuring, manifested by the act's specifically mandating the listing on the label of what were then the main ingredients of Americans' favorite nostrums: alcohol, hypnotics, and sedatives. The relevant lines of the Food and Drugs Act read as follows:

That for purposes of this Act an article shall also be deemed misbranded: ... if the package fails to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis, chloral hydrate, or acetanilide.

It is implicit in this sentence that, back then, Congress took for granted the legality of a free market in drugs, including cannabis, cocaine, heroin, and morphine.


*The Harrison Act (1914) and It's Aftermath*

In 1914, Congress enacted another landmark piece of anti-drug legislation: the Harrison Narcotic Act. Originally passed as a record-keeping law, it quickly became a prohibition statute. In the course of the next seven years, by a curious coincidence of history -- if, indeed, it is a coincidence -- in Russia the Soviet Union replaced the czarist empire, while in the United States the free market in drugs was replaced by federal drug prohibition possessing unchallengeable authority. Excerpts from two key Supreme Court decisions quickly tell the story.

In 1915, in a test of the Harrision Act, the Court upheld it but expressed doubts about its constitutionality: "While the Opium Registration Act of December 17, 1914, may have a moral end, as well as revenue, in view, this court, in view of the grave doubt as to its constitutionality except as a revenue measure, construes it as such."

Yet, only six years later the Court considered objection to federal drug prohibition a taboo. In Whipple v. Martinson the justices declared,

"There can be no question of the authority of the State in the exercise of its police power to regulate the administration, sale, prescription, and use of dangerous and habit-forming drugs....

The right to exercise this power is so manifest in the interest of public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.

In 1914, trading in and using drugs was a right. In 1915, limited federal drug controls were a constitutionally questionable tax revenue measure. By 1921, the federal government had gained not only complete control over so-called dangerous drugs, but also a quasi-papal immunity to legal challenge of its authority. Thus has the rejection of one of our most basic constitutional rights become transformed into reverence for one of our most baneful therapeutic-religious dogmas. Once ignited, the fire of "progressive" drug protectionism spread and soon enveloped the whole contry, transforming the Harrison Act into the legislative embodiment of the "moral principle that taking narcotics for other than medicinal purposes was harmful and should be prevented." That threw the monkey wrench medicinal purpose into the machinery of the trade in drugs; this undefined and undefinable concept has haunted us ever since. In 1920, drug prohibitionists won another major victory: America was, at last, alcohol-free -- if not de facto, then at least de jure. Since 1924, when Congress made it illegal to manufacture, possess, or sell heroin, America has been free from heroin as well -- if not in practice, then at least in theory.


In retelling this tale, it is impossible to overemphasize that, although initially the drug laws were intended to protect people from being "abused" by drugs others wanted to sell them, this aim was soon replaced by that of protecting them from "abusing" drugs they wanted to buy. The government thus succeeded in depriving us not only of our basic right to ingest whatever we choose, but also of our right to grow, manufacture, sell, and buy agricultural products used by man since antiquity.

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