THE FORBIDDEN FRUIT AND THE TREE OF KNOWLEDGE: AN INQUIRY INTO THE LEGAL HISTORY OF AMERICAN MARIJUANA PROHIBITION

Richard J. Bonnie* & Charles H. Whitebread, II**

1. INTRODUCTION

Law may be rooted in fiction as well as fact. Indeed, a public policy conceived in ignorance may be continuously reaffirmed, ever more vehemently, so long as its origins remain obscure or its fallacy unexposed. Yet once a spark of truth ignites the public opinion process, the authority of time will not stay the flames of controversy. In stable times the policy may soon be reversed or modified to comport with reality. In volatile times, however, a single controversy may lose its urgency. Fueled by flames generated by related public issues, the fire may spread; truth may again be consumed in the explosive collision of competing cultural ideologies.

So it has been with marijuana.' Suppressed for forty years without significant public attention, the "killer weed" has suddenly surfaced as the preferred euphoriant of millions of Americans. Hardly a day passes without public exposure to propaganda from one side or the other. Hardly a day passes without arrests of newsworthy figures for violations of marijuana laws. Before legislatures and courts, the law is attacked and defended with equal fervor. Sociological, medical and police testimony regarding the drug's effects is delivered feverishly to an attentive public.

Yet, apart from some expedient peripheral actions, little has been done. Detailed studies have been commissioned, but there has been no significant reconsideration of basic assumptions. Because the marijuana issue has become ensnared in broader social polemics, it has been stalemated. Stability and change, defiance and repression, hippieism and middle-Americanism, "law and order" and protest politics define the cultural milieu of which the marijuana issue is viewed as but a symptom.

This Article is motivated by twin concerns: that the flagrant disregard of marijuana laws bespeaks a growing disenchantment with the capacity of our legal system rationally to order society, and that the assimilation of the marijuana issue into larger social conflicts has consigned the debate to the public viscera instead of the public mind. Through a historical analysis of the marijuana laws we hope to refocus the debate. An understanding of the origins of the laws might modulate the challengers' hostile accusations and at the same time promote in legislators an awareness of their own responsibility.

For the purposes both of description and evaluation, law is inseparable from the process by which it is adopted and the values it manifests. Accordingly, our history focuses both on the public policy formation process and on evolving patterns of our culture. With respect to policy, formation, marijuana's legal history is a significant illustration of the interaction of the public opinion, legislative and judicial processes, and, in a broader sense, the relation between folkways and gateways. With respect to its value-content, the evolution of marijuana policy reflects quite precisely emerging cultural attitudes toward pluralism, privacy and individual pursuit of pleasure in an increasingly mechanized and depersonalized technological society.

1Throughout its tumultuous history, the common name of the cannabis drug has been spelled in numerous ways-marihuana, meriguana, marijuana, marijuana. We will use the last spelling because it appears most often in modern publications and conforms more nearly to the Spanish.