By: Alexander Rosenblum -Hofstra Law School – Law Student Contributor
One of the first questions I have ever had about marijuana was, why the people and the laws in the United States more often than not refer to the plant as “marijuana” or “marihuana?” The more proper and more scientific name is “cannabis.” Just to the north in Canada and in most of Europe all I hear is the term cannabis. I feel it’s strange to refer to something by its slang term in statute. This one question turned out to be one of the most enlightening questions I had ever asked about the topic.
Anyone with any sense of current events can understand that the current state of American marijuana law is one of mayhem. The contradicting polices of many state governments with federal policy give rise to legal predicaments that can cause a constitutional law scholar to have a field day.
In my opinion, when law becomes increasingly convoluted and ridiculous in its application that it causes mayhem in the legal world, one of the only sources of clarity and answers comes from looking into the past to see how we got to where we are today. One of the most fundamental methods of gaining full comprehension of any law is to delve into the origins of the law. More specifically, one must look to the justifications to its enactment and the history of its enactment. This may demonstrate the law’s true purpose and uncover the motivations of those who enacted it. From this knowledge, we can not only become more familiar with our history, but we can have a clearer picture of the source of conflict.
One of the most interesting facets of American law is how it treats drugs, and most interestingly, marijuana. “Marijuana” currently a Schedule 1 Controlled Substance under the Controlled Substances Act of 1970, which is the same category as heroin and this means it has no recognized medicinal benefit and a high potential for abuse. According to federal law, the possession of any amount of marijuana is a misdemeanor with potential incarceration of up to three years (depending on the number of prior offenses). Growing more than one thousand plants may give you a sentence from ten years. In even more exaggerated cases, someone (in this case a cartel boss) has the potential of receiving a death sentence for trafficking obscene amounts of the drug (though I do not believe this will ever be imposed or even survive a potential constitutional challenge). Yet, the federal government not only has a small relic of an operating medical marijuana program, it holds a patent on the medical use of the psychoactive substance within the plant. The hypocrisy of federal policy on marijuana is almost a never ending list.
If anyone even attempts to get a read on society’s attitude towards Marijuana or even remains remotely aware of current events, they can see public approval of the medicinal and recreational use of Marijuana is soaring in the United States. Four states and the District of Columbia now allow for the recreational use of Marijuana. Twenty-three states, the District of Columbia and Guam allow some form of medicinal use of marijuana. Marijuana seems to be everywhere in many states. The New York Times just reported that two marijuana investment firms released a report that “legal” marijuana sales has hit $5.4 billion in 2015, and a forecast of $6.7 billion in 2016. Yet, federal prohibition of Marijuana still remains in force (minus a few budgetary caveats on preventing medical marijuana enforcement) and it appears that in the short term, neither Congress nor any other part of the federal government is going to take any action to reign in or amend federal prohibition. In fact, many politicians are sticking to a tough on crime approach on marijuana or avoiding the issue all together as a non-priority. It appears to me that not many politicians want to be labeled as a stoner sympathizer.
So how did America and our society get into the predicament we are in today? The answer to my first question is a good indication. Cannabis (yes I said cannabis this time) varieties are said to “stem” from East Asia. Varying species of cannabis may have been used by humans for thousands of years. Through trade, various forms of cannabis have made its way across the globe, through Europe and Africa and eventually into the Americas. Hemp, another form of cannabis, had been a valuable mainstream world commodity well before the arrival of the intoxicating forms of cannabis I am talking about now. The intoxicating form of cannabis had made its way into South America, where the climate was ideal for production. It naturally made its way north into Central America and even into the United States. Cannabis in its intoxicating form, cannabis sativa and cannabis indica, had been sold commonly throughout the United States, mainly in the form of a medicine or a drug through pharmacies. But its mainstream introduction to the United States as a recreational item takes us back to the 1910’s. The Mexican Revolutionary Period from 1910s to the 1920s had caused an increase in immigration of Mexicans to the United States. With them, came more of the cannabis plant.
It is important to note what is going on in the United States at the same time cannabis had started to increase in popularity in the United States. At this time, the cannabis plant was known by many slang names. In 1919, the Federal Constitution had been amended for the 18th time to ban the sale of intoxicating beverages within the United States. Prohibition had begun following a massive progressive and temperance movement. This may be speculation on my part, but I do believe that many states moving to outright prohibit cannabis as a recreational drug coinciding with a wave of Mexican immigration is too much of a coincidence.
The forces in United States was not only cracking down on recreational intoxicants plaguing society, efforts to curb and regulate the unmitigated sale of “poisons” was considered a major benefit to public safety. For example, this effort saw laws passed such as the Pure Food and Drug Act of 1906. States and the Federal government were expanding their powers, maybe rightfully so, in the interest of public safety (cue flashback to high school US History class: muckrackers, The Jungle, ect…).
The Federal Bureau of Narcotics in 1930 was formed to police federal narcotics laws under the Department of the Treasury, because the federal government derived their jurisdiction through taxes. The Bureau was led by the infamous Harry Anslinger and was formed during the waning years of prohibition (21st Amendment passed in 1933). This was followed by a national campaign, predominantly led by Anslinger’s Bureau, to create a national ban on the drug, for example, movies like Reefer Madness (1936), and this is where the term “marijuana” and “weed” became synonymous with cannabis. Actually, it is very difficult to establish the origin of the word “marijuana.” But, what is speculated and a very popular theory behind the choosing of this term to identify cannabis is that it sounds exotic. Painting cannabis as a foreign menace is an effective way to work towards a nationwide ban and stigmatization of the substance. Well, it clearly worked. This statement is more than just speculation, politicians and policy makers around the country publically stated they were motivated by a combination of racial and temperance related motivations. Many politicians who voted for the legislation had no idea marijuana and cannabis were related. Not only did Congress eventually pass the Marijuana Tax Act of 1937 (a de facto ban on the drug), I speculate that the Bureau of Narcotics gained a lot more power and resources to fight this menace to society considering enforcing a ban would fall under the Department of the Treasury’s Bureau of Narcotics.
I believe when you ask why “marijuana” or “weed,” we begin to unravel the motivations behind those pushing for the ban. We can become more critical of the prohibition when we realize the name chosen to label the substance is simply a means to an end, to get the substance stigmatized and banned. This gives me, and I am sure many others, reason to see more smoke and mirrors than actual justifications to the laws prohibiting marijuana. Starting from this point, we can identify the origins of the stigmatization and the inevitable conflict that arises as state governments are forced by their constituents to enact policies contrary to federal policy. As of the date of this blog post, each recreational marijuana scheme was enacted through voter pushed referendums. In addition, the most liberal state medical marijuana schemes were initiated through voter referendum. In an era of increased access to information, constituents are more empowered to speculate and organize to change laws. Of course, the extremely brief history I mentioned are the circumstances I feel led to this conflict, namely bad timing and biased people in power. In a system of federalism, the consequences have become a whirlwind of legal and ethical conflict for practicing attorneys.
Subsequently, the development of the “War on Drugs” and the Controlled Substances Act of 1970 are another, but related, can of worms.