By Fred Gardner

Sept. 10, 2013      Today’s U.S. Senate Judiiciary Committee hearing on “Conflicts between State and Federal Marijuana Laws” will get infinitely more media attention than the July 12, 1937 hearing at which a subcommittee of the Senate Finance Committee discussed the bill that originally imposed federal prohibition.

The Treasury Department’s top lawyer had drafted the “Marihuana Tax Act” three weeks after a Supreme Court decision in early ’37 upheld Congress’s right to prohibitively tax machine gun sales. The complicated scheme to outlaw pot was presented to the House Ways and Means Committee in early May. Pitching it again to the Senators on the morning of July 12 were Treasury Department lawyer Clinton Hester and the Commissioner of the Federal Bureau of Narcotics, Harry Anslinger.

 Hester acknowledged that Treasury chose not to add “marihuana” to the drugs banned under the Harrison Act (which banned opium and cocaine in 1914), because the Supreme Court might not uphold the Harrison Act upon review. So a measure was crafted to “discourage the widespread use of the drug by smokers and drug addicts… [by] resorting to the taxing clause of the Constitution.”

The revenue-raising pretense supposedly made prohibition Constitutional. “If, on the face of the bill,” Hester explained, “it appears to be a revenue bill, the courts will not inquire into any other motives that the Congress may have had in enacting this legislation.”

Anslinger then showed material from his files, such as the letter from an attorney in Houston who wrote that the topic of marijuana “strikes close to home because of a client I have who not so long ago murdered in a brutal way a man who had befriended him in giving him a ride. This client is a boy 20 years of age and he explained to me he has been smoking marihuana for several years.”

Another lawyer had written, “I tried a murder case for several days, of a particularly brutal character in which one colored young man killed another, literally smashing his face and head to a pulp, as the enclosed photograph demonstrates. One of the defenses was that the defendant’s intellect was so prostrated from his smoking marihuana cigarettes that he did not know what he was doing.”

Anslinger provided the photo of the murder victim. The Congressional Record quotes its effect on Senator Prentiss Brown, a recently elected Democrat from Michigan: “It affects them that way? Anslinger: Yes. Brown: That is terrible.”

The Commissioner lays on the tragic anecdotes:

 “We had the case of a 20-year-old boy who killed his brothers, a sister, and his parents while under the influence of marihuana. 

“Recently, in Ohio, there was a gang of very young men, all under 20 years of age, every one of whom had confessed that they had committed some 38 holdups while under the influence of the drug.

“In another place in Ohio, a young man shot the hotel clerk while trying to hold him up. His defense was that he was under the influence of marihuana.

“Here is a case in Baltimore, where a young man committed rape while under the influence of marihuana. He was hanged for it.”

 This is not dialog from some movie in which actors pretend to smoke marijuana and pretend to go berserk. This is testimony that would be elevated to the level of a “Congressional finding,” the truth according to the U.S. government.

Hemp Industry Concerns

Approval by the House Ways and Means Committee had been the key hurdle for Anslinger and whoever else was pushing through the Marihuana Tax Act. The several “experts” who previously helped Anslinger and Hester make the case for prohibition did not appear before the Senate subcommittee.

Several hemp industry representatives testified. They had been blindsided when the Marihuana Tax Act was introduced in the House in late April. Some of their colleagues had rushed to Washington to request exemptions. Hester made a few minor accommodations and the businessmen agreed to sterilize hemp seed sold as bird food so it couldn’t germinate and turn into marijuana. (Which the feds spelled with an h, as if to show those Mexicans how to spell.)

The hemp mill operators who testified before the Senate in the summer of 1937 had contracted with hundreds of small farmers who had plants growing in Illinois, Wisconsin, and Minnesota —more than 7,000 acres in production. They challenged Hester’s assertion that “the production and sale of hemp and its products for industrial purposes will not be adversely affected by this bill.”

 Matt Rens of the Rens Hemp Company of Brandon, Wisconsin, submitted a written critique of the bill that asked for four changes:

1. In every instance in which the word “marihuana” is used in H.R. 6906, the term “Cannabis” should be substituted.

2. Viable hempseed should be excluded from the definition of Cannabis (marihuana.

3. The definition of “producer” should be clarified so that there can be no misunderstanding as to what persons are producers.

4. The occupation tax for producers should be reduced from five dollars per year to one dollar per year.

 M.G. Moksnes of Amhempco, a mill in Danville, Illinois, pressed the latter point: “We are dependent on the small growers down in the Kentucky river bottoms to furnish our seed. There are small growers who probably do not have over 10 or 15 acres of land, distributed among several crops. If has to pay… five dollars a year, and he has only a quarter or half an acre, that tax is going to be prohibitive, we are going to lose the small growers, and it is the combination of growers that we have to depend on.

Senator Brown reassured him, “According to our understanding, the Treasury will endeavor to see if they can cover that problem, and we will do our best about it. We are not certain what we can do about it, but we will do the best we can.”

The miller did the math: “We have to have about 600 growers… That is $3,000. I am quite sure that we are going to have trouble getting the farmer to pay a five-dollar tax. We will have to stand that ourselves.”

Amhempco’s business plan would in fact be undermined, according to John Lupien, who wrote a master’s thesis on the Marihuana Tax Act. The company was close to perfecting machinery and developing a pilot line of products using the cellulose in hemp stalks. The taint of illegality was too much for investors who had yet to see a return, and Amhempco’s backers began pulling out. 

The AMA Opposition

At the House hearing, serious opposition to the Marijuana Tax Act had been expressed by William C. Woodward, MD,  the American Medical Association’s legislative counsel. He was subjected to a snide, relentless grilling by Rep. Fred Vinson of Kentucky. Dr. Woodward must have sensed that the fix was in, because instead of testifying at the Senate hearing he set forth his objections in a letter to the Chairman of the Finance Committee.

“I have been instructed by the board of trustees of the American Medical Association to protest on behalf of the association against the enactment in it present form of so much of H.R. 6906 as relates to the medicinal use of cannabis and its preparations and derivatives. The act is entitled ‘An Act to impose an occupational excise tax upon certain dealers in marihuana, to impose a transfer tax upon certain dealings in marihuana, and to safeguard the revenue therefrom by registry and recording.’

 “Cannabis and its preparations and derivatives are covered in the bill by the term ‘marihuana’ as that term is defined in section 1, paragraph (b). There is no evidence, however, that the medicinal use of these drugs has caused or is causing cannabis addiction. As remedial agents, they are used to an inconsiderable extent, and the obvious purpose and effect of this bill is to impose so many restrictions on their use as to prevent such use altogether. Since the medicinal use of cannabis has not caused and is not causing addiction, the prevention of the use of the drug for medicinal purposes can accomplish no good end whatsoever. How far it may serve to deprive the public of the benefits of a drug that on further research may prove to be of substantial value, it is impossible to foresee.

“The American Medical Association has no objection to any reasonable regulation of the medicinal use of cannabis and its preparations and derivatives. It does protest, however, against being called upon to pay a special tax, to use special order forms in order to procure the drug, to keep special records concerning its professional use and to make special returns to the Treasury Department officials, as a condition precedent to the use of cannabis in the practice of medicine. in the several States, all separate and apart from the taxes, order forms, records, and reports required under the Harrison Narcotics Act with reference to opium and coca leaves and their preparations and derivatives.

“If the medicinal use of cannabis calls for Federal legal regulation further than the legal regulation that now exists, the drug can without difficulty be covered under the provisions of the Harrison Narcotics Act by a suitable amendment. By such a procedure the professional use of cannabis may readily be controlled as effectively as are the professional uses of opium and coca leaves, with less interference with professional practice and less cost and labor on the part of the Treasury Department.

“It has been suggested that the inclusion of cannabis into the Harrison Narcotics Act would jeopardize the constitutionality of that act, but that suggestion has been supported by no specific statements of its legal basis or citations of legal authorities.”

Woodward’s prescient letter was placed in the record by Senator Brown at 11:37 a.m. and the subcommittee adjourned. Somebody ought to devote a PhD thesis to William Woodward, MD.