Jurisprudence, Marijuana, Opium

Drugs? Law? How?

You can’t do research on American drug law without being 100-hand-slapped with jurisprudential musings on America’s drug policy. Some of these musings compare America’s drug laws to more liberal European countries, some rail relentlessly on the American prison industrial complex, and others, occasionally, crack deep into the marrow of the drug law debate and simply ask the question “Drugs? Laws? How?”

That last debate is the one that fascinates me the most, and is the debate that inspired this blog. It harkens back to a time that is difficult to imagine as a young man such as myself, who was raised in the 1980s crack epidemic/panic atmosphere. Back to a time before the Government’s position as gatekeeper to getting high was accepted as solidified. It questions something my generation never really had a chance to debate – not just a “Should the government legalize or not?” question, but rather a more fundamental “Wait, why are we talking about government and personal drug use in the same sentence?” question.

Two particular excerpts from my readings addressing this question continue to stand out to me. The first is from an 1890 case out of Washington state, Territory v. Ah Lim, one of the early opium cases. Justice Dunbar, writing the opinion, steps away from the case momentarily to espouse jurisprudence about the relationship of natural rights to the pioneering anti-opium-smoking legislation he upholds. At the time, the idea of a law banning personal drug use would have been seen as a comically overextended stretch of government power. So, Dunbar finds himself in a position of defending a law that most 1890s Washingtonians would have found inexcusably invasive if it affected them, but support because it targets the opium-smoking Chinese. Here’s the excerpt, where Dunbar justifies upholding such legal infringement on a personal pursuit, by tracing the evolution of civilized living:

It is common to indulge in a great deal of loose talk about natural rights and liberties, as if these were terms of well-defined and unchangeable meaning. There is no such thing as an absolute or unqualified right or liberty guarantied to any member of society. Natural rights and liberties of a subject are relative expressions, and have relative or changeable meanings. What would be a right of liberty in one state of society would be an undue license in another. The natural rights of the subject, or his rightful exercise of liberty in the pursuit of happiness, depends largely upon the amount of protection which he receives from the government. Governments, in their earlier existence, afforded but little protection to their subjects. Consequently the subject had a right to pursue his happiness without much regard to the rights of the government. The reciprocal relations were not large. He yielded up but little, and received but little. If he was strong enough to buffet successfully with the world, all well and good. If not, he must live on the charity of individuals, or die, neglected, on the highway. But now all civilized governments make provisions for their unfortunates, and progress in this direction has been wonderful even since noted sages like Blackstone lectured upon the inalienable rights of man. Not only is the protection of individual property becoming more secure, but the vicious are restrained and controlled, and the indigent and unfortunate are maintained, at the expense of the government, in comfort and decency; and the natural liberties and rights of the subject must yield up something to each one of these burdens which advancing civilization is imposing upon the state. It is not an encroachment upon the time-honored rights of the individual, but it is simply an adjustment of the relative rights and responsibilities incident to the changing condition of society.

Territory v. Ah Lim, 1 Wash. 156, 165-166. (I will likely revisit this case later in this blog project, as it sets the stage for a lot of drug law.)

Related to this 1890 excerpt, methinks, is the conclusion of The Forbidden Fruit and the Tree of Knowledge: An Inquiry Into the Legal History of American Marijuana Prohibition, by Richard J. Bonnie & Charles H. Whitebread, II. This article was published in 1975, nearly 100 years after Dunbar’s treatise, and spends the bulk of its pages denouncing marijuana law by slapping it on the wall in the incredibly ugly frame of its historical context (particularly its Mexican-hating motivations), and then arguing for a modern relaxation of the laws. Here’s their excerpt, starting with their synopsis of how drug laws of any type came into existence in America:

Utilizing police power defined broadly in terms of self-protection, the dominant segment of society sought to protect itself from contamination and to promote homogeneity. Legislatures and reviewing courts focused only on society’s interests, not on the “right” of the individual to deviate from the majority’s cultural norms; the courts were essentially closed to assertions of minority rights. Similarly the criminal process was administered not from the perspective of protecting the rights of the criminal defendant, but rather of protecting the society against deviance. Thus, during the period of Prohibition enforcement, the Fourth and Fifth Amendment rights were consistently ignored.

This, then, was the cultural milieu in which early twentieth century drug legislation took root, and the continuing effect of which also fostered the later suppression of marijuana. The society imposed severe restraints, on individual personal and social cont in order to both reap the societal benefits from the individual’s supposed economic and political independence, and to perpetuate the dominant cultural outlook.

In contemporary society, however, the perspective is quite the reverse. Economic and political institutions have become increasingly omnipotent; the individual is increasingly dependent on the system rather than the system dependent on him. More and more the individual views himself as a cog in the massive, impersonal, technological machine, the gears for which are beyond his grasp. Consequently, a higher value has been place on personal fulfillment in the non-economic, non-political sphere; a new emphasis has been placed on personal identity, and the individualized, deinstitutionalized pursuit of happiness. Concurrently, as economic productivity demands less of each individual’s time and energy, and the work-week continues to shorten, the leisure value has emerged. The society has less and less economic interest in what the individual does with his leisure time.

56 Va. L. Rev. 971, 1173-74 (1975).

The Bonnie/Whitebread article cites the Ah Lim case, so they were clearly aware of Dunbar’s passage. It strikes me that they may have written this section of their article explicitly as a direct counterpoint, or modern update, to Dunbar’s opinion.

I’m not going to analyze it any further than that, I just think that the two taken together provides an excellent layout for two of the main philosophies in the drug-regulation debate up to this date, and also provides an interesting illustration of the evolution (or lack thereof) our country has experienced over the last century and a half.



3 thoughts on “Drugs? Law? How?

  1. Mikelis, this is a terrific post, and a great series. I think more work on early drug law is long overdue, and I’m very excited to see what you come up with. This post inspired a longer comment on a blog I manage called “Points”–you can find the comment here: http://pointsadhsblog.wordpress.com/2011/01/25/drug-law-exceptionalism/

    As I say, I’m very much looking forward to the rest of your explorations on this subject!

    Posted by jspillane | January 25, 2011, 9:56 am


  1. Pingback: Drug Law Exceptionalism? | Points: The Blog of the Alcohol and Drugs History Society - January 25, 2011

  2. Pingback: But the replays are my favorite part… « Mexican Opium - January 25, 2011

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