Two days ago, I posted a blog about jurisprudence and early drug law that mentioned the racist origins of west coast opium legislation. To my surprise, I received a comment in response to this post from Joseph Spillane, a history professor at the University of Florida. Spillane wrote an excellent book on the history of cocaine, a book that I have consulted before. He used my post to jump into an equally excellent and engaging commentary on his own blog about the dangers of viewing historical drug law with blinders on.
This is his post. He blogs with the Alcohol and Drugs History Society. (Incidentally, the blog is filled with other great stuff related to early drug law that don’t mention Mexican Opium.)
His rebuffing of Mexican Opium is worth reading. And probably correct.
That being said, I’m pretty sure that the purpose of internet discourse is getting the last word, so I wanted to post a response to his response.
[If you want the rest of this post to be of any real value to you, you should probably double back and click the link to his argument and read it. However, if you want to just get half of the value out of this post, I will attempt to assist with a fantastically rudimentary summary of his point about drug law exceptionalism. Essentially, he is saying that if we dwell on the specifics of how these laws got enacted, we’re missing the forest for the trees (i.e. “Yes, drug laws started out racist. But for one, everything was racist back then, and for two, drug laws are not some sort of crazy isolated racist monster – they’re part of a crazy harmonious legislative monster that was gobbling up everything in sight at that point, racist or not. Additionally, don’t miss the game because you’re busy watching the replays.”)]
I will open my response with an admission: I am not an expert. Between the paper I wrote that inspired this blog and the work I’ve done so far this semester, I’d be shocked if I’ve done even 150 total hours of work in the field of historical drug law. Spillane has no doubt put in thousands of hours of work in the field. In turn, Spillane is deeply steeped in American Drug Policy, and I am but a spritzed glass of virgin spring water. It would be foolish of me to claim any authority.
Sans authority, though, I think my greenness offers a perspective.
When I first discovered the racist sources of marijuana law, I was flabbergasted. I had never really thought about where our country’s marijuana laws came from, let alone entertained the notion that in some cases it came from legislative bodies sitting around and laughing about Mexicans. This moment was the first time in my life when I really felt history bending my perception of the present. I started talking to whoever would listen about these things I was discovering. Nearly everyone I spoke to was unfamiliar with the history and equally surprised. (Note: Surprised, not flabbergasted. Flabbergasted might be too strong of a word for the other people. You have to be a certain caliber of nerd to be flabbergasted by such a revelation.)
So, speaking from a recently-former-layman’s perspective, drug law history seems remarkably “exceptional” to me. It is the first history lesson I had that landed with such impact in my day-to-day life. (Paraphrased sample thought from this period of my life, to get the idea: “Well, of course American drug law in its current form is racist. It was set up that way.”) I feel as though, like most people, I was generally aware that drug law in this country is racist in its current form, but I couldn’t look away from that fact anymore when I discovered it was dyed in the wool as such.
Outside of drug law, the latter half of the 19th century was no doubt a period of great increase in governmental regulation in American life. Much of this increased regulation came as a byproduct of the industrial revolution, and as a snapback from the civil war. The government was starting to lay hands on everything, and people’s stashes were treated no differently. I think this is what Justice Dunbar is saying in the Ah Lim opinion cited in my last post. Spillane mentions this opinion in his commentary, and points out that long before opium was banned, alcohol prohibitions had popped up throughout the states, and the idea that the government could put hands on your consciousness was in no way foreign.
While I agree that this was an era of rapidly increasing moral control of law and law in general and that to simplify the moral extensions of law at this time to racial animus exclusively would be misguided, and I would also agree that alcohol prohibitions went in and out with regularity during this time period (implying that Americans were OK with government hands on their substances), I would argue two things that justify highlighting the racist circumstances of drug law enactment:
One – while the Ah Lim case gets to the philosophy justifying these laws, and this moral extension of the law, it isn’t quite as explicitly damning for the racist sources as some of the other earlier opium cases, and the other sources you can find make Ah Lim seem like a fair shake. One of the finest examples is an 1886 case out of Oregon denying a writ of habeas corpus for a Chinese resident who allegedly distributed opium, Ex parte Yung Jon, where Justice Deady, delivering the majority opinion, does not parse his words about the racial origins of the legislation:
[T]he use of opium, otherwise than as this act allows, as a medicine, has but little, if any, place in the experience or habits of the people of this country, save among a few aliens. Smoking opium is not our vice, and therefore it may be that this legislation proceeds more from a desire to vex and annoy the “Heathen Chinee” in this respect, than to protect the people from the evil habit. But the motives of legislators cannot be the subject of judicial investigation for the purpose of affecting the validity of their acts.
28 F. 308, District Court, D. Oregon (August 14, 1886)
I feel like you can’t really read that passage and think that banning opium wasn’t almost fully dependent on anti-Chinese sentiment. The opinion disclaims the role of race in the law in the same way that a guy at a party says, “I’m not racist, but listen to this great joke about black people.” (Although it’s worth noting that Justice Deady was not consistently so racist.)
I would say that there are two primary morals being legally confirmed with Yung Jon. The first is that opium smoking is bad, sure, maybe. The second is that thinking opium smoking is bad because you don’t like Chinese people is OK. While I’m not saying that opium smoking isn’t bad, the fact that part of the reason we accepted the former is because it was in the cloak of the latter is worth dwelling on, given that the latter would be considered abhorrent (or at least incredibly politically incorrect) in modern society.
On the flip side, not all decisions came down supporting legislation like this. For example, there is a borderline enlightened opinion from California, In re Ah Jow, which was decided the same month as Yung Jon. In dealing with a Modesto ordinance penalizing any person visiting a place where opium is sold or given away, regardless of mens rea, Justice Sawyer discharges the Chinese defendant on a writ of Habeas Corpus, proclaiming:
The ordinance applies to all citizens, as well as aliens, and deprives them of rights and privileges secured by the constitution and laws of the United States. If directed only against Chinese, then it would be void under the fourteenth amendment as discriminating against them.
29 F. 181, Circuit Court, D. California (August 23, 1886)
Clearly, there was debate about how these laws were to apply, and Sawyer falls to the side of saying “Hey! Wait a minute! This is unconstitutional, on top of being racist! Nice try, dudes!” Given that he fell to this side of such legislation, it shows that the arguments were still against legislation like this if you worked past the racism.
Two – It’s worth noting that the alcohol prohibitions at the time did go both in and out with the moral tide. Opium prohibitions (as well as several other prohibitions, marijuana being the other big one) went in with racial motivations around this time, and have stayed in since this time, mostly because of legal precedents established under racist conditions. Alcohol was a familiar substance, and thus could move with moral tides, but drugs like opium or marijuana were sunk as unfamiliar before they were able to establish themselves in American society. (Again, not to assume that they ever would have, but it’s a huge “What if?”)
While I don’t think that anyone who currently supports opium staying illegal does so because they hate Chinese immigrants, ensuing drug laws were passed based on precedents like Ah Lim and Yung Jon. When these ensuing laws were passed, a moral code disapproving of certain drugs became institutionalized in American society. This morality has since stagnated. It is my belief (again, from personal experience) that the most effective way to shake up this particular brand of stagnant morality is to illuminate the racist basin it came to settle in. On a level, highlighting the racism is playing off of shock value, sure, but I don’t think it does so to the point of distraction.
What I think I’m trying to say, Professor Spillane, is that if there ever was a good hand to overplay, it’s this one.