I had the pleasure of sitting down for a talk with UC Hastings Professor Reuel Schiller in his office last week. Schiller, who teaches legal history at Hastings, has a fantastic knowledge bank for the era when the first drug laws were coming in (i.e. post Civil War, pre-WWII). I thought that was reason enough to pester him and see if he would talk to me about early drug law. Surprisingly, he was polite enough to humor my pestering. (As an alternative explanation, it is fully possible that he is contractually obligated to humor students, no matter how pestering).
Schiller proved to have an uncanny ability to pull historical legal analogies and connections out from what might fairly be called my “obscure” question prompts. In fact, while almost none of Schiller’s work focuses on early drug law, the structure for our talk consisted mostly of me just providing quotes from books and cases I’ve been reading on the subject, and letting Schiller riff on the quotes for as long as he could (which was, without fail, impressively long). Schiller and I talked for about an hour, mostly focusing on the rise of the American regulatory state and how drug laws fit into that story. The conversation, which ensues, has proven immensely valuable for Mexican Opium for two reasons:
1. It was a fantastic opportunity to sit down with a bona fide American Legal History expert and leach his knowledge of the context and plotline surrounding early drug law.
2. It has finally afforded the opportunity to post a photo of an unbearded human being in this space.
What follows is an edited transcript from our talk. To make it more accessible, it’s broken down into general trains of thought that Schiller explored (although it should be noted that none of these quotes were as isolated as this format would make it seem.)
Schiller on some of the language in Territory v. Ah Lim (Washington’s first major opium case, 1 Wash. 156) and In Re Sic (California’s first major opium case, 73 Cal. 142), and the odd kinship these cases have with the progressive movement:
Racially motivated drug legislation fits within a model of increasing state power and growing regulatory machinery affecting every part of the lives of Americans in the late nineteenth century. What you have is a regulatory impulse that ends up aimed at drugs, partially because it’s aimed at everything. It’s a time in the U.S. when policy-makers are trying to create a more robust state.
In fact, if you read some of the language in [Ah Lim], and imagine that the case concerned railroad regulation rather than opium, it would be seen as an incredibly progressive case. What these cases are about is the power of the regulatory state, and the police powers. Ah Lim is a perfect example of this. It’s in line with, say, Munn v. Illinois and the majority in the Slaughterhouse Cases – asking, “Why would the court interfere with the legitimate regulatory activity of the state?”
These cases came before substantive due process had really kicked in as vigorously as it eventually would, when the idea of the police power was still very broad. It would have been uncontroversial that you would regulate in whatever way the state would see fit. Because most white Americans had all of these ideas about race and attributing different attributes to different races, it’s not surprising that they would base drug regulation on those ideas.
In fact, these judges would have been viewed positively by progressive reformers for letting the legislative process and the regulatory process work and not using the language of rights as a basis for weakening the power of the state to protect itself from vice.
Schiller on the drive toward defining professionals in all different fields at the end of the 19th century, and how, in turn, the medical community would have played a role in imposing certain drug legislation:
The regulatory impulse that you see at the end of the nineteenth century across all different areas is related to this idea of professionalization that is occurring at the time. The importance of uniform methods of training, uniform methods of accreditation and standards for defining specific requirements for given professions are all ideas that were welling up at the end of the 19th century. As a legal historian, you see it pretty clearly in the professionalization of law schools, the emphasis on “legal science” in legal education, and in the drive to add rigor to bar exams. But you also see it in the medical profession, you see it with nursing, you see it with social work.
It strikes me that there has to be a component of this move towards professionalization in the criminalization of drugs. The medical profession is trying to solidify its hold on certain types of interactions with people: interactions that involve curing. As a result, at the end of the nineteenth century the medical profession engages in a campaign to eliminate all of these “irregular” practitioners. Midwives, and the types of folk healing that exists in any type of traditional culture were to be replaced with the professionally trained doctors.
It doesn’t surprise me that part of this would include identifying drugs as “bad.” What doctors were doing was asserting that drugs were something that they should control, as medical professionals. Thus, when they were confronted with claims that Hindus, or Chinese, or Mexicans used opium or marijuana for medicinal purposes, they’re saying “We’ll be the judge of that.”
In a sense, this reaction is the same as their reaction to midwives: the birth process is a medical process, so professional doctors believed that they needed to be involved in that process and control it. The same thing happens with birth control.
Schiller on early Drug law and the efforts at assimilation of immigrants:
During the early 20th century, there were plenty of people who were irreconcilably opposed to any type of immigration. There were others who supported some amount of immigration so long as immigrants could be quickly assimilated – turned into “real Americans.” Doing so meant getting rid of your language and your customs. Arguably these drug laws are about that, too. We’re not going to deport people from Asia, but we’re going to strip them of the things that we associate with their non-Americanness – be it their “peculiar” drugs or their “odd” hair-styles.
Schiller on alcohol prohibition, as compared to other drug legislation:
For lots of regulatory legislation (especially regarding morals), the point at which large numbers of people start to object to regulation is the point at which the regulatory impulse has gotten out of control in such a way that it impacts them. You see this in a bunch of sectors. You clearly see it with the prohibition of alcohol. Alcohol, unlike marijuana or opium, is contested terrain throughout the nineteenth century and well into the twentieth century. It has this dual life. On the one hand, it’s a “corrupting vice.” On the other hand, it’s something that’s widely used in daily life. Now, there may have been more teetotalers and people committed to the idea of Protestant Purity during this era then there are now, but even then, it was clearly contested.
Once you get marijuana use creeping into white, middle-class households, it’s pretty soon thereafter that you see a reduction in the punishment for simple possession. This is a classic regulatory pattern. As an example, take speech regulation. It starts in the 19 teens and 20s with suppressing speech on the fringes, with radical anarchists and communists, or with pornography and blasphemous literature – stuff that is not that widespread. Once that regulatory impulse starts expanding, that’s when courts become concerned. When the State is suppressing the political speech of Wobblies, anarchists, or communists, the courts have no problem with that. But once these laws affect, say, labor unions that are actually becoming powerful within the Democratic party, suddenly courts take notice. Or once you start censoring not obscure pornographic playing cards, but rather James Joyce, well then suddenly the courts take notice. It’s when the regulatory impulse is focused on the fringes, on the politically marginalized groups, nobody cares, but when it expands and brushes up against people who are not politically marginalized, then there’s pushback.
Schiller on inertia and the persistence of drug legislation:
It is important to realize that even as society changes, laws have a certain inertia to them that can keep them on the books until they either become outdated or until new rationales are developed for them. You can assume that law shifts around with culture, but you must recognize that sometimes institutional mechanisms — the legislative process, or the administrative process – will prevent or delay legal change.
This inertia is one of the things that has kept drug laws in effect as society developed improved public policy rationales for them. We recognize that the reason to criminalize opiates is not because they’re used by a racial minority, but rather because of their huge cost to society, addicted people, etc… The point is that we shift [our motivations], and one of the things that allows for the motivational shift while still keeping the laws in place is inertia. On the other hand, the debate over the decriminalization of marijuana seems to be a debate over whether there is a legitimate public policy rationale for its criminalization, or whether it has simply remained criminalized because of inertia.
Schiller on whether there is a correlation between economic climate and regulation:
Frankly, as a historian, my inclination is to avoid these kinds of generalizations. If I had to generalize, I would say that there’s a correlation between economic volatility and regulation. Certainly that describes the 1890s and the 1930s, periods when you see increasing regulation of all kinds, including drug regulation. Really, the only generalization I feel comfortable making is that as society gets more complicated, that fuels the regulatory impulse.
Even when we talk about the decriminalization or legalization of marijuana, I don’t think there are very many people suggesting that decriminalization or legalization would result in less regulation, just a different kind of regulation. Frankly, it’s hard to imagine our society getting less regulatory – it’s simply too complicated.