Senators Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), and Rand Paul (R-KY) recently joined together to announce their co-sponsorship of a senate bill that would ostensibly pave the way for legalized medical marijuana in the United States. During their press conference Senator Booker declared, “Our federal government has long overstepped the boundaries of common sense, fiscal prudence and compassion with its marijuana laws. These laws must change.” Though he surely has a point with regard to the federal government’s current stance on marijuana prohibition, a look back to the nineteenth century shows our nation’s history offers broad historical precedent for precisely what he now seeks: state regulation of medicinal cannabis. Indeed, rather than drawing on arguments wrapped up in appeals to common sense, compassion, or fiscal prudence, Senators Booker, Gillibrand, and Paul might actually be better served with an appeal to the legal precedents of the past.
For those unaware, the dried leaves, flowers, stems, and seeds commonly referred to as “marijuana” are actually drawn from a genus of flowering plants known as Cannabis. Following its formal introduction to American medicine around 1840, cannabis immediately received both praise and skepticism. Spurred by a series of medical experiments, especially those conducted in India by Dr. William Brooke O’Shaughnessy, American doctors rushed to replicate and test O’Shaughnessy’s largely positive assessment of cannabis as medicine. The results were decidedly mixed. Some found obvious benefits; others found a series of frightening symptoms associated with cannabis overdose. Nevertheless, most believed that cannabis merited a place in the country’s pharmacopeia; and by the 1850s pharmaceutical and medicinal preparations of cannabis were readily available in American pharmacies.
What emerged from these early decades with medicinal cannabis – including a great deal of personal experimentation – was a distinctive blend of scientific inquiry and artistic expression that laid the foundation for an American understanding of cannabis and its effects that lasted well into the twentieth century. On the eve of the Civil War, general classifications of cannabis included: hypnotic, anodyne, narcotic, intoxicant, stimulant, and poison. What was almost always present throughout the nineteenth century, however, was the belief that cannabis was a potentially dangerous substance. This was true even among those who otherwise found it quite useful in treating a variety of medical conditions and ailments. In short, cannabis, like most all drugs, could be both helpful and harmful.
In addition to continued calls for research and experimentation, this belief landed cannabis alongside arsenic, chloroform, opium and many other drugs as the target of broad, state-level efforts to regulate the sale of medicines and poisons throughout the late-nineteenth century. New York, for example, included cannabis in the state’s 1860 poison law. Wisconsin did the same two years later, and many more followed. Still others passed general poison statutes but refrained from listing individual drugs by name – following the advice of the American Pharmaceutical Association, which declared the enumeration of poisons by law “objectionable.” Specific lists, the APhA argued, would be incomplete and unnecessarily burden law enforcement while limiting the effectiveness of legislation. By the turn of the century, states across the country placed restrictions on cannabis in some way or another. During an era when few, if any, believed the federal government could constitutionally regulate such matters, state laws reigned supreme.
Though few of these nineteenth century laws would be considered strict drug prohibition when measured by the standards of the present war on drugs, they were legal restrictions on cannabis nonetheless. Common state-level legislation established a range of restrictions, prohibiting: the sale of adulterated drugs; erroneous or improper packaging and labeling; sales or transactions with minors; and inappropriate prescription refills. Many of these same types of issues have now resurfaced as Colorado, Washington, Oregon, and Alaska move forward with legalizing cannabis for both medicinal and recreational use. Thus, just as these nineteenth-century state-level regulations ultimately formed the foundation for the legal evolution toward federal drug control, so too might states again serve as laboratories for the decentralization of marijuana prohibition. This is a possibility that Senator Paul might well find compelling, given his assertion that, “There is every reason to try to give more ease to people in the states who want this – more freedom for states and individuals.”
In present debates over marijuana legalization and medical marijuana it is often only part of this history on display, with supporters readily noting that American physicians regularly and enthusiastically used cannabis throughout the nineteenth century to treat a wide range of ailments. While it is true that many physicians frequently recommended medicinal cannabis, they generally did not do so unequivocally. Propelled by a desire to consolidate their professional position as guardians of potentially dangerous medicines and poisons as well as a growing fear of habitual drug use, these same physicians successfully lobbied for legal restrictions that often included cannabis. What transpired between 1860 and 1910 therefore runs counter to many of the popular histories of cannabis use put forth by “legalize-it” groups today while simultaneously offering a nineteenth-century glimpse at the possibilities of marijuana federalism.