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Living History: Timothy Leary & the Roots of the CSA

Image of a an old blue 5 cent stamp, represent the Stamp Tax Act that did not prohibit marijuana, rather the overlaying stamp of "Marijuana Tax Act of 1937" prohibits the use of marijuana.

In History

Living History: Timothy Leary & the Roots of the CSA

The Marihuana Tax Act remained in force for over thirty years.  Anslinger and his FBN used their darling legislation to eliminate all cannabis production – whether recreational, medicinal, or industrial – in the U.S.  The specific nature of their plan bears examination.

The Tax Stamp Act, consistent with constitutional limits on federal power, did not prohibit cannabis directly.  Indeed, Anslinger and his cronies very much wanted to do so, but the federal Constitution simply did not authorize Congress to regulate what American citizens could put into their own bodies; therefore, some workaround was needed.

Their solution was brilliant.  Treasury lawyers realized that while the feds couldn’t exercise a “general police power” to prohibit drugs, taxes were perfectly permissible – and so were any record-keeping requirements reasonably related to those taxes.

This insight proved the key to their scheme.  Thus the Tax Stamp Act didn’t technically prohibit cannabis but instead levied taxes on its transfer and required registration of all transactions in the drug; anyone who sold marijuana without registering was fined a punitive tax.  But farmers who attempted to comply with the law’s registration requirements soon experienced a rude awakening.

In the years running up to the passage of the Tax Stamp Act, Anslinger lobbied furiously for state governments to pass the so-called “Uniform State Narcotics Acts”, anti-drug laws passed on a state-by-state basis designed to create a united front against dangerous drugs.  But while the American Medical Association (instrumental in creating the Uniform Acts) opposed including marijuana among the prohibited substances, Anslinger went behind their backs and sent his force of field agents (who were supposed to be busting heroin rings) to aggressively lobby state legislatures until cannabis had been prohibited in every state.  Thus, after the passage of the Tax Stamp Act, the Treasury revealed its true motives: any farmer who sent in the required registration to sell any form of cannabis would be promptly arrested, tried, and convicted under the Uniform Act, because the federal Treasury would pass their registration on to the proper state government, which would then use the farmer’s registration as a confession against him in state court.

Anslinger had found his loophole in the pesky Constitution, and the federal government underwent an unprecedented expansion of its power to invade the private lives of citizens.  For three decades, this scheme effectively drove all production, sale, and ingestion of cannabis underground.

Along came Harvard.  The psychology professor turned guru had gotten himself kicked out of Harvard for giving psilocybin mushrooms to his students and kicked out of his compound in upstate New York for allowing a reckless party culture to grow.  In late 1965, Leary attempted to set up another commune in Mexico but found himself kicked out of that country before he could even cross the border.  He had no choice but to turn around.  When he tried to re-enter the U.S., a Customs agent searched his vehicle and found a joint.

Leary was charged with international trafficking of narcotics and violation of the Marihuana Tax Stamp Act.  His lawyers immediately succeeded in getting the trafficking charge thrown out because the doctor never succeeded in crossing the border. But the Tax Stamp Act charge went all the way to the Supreme Court, which in 1969 took the whole nation by surprise.

In a rare 9-0 decision, the Court unanimously struck down the Marihuana Tax Act as unconstitutional under the Fifth Amendment’s guaranteed protections against self-incrimination.  Leary’s lawyers successfully argued that under the two-tiered implementation of the Tax Act, there was no possible way to comply with the law without self-incriminating – providing a confession against one’s will.  The Court saw the Act as nothing more than an attempt to circumvent the Constitution at the expense of civil rights, and struck it down.

Thus, for a brief period, the federal government had no pot prohibition on the books at all.

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