The Marihuana Tax Act of 1937

The Marihuana Tax Act of 1937 is often cited as the origin of the US federal government’s ban on cannabis. Sure, the language of prohibition has changed over the years, but this is the law that set the precedent for the ongoing policies we live with today—or so the story goes. Yet few know that The Marijuana Tax Act of 1937 is neither the beginning nor the end of the story of the federal government’s divisive dealings with the drug.

Rather, the Marihuana Tax Act of 1937 is best understood as a critical turning point in the country’s attitude toward the plant, its possibilities and its “perils”. And seen through this lens, as a contested, controversial and tremendously unpopular measure, the current state of weed politics in the US makes a lot of sense. Not too much, in other words, has changed.

We all know history has a tendency to repeat itself. First as tragedy, then as farce, as Marx memorably quipped. Keep that in mind as you dive into this brief history of the Marihuana Tax Act—emphasis on the “h”.

We’ll look at what the Marihuana Tax Act of 1937 was, what it did, and how in so many ways it is the perfect embodiment of everything that’s backward and frustrating about the federal government’s steadfast refusal to end the ban on cannabis today.

The Marijuana Tax Act of 1937: Regulation or Prohibition?

Most people think of the Marihuana Tax Act as the law that began prohibition on cannabis in the United States. Technically, however, the act gave the federal government the power to regulate marijuana.

There was a legal strategy behind regulation. Unlike outright prohibiting marijuana, placing a tax on it was more difficult to challenge in court. And from that perspective, the strategy worked. The Marihuana Tax Act stood from 1937 until 1969.

But regulation and taxation; that sounds a lot like arguments made today in favor of federally legalizing cannabis. So what did the act really do? And why do people consider it to be the birth of cannabis prohibition in the United States?

On The Eve of the Marihuana Tax Act of 1937…

The truth is that the United States federal government began regulating and restricting the sale of cannabis as a drug more than 30 years ahead of the Tax Act, starting in 1906. Local laws had regulated cannabis as far back as 1860.

But by the mid-1930s, the popularity of cannabis was on the rise. On top of that, industrial hemp production was experiencing something of a resurgence.

The hemp point is worth mentioning because of a popular theory about the Tax Act. This theory holds that the Tax Act was an effort to subvert the reemergence of the hemp industry, orchestrated at the highest levels by some of America’s most prominent businessmen.

So let’s introduce a few characters into the story. Enter Andrew Mellon, William Randolph Hearst, and the DuPont family. Each had reason to fear competition from the burgeoning hemp industry and financial incentive to halt its expansion.

Hearst was a logging and timber tycoon. Hemp was quickly becoming a much cheaper substitute for paper pulp, especially during the Great Depression.

The DuPont family had just developed nylon, a fiber in direct competition with hemp-based textiles. (To this day, the DuPont family denies this connection. They say they were up against silk and rayon, not hemp.)

And Andrew Mellon was at the time the wealthiest individual in the US. He also happened to be Secretary of the Treasury and have extensive investments in DuPont.

So that was the situation leading up to the Marihuana Tax Act of 1937. It was one in which powerful forces appeared in league to make sure that if marijuana was going to be a cash crop of the future, the wealthy had better get their cut. Sound familiar?

What The Marihuana Tax Act of 1937 Did and Didn’t Do

The Tax Act wasn’t a straight-up prohibition on marijuana. What it did was impose a bevy of exorbitant taxes, regulations and restrictions on the commerce in marijuana from top to bottom.

It takes only a few minutes to read through the Marihuana Tax Act, which spans just six pages. But here’s the tl;dr version.

SEC. 2. (a) Every person who imports, manufactures, produces, compounds, sells, deals in, dispenses, prescribes, administers, or gives away marihuana shall […] pay the following special taxes respectively:

What follows is a five-item list of special costs for anyone and everyone involved with marijuana. And it’s not just importers, growers, manufacturers, producers. Physicians, dentists, vets, and other healthcare professionals, who had up to that point been pioneering the study and use of cannabis as medicine, now had to pay up.

The problem was that these special taxes were so high and so comprehensive, with so few exemptions, that most of the people involved in the commerce of cannabis would not be able to pay them. And if you didn’t pay your weed taxes, the Marihuana Tax Act made you a criminal.

SEC. 4. (a) It shall be unlawful for any person required to register and pay the special tax under the provisions of section 2 to import, manufacture, produce, compound, sell, deal in, dispense, distribute, prescribe, administer, or give away marihuana without having so registered and paid such tax.

There’s a few more nuts and bolts, but that essentially sums up the law. Under the guise of taxing and regulating marijuana, what the Marihuana Tax Act actually ending up doing was making marijuana illegal, since no one was about to register and start paying the outlandish taxes on something people could grow in their own backyards.

The Legacy of the Marijuana Tax Act of 1937 and the Fight For Legalization Today

In 1937, as now, the federal government’s restrictive policy on marijuana was the subject of intense debate. Then, as now, marijuana prohibition was tremendously unpopular and actively resisted. And then, as now, proponents and detractors came to the table with different, competing sets of data.

Now’s a good time to introduce one Mr. Harry J. Anslinger, the godfather of prohibition and archetype of virtually every anti-cannabis zealot in the United States.

If you have a problem with the federal government’s ban on cannabis today, blame Anslinger. Have an issue with the decades of racial disparity in drug enforcement? You can blame Anslinger for that, too.

As first Commissioner of the Federal Bureau of Narcotics, a post he held from 1930 to 1962, Harry Anslinger was instrumental in birthing the Marihuana Tax Act of 1937. But before he became head of the Bureau of Narcotics, Anslinger had frequently denounced the fear-mongering around cannabis use.

Anslinger disputed claims that cannabis use was a problem and harmed people. He once said “there is no more absurd fallacy” than the notion that cannabis makes people violent.

Harry J. Anslinger: The Jeff Sessions of the 1930s?

But in the early 1930s, Anslinger did a heel turn on the issue of cannabis. Historians point to two reasons. First, after the prohibition on alcohol ended in 1933, the Department of Prohibition Anslinger headed became obsolete and he was out of a job. Ushering in a prohibition on cannabis would reinvigorate Anslinger’s career. Now, he had a purpose again.

The second reason is, unfortunately, more familiar. Harry Anslinger was a virulent, unapologetic racist. And as he ratcheted up his fight against marijuana, he doubled down on the racist overtones of his rhetoric, best encapsulated by this cringe-worthy epithet: “Reefer makes darkies think they’re as good as white men.”

Insofar as Anslinger frequently couched his anti-marijuana campaign in the language of white supremacy, he was basically the Jeff Sessions of the 1930s. That racism is embedded in the title of the act itself. Marihuana, with an “h,” was a derogatory term Americans would have associated with anti-Mexican and anti-black sentiment.

Trump might have taken a liking to Anslinger as well. Both cunningly used the mass media to propel their fringe views to the political mainstream. And both used these platforms to disseminate “alternative facts” designed to mislead public opinion.

Indeed, Anslinger partnered up with none other than William Randolph Hearst to flood the public with false or fraudulent stories about the terrible crimes supposed to have been committed by marijuana users. Anslinger called these the “Gore Files.”

Fun fact: Anslinger also hated jazz about as much as he hated jazz musicians. He went so far as to set up a nationwide dragnet of jazz musicians and kept an official file called “Marijuana and Musicians.”

The Marihuana Tax Act of 1937 Was An Attack On Healthcare and Patient Rights

While Harry Anslinger and his wealthy cronies succeeded in whipping up a frenzy of “reefer madness” in the United States, calmer heads remained committed to challenging the Marihuana  Tax Act of 1937 on the basis of the restrictions it put on healthcare providers and patients.

In the lead up to Congress passing the act in 1937, the American Medical Association came out sharply opposed to the bill. The AMA argued that the tax placed an undue burden on physicians prescribing cannabis, the pharmacists who sold it and medical cannabis producers.

Dr. William Creighton Woodward, legislative counsel for the AMA in 1937, blasted the bill for being prepared in secret. The formal opposition had no chance to make its case. Woodward also seriously doubted the widely circulated claims about marijuana addiction, violence and overdosing.

And he pointed to this interesting fact about the Tax Act. By using the term marihuana, Woodward argued that healthcare professionals weren’t aware of the act’s full implications.

Doctors, in other words, knew the drug by its botanical name Cannabis Sativa, not the derogatory and racially tinged word used in the Tax Act. Indeed, few at the time really knew the word “marijuana” at all.

“Marijuana is not the correct term,” Woodward wrote. “Yet the burden of this bill is placed heavily on the doctors and pharmacists of this country.”

Despite Woodward’s last-ditch efforts to stop the act from passing, Congress made their decision based on a different set of reports supplied by none other than Anslinger himself.

The Death Of The Marihuana Tax Act of 1937 and the Birth of Modern Prohibition

Rushed-through legislation, behind-closed-door meetings, lawmakers making decisions based on incomplete, inaccurate, and misleading information that serves the interests of wealthy individuals over the general public’s. In so many ways, the story of the Marihuana Tax Act of 1937 bears many resemblances to the story of the fight for cannabis reform in legislatures across the US today.

The Supreme Court finally overturned the Marihuana Tax Act in 1969, in Leary v. United States. The court ruled that the act violated the Fifth Amendment and was therefore unconstitutional. Indeed, you had to incriminate yourself in order to pay your marijuana taxes.

But the spirit of the Marihuana Tax Act lives on. Namely, in the Controlled Substances Act Congress passed in 1970, which ultimately repealed (and replaced) the 1937 law. Jumping ahead nearly fifty years—well, more than 80 since the Tax Act—the US federal government still considers cannabis to be a Schedule I substance, with “no currently accepted medical use and a high potential for abuse.” We live with that prohibition today. But times, they are a’changin’.