Hi
I had heard that the ingestion of narcotics was a constitutional right until it was successfully challenged by the Harrison Tax Act of 1914. Does the “constitutional right” refer to states’ rights or the 'pursuit of happiness" principle?
Which article of the US Constitution was there Harrison Tax Act of 1914 able to challenge?
I look forward to your feedback.
Here is the relevant court case:
United States v. Doremus, 249 U.S. 86
I’m not sure any part of the OP’s statement is true.
Narcotics were not a constitutional right in any way. Opium dens had been outlawed in San Francisco as early as 1875. Wikipedia says that “By 1914, forty-six states had regulations on cocaine and twenty-nine states had laws against opium, morphine, and heroin.”
Even so, the Harrison Act did not constrain a constitutional right to ingest anything. It was a bill that taxed and regulated production, importation, and distribution. It tried to stamp out the illegal trade in such drugs, not to make the drugs illegal per se. Alcohol had already been subject to similar taxes throughout the history of the country.
The case cited by PastTense declared a revenue provision of the Harrison Act unconstitutional, but the basic structure of Harrison was accepted. I’m not sure where the OP heard the contrary but you need either to check the context or dismiss it entirely.
The Harrison act was challenged because although it regulated and taxed drug trades its purpose was to prevent people from taking drugs. It was challenged on the basis that while the constitution allows congress to pass taxes the kind of police power that would allow a government to restrict the drug trade only belongs to the states.
The Supreme Court in 5-4 decision found that while the intention may have been to police the drug trade, doing it via taxation was constitutional and the law was upheld.
There was never a question as to whether taking drugs was constitutional right, just whether the federal government could restrict it or just the states.
Yeah, I’m going with Exapno on this. There’s no constitutional right to narcotics, and the Harrison Act said nothing about constitutionality.
Furthermore, constitutional rights and states’ rights are not the same thing (although there are obvious connections and tensions between the two concepts), and the “pursuit of happiness” appears nowhere at all in the Constitution; it was a phrase from the Declaration of Independence.
Note that “pursuit of happiness” didn’t mean how it’s usually is taken today. Jefferson meant “pursuit” as in “avocation.” The intention was to say you have the right to work in whatever you enjoyed.
Thanks Exapno Mapcase.
Let me know what you think of what is said on the subject of the Harrison Act and the constitutional freedom to ingest narcotics 10.30 minutes into this video. It’s probably nonsense.
22.37 minutes into the video, it mentions the legality of drugs
Something being legal is very different from a constitutional right to use something. Just because a particular drug (or whaever) has not (yet) been made illegal, doesn’t mean that you have a constitutional right to use that drug, or that laws criminalizing the drug would be unconstitutional.
The section of the video, at 22:37, is talking about the San Francisco ban on opium as the first law making a drug illegal. The narrator then says that “with the exception of this very localized restriction, there is no such thing as an illegal drug on the national level.” This is simply a straightforward statement about how the law works. If no-one has passed a law making something illegal, then it is generally, by default, legal.
That doesn’t make any sense to me. An avocation is what you do when you’re not working, so the phrase can’t mean the right to work in what you enjoy.
33.55 into the video
“The Constitution guarantees the right to use whatever drug one wants”
Is this statement correct?
Cliff Schaffer, historian (34.04) then goes on to mention how prohibiting drug use was considered unconstitutional because it violated states’ rights and “the invasion of the personal space”.
I’m trying to verify these claims. I hope someone can cite directly from the Constitution on these claims.
No.
Why don’t you read the damn thing yourself? The US Constitution is not especially long, and nor is it, in its plain language, particularly complicated. If you’re really interested in Constitutional issues, then it’s not too much to ask that you read the Constitution.
What is far more complicated than the Constitution itself is the issue of competing interpretations of the Constitution, including how much authority it places in the hands of different branches of the federal government, and how much it leaves to the states.
The talking head who is discussing states’ rights and the question of personal space in the video is repeating the arguments made by those who, in the early 20th century, argued against a federal prohibition on drugs. Historically, a lot of claims about the limited power of the federal government, and the rights of individuals and states to make their own decisions, rest on the 9th and 10 amendments to the Constitution. The 9th makes clear that the people retain rights that are in addition to the specific rights enumerated in Amendments 1 through 8, and the 10th reserves to the states and to the people any rights not explicitly given to the federal government by the Constitution.
Over time, however, a long history of laws and court decisions have left in the hands of the federal government the power to do a lot of things. Some people believed, and still believe, that much of what the federal government does is in violation of the original spirit of the Constitution, which saw the federal government as one of limited and specifically enumerated powers. Other people, though, argue that the nature of federal government authority necessarily changes in an increasingly complex and technological society.
It’s no surprise that the Harrison Act was passed during the Progressive Era, a time when a considerable number of Americans argued for a more expansive and regulatory role for the federal government. If you want an articulation of this worldview, look no further than Teddy Roosevelt’s 1912 speech to the Progressive Party convention, where he rails against states’ rights and makes an argument for federal regulation is areas such as women’s voting, wage and hours laws, and government oversight of corporations.
Very generally speaking, the notion that the federal government could pass national laws that set forth a standard of legality was slow to develop. Many people believed that one of the features of our odd system was that each state could make laws for itself, based on local needs and preferences. This shows up most clearly in the arguments over slavery, where owning slaves was prohibited over time by northern states and fiercely insisted upon by southern states.
Similarly, prohibition of alcohol was enacted in hundreds of communities and many states before 1919. Part of the battle over national prohibition was the feeling that the federal government couldn’t constitutionally override local preferences. That’s why the Prohibition forces felt it was necessary to pass a constitutional amendment rather than simply a law.
The modern state’s rights movement is a remnant of these older attitudes. But the national consensus has swung toward the ability of the federal government to make these laws.
The Constitution did not change through time (except for specific amendments on slavery and Prohibition), only our interpretations of what it allowed. Saying that a person has a constitutional right to do something that is not specifically prohibited is loose language that has little legal meaning. Passing a law prohibiting any activity does not take away an constitutional rights or else a court could rule that way. Barring a court’s ruling, laws are considered constitutional and banned activities are merely things one cannot legally do, not a matter of lost rights.
In other words, the view in the early United States was that the federal government didn’t have the authority to ban drugs, but (and this is important) the states did. If there were a Constitutional right to do drugs, then the states would not be allowed to ban them.
Now, it may be that for some period of time, no state happened to pass laws against drugs. But the states could have banned them, if they wanted to.
Thank you Exapno Mapcase and Chronos for clarifying the the bias in that film. Please tell me which of the framers best helped future generations understand how to keep the principles and spirit of the Constitution intact, as they had intended.
Despite what the schoolbooks (and the originalists) say, the writing of the Constitution was a series of compromises and evasions and misunderstandings.
First, the drafting process was deliberately kept secret. There were no official logs or summaries of the daily arguments. All we know comes from private notes, some of them written much later. Those reveal that every person there had a different vision of the new government. People advocated for their favorite positions, others countered. When the pressure to finish got high enough they compromised. Or, worse, they contrived to not consider the subject at all and let later generations decide, as with ending the importation of slaves twenty years later.
They also took many things we consider crucial for granted. The Bill of Rights was simply assumed. It was only added as amendments later on when they learned that the Constitution would never be accepted without them. Also assumed was that the rabble, i.e. the ordinary people, shouldn’t have much to say about the government. They only got to vote for the House, and not directly for President or the Senate. Another assumption was that the Supreme Court was a minor, not co-equal, branch. There are dozens more like these.
Finally, the founders looked at the Constitution in almost exactly opposite ways while they were in office than when they were on the outside. Jefferson is the best example of this. This is partly due to the rise of political parties, which the framers hated and so ignored during the writing.
They collectively threw a bomb into the air without having any idea of where it would land, what damage it would do, or if it would go off at all. Not one of them saw the future. They were responding to the failings of the past. Once the country formed they made the best of what they had done moment by moment, always reacting to current problems and almost never with any long-term vision. This continues to be true today. It has to be as long as mere people are in charge of the world.
And some of the vague language in the Constitution comes from those disagreements: If they couldn’t resolve a difference, then they found some way to phrase things that could be interpreted either way.
Thanks again Exapno Mapcase. Very helpful. Thank you all.
Everyone has touched upon it, but the more succinct version is as follows:
Originally it was not believed that the federal government had any power (absent limited exceptions) to regulate internal actions in the states. Therefore, whether drugs were legal, illegal, some legal some illegal, or any combination was solely a matter for a state government. There was never a constitutional right to use drugs, but in most states you could because a state had declined to regulate them.
During the Progressive Era, many wanted the federal government to take a more active role in the daily lives of citizens, but the damn Constitution got in the way because it had no power. But, hey, some genius said that the feds DO have the power to tax, so we will levy a tax on these drugs and if you don’t pay a tax, bam, federal offense!
The case cited above said that was legitimate even though the purpose was not really to raise revenue, as is the purpose of most taxes, but to regulate.
Starting in the 1930s, the Supreme Court allowed the feds to regulate things directly under the Commerce Clause. Prior to that, the universal consensus would have been that smoking opium in your living room is in no way interstate commerce. You aren’t buying anything and you are smoking it entirely in one state.
After the judicial expansion of the commerce clause, the idea was that even if you grow and smoke opium on your own property, your actions affect the interstate opium market because your actions, when taken in concert with others can affect that interstate market. It was also held that a regulation of an interstate market could amount to a desire to make there be no interstate market at all for a particular commodity.
As a result of these decisions the federal government was able to prohibit drug use, possession and delivery directly (like we have today) without the need to get creative by calling it a tax.