Article VI of the U.S. Constitution states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding” [emphasis added]. For centuries, courts have recognized in this clause a clear statement of the supremacy of federal law, including foreign treaties, over state law; if ever a conflict arises between the laws of a state and a foreign treaty, the foreign treaty will control.
By late 1909 Hamilton Wright had realized that the Supremacy clause could prove the linchpin to his plan to make an end run around the Constitution and enact prohibitionist domestic drug laws. Having learned from his failures at the Shanghai conference, he sketched out his plan: Musto 41
The proposed treaty, were it ratified, would be the masterstroke. In such a treaty’s wake, any state which passed laws which conflicted with the treaty would run afoul of the Supremacy clause – and thus the federal government could strong-arm the states into doing its own policing. The feds would assist, of course; under Wright’s proposed legislation, anyone found in possession of narcotics without proper registration records would be presumptively guilty under federal law, and anyone who complied with federal law by registering could have their records delivered by the feds to state prosecutors, who would use the defendant’s registration as a confession against him. Thus the thorny constitutional issues of federal drug policing were tied up in a neat little bow.
Wright shopped the federal law portion of his plan around Capitol Hill, and on April 30, 1910 Rep. David Foster of Vermont formally introduced it as a bill. The Foster bill was sweeping and punitive, requiring fastidious recording of each and every minute amount of morphine, heroin, cocaine, chloral hydrate, and cannabis dispensed to any patient for any purpose; failure to register or record a transaction invoked penalties of up to $5,000 (a large sum in 1910) and up to five years’ imprisonment. A month later he appeared before the House Ways and Means Committee to defend it. There he encountered sharp skepticism from Southern Democrats, who remained quite wary of federal intervention; memories of Reconstruction remained sharp and clear. But Wright knew their Achilles’ heel. “[O]ne of the most unfortunate phases of the habit of smoking opium in this country” was, he sorrowfully reported, “the large number of women who have become involved and were living as common-law wives or cohabiting with Chinese in the Chinatowns of our various cities.” Nor were good white folk living in the rural areas safe from the drug menace, either, because the specter of cocaine had recently attained great popularity “among the humbler ranks of the Negro population in the South.” While Wright expressed puzzlement as to why more people weren’t aware of this dreadful menace (and indeed how the drugs got to remote rural areas in the first place, since “the lower order of working Negro is not willing, as a rule, to go to much trouble or send to any distance for anything”), he urged his audience not to belittle their fears, for “it has been authoritatively stated that cocaine is often the direct incentive to the crime of rape by the Negroes of the South and other sections of the country.”
Despite Dr. Wright’s virtuoso performance, the House remained hesitant to pass such an unprecedented expansion of federal power, and the bill stayed stalled in committee into 1911, the year that the Hague conventions were scheduled to convene. Thus Wright appeared at his own treaty convention, for the second time in a row, empty-handed. With him went Bishop Brent and an unseasoned California pharmacist named Henry J. Finger whose political connections to Secretary of State Philander Knox ensured his appointment. The choice mortified Wright, who wondered what Finger could possibly add to the discussion.
Wright soon found out. While at the convention, Finger “unexpectedly rose from his seat” to denounce the evils of cannabis, insisting that every sovereign nation present at the conference criminalize the pernicious drug to the full extent of the law. The other delegates, who had come expecting a conference on opiates, were mostly dumbfounded; only Italy supported the proposal, and the other nations merely expressed indifference and moved on. Yet despite constant negotiations, the Hague convention closed with no treaty, a failure more than one contemporary blamed on Wright’s roughshod diplomatic style. The countries pledged to meet again, which they did, in 1913 at The Hague again, and for a moment Wright appeared close to his triumph; but while the treaty was still two votes short of passage, the assassination of Archduke Ferdinand set off World War I, and the treaty was forgotten.
Nevertheless, the legislative gears Wright set in motion back in Washington, D.C. had not lost their momentum by that time, and the doctor rushed back home to try to salvage that much of his plan. Although the Foster bill was eventually killed while still in the House, Wright found another sponsor, Representative Francis Burton Harrison of New York, a Tammany Democrat who never minded a sip of whiskey but hated all narcotics. The Harrison bill, which was similar to the Foster bill in almost every respect, showed promise of better prospects than the ill-fated Foster bill, benefiting from a sweep of the House by a Democratic party comprised of crusading Progressives from the North and Dixiecrats from the South; if Wright could present a pitch combining muckraking aimed at the Progressives and race-baiting aimed at the Dixiecrats, he might shepherd the bill through. Even more crucial was the support of the American Medical Association (AMA) and the American Pharmaceutical Association (APhA), two powerful trade groups which had opposed the onerous recordkeeping of the Foster bill but would favor a version of the bill with simpler record-keeping requirements because they believed that tough federal legislation could shutter the patent medicine vendors, a mutual competitor.
That coalition of influential players proved sufficient. After amending the Harrison bill to give the AMA and APhA the simpler paperwork procedure they desired (and dropping cannabis from the regulated list due to widespread professional doubt of its supposed harms), the House passed it as HR 6282 on June 26th, 1913. The Senate passed its own, somewhat watered down version in August, but various compromise negotiations and procedural matters held up passage of a final version by both houses until December of the following year. On December 17th, 1914, with no fanfare or even a mention in the New York Times’daily legislative record, President Woodrow Wilson signed the Harrison Act into law.
Almost immediately, legal experts began debating how the Harrison Act would be enforced. Some argued that the intent of the bill was to collect records only, and to use such records as the basis for convincing state legislatures of the need for action. Others ominously pointed to the Act’s punitive fines for noncompliance, predicting that the Treasury, the federal department charged with enforcing it, would employ the act like weapon against drug dealers. Which side was proven right, and how, is the subject of the fourth and final installment in the series.
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