Just What the Doctor Ordered: The Harrison Anti-Narcotic Act, the Supreme Court, and the Federal Regulation of Medical Practice, 1915–1919

Abstract

Just What the Doctor Ordered: The Harrison Anti-Narcotic Act, the Supreme Court, and the Federal Regulation of Medical Practice, 1915–1919 Kurt Hohenstein (bio) Kurt Hohenstein Kurt Hohenstein is a doctoral candidate studying American legal and political history at the University of Virginia. His article won the 2001 Hughes-Gossett Student Essay Award. ENDNOTES 1. Newspaper clippings relating to the Harrison Narcotic Act, 1915–1946: “Federal Agents Claim Harrison Act Violated Extensively Here,” Atlanta Constitution, June 15, 1915, General Records of the Bureau of Narcotics, Department of the Treasury; Record Group 170 (RG 170), National Archives Building, College Park, MD (NACP). This record will be referred to as Newspaper Clippings, Record Group 170. It consists of two threadbare scrapbooks of newspaper articles, opinion pieces, and editorials about the enforcement of the Harrison Anti-Narcotic Act of 1915. Many of the articles have personal notes on them, being referred from or to a particular person in the Bureau of Narcotics. There is no indication of who kept the scrapbooks, but it is clear that they were maintained by officials who were making enforcement policy for the Bureau of Narcotics. 2. William E. Clayton, Jr., “Federal Government Plans to Counteract States’ New Drug Laws,” Houston Chronicle December 30, 1996, 1. 3. 38 Statutes at Large 785, Chapter 1, December 17, 1914. 4. Ibid., Section 2. 5. Ibid., Section 2(a). 6. See, generally, James C. Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (Oxford University Press: New York, 1993). 7. William Butler Eldridge, Narcotics and the Law: A Critique of the American Experiment in Narcotic Drug Cases, 2d. ed., rev. (The University of Chicago Press: Chicago, 1967), 9. 8. David F. Musto, The American Disease, 3rd ed. (New York: Oxford University Press, 1999), 122. 9. 241 U.S. 394 (1916). 10. Ibid. at 399. 11. 249 U.S. 86 (1919). 12. 249 U.S. 96 (1919). 13. Ibid., 98. 14. Ibid., 99–100. 15. Musto, 133. 16. Ibid., 134. 17. Eva Bertram, Morris Blachman, Kenneth Sharpe, and Peter Andreas, Drug War Politics: The Price of Denial (Berkeley: University of California Press, 1996), 70–71. 18. R. Alton Lee, A History of Regulatory Taxation (Lexington: The University Press of Kentucky, 1973), 119. 19. For general histories of the Harrison Act, see Charles E. Terry, The Opium Problem (New York: Bureau of Social Hygiene, Inc., 1928); W.W. Willoughby, Opium as an International Problem: The Geneva Conferences (Baltimore: The Johns Hopkins Press, 1925); Musto; Ansley Hamid, Drugs in America: Sociology, Economics, and Politics (Gaithersburg, MD: Aspen Publishers Inc., 1998); and Mike Gray, Drug Crazy (New York: Random House, 1998). 20. For a full discussion of the Mann Act and the enforcement of its provisions by the Department of Justice, see David J. Langum, Crossing Over the Line: Legislating Morality and the Mann Act (Chicago: University of Chicago Press, 1994). There are interesting social and legal parallels between the passage and enforcement efforts of the Mann Act and the Harrison Act. For the purposes of this paper, the only issue considered is Representative Mann’s influence on the floor debate of both bills. 21. U.S. Congressional Record (63/1), June 26, 1913, 2193. 22. Ibid., 2194. 23. Lee, 1. 24. United States Constitution, Article I, Section 8. 25. Lee, 9. 26. Ibid., 9–10. 27. Musto, 70. Quoting Dr. Jonathan Pereira, from his standard medical British text, The Elements of Materia and Medica and Therapeutics, published in 1854 and widely used in America. The medical profession believed that opium was “undoubtedly the most important and valuable remedy in the whole Materia Medica” (1036–1046). 28. Musto, 100. 29. Terry, 631. 30. Musto, 31. 31. Terry, 649–650. The ten nations that did not sign the convention were Bulgaria, Greece, Turkey, Switzerland, Austria-Hungary, Norway, Sweden, Roumania, Montenegro, and Serbia. 32. Musto, 43–44. It is likely that this appeal had the perhaps unintentional effect of causing some southern congressmen and senators to reconsider their traditionally strong view of states’ rights in the areas of police power regulation, since their vote for the Harrison Act could be seen in the light of this discourse as protection against the rampant and...