Part II: Expanding a Liberal State in a Federal System through Narcotics Criminalization
IV. The Decade-Long Legal Battle over Congress’s Power to Regulate Drugs
federal power, and he found himself in unusual company in doing so. For joining Holmes in the majority were Chief Justice White as well as Justices McKenna, Van Devanter, and
McReynolds—all of whom shared a limited view of the federal government and its powers.63 A decade of legal challenges to other provisions of the Act followed Jin Fuey Moy, and the Court’s decisions in these cases saw the justices advancing two competing visions of the federal
government and its power. One group of justices, including Holmes, saw federal power as
capacious and proved willing to accommodate broad uses of Congress’s enumerated powers. The second group, of which Justice McReynolds proved the most vocal, sounded two notes in their resistance. First, in an argument founded on both federalism and liberalism, they contended that the Act represented congressional assumption of the police power—authority never granted in the Constitution. Second, they highlighted how portions of the Act trounced on hitherto lawful behavior, changing the meaning of the privileges that adhered to U.S. citizenship and residency.
Before 1930 the Court would settle on a new balance of federalism, individual liberties, and state action—but not before a dozen years of infighting that revealed both the significance of the changes Congress sought and the depth of resistance to those changes.64
Physicians arrested under the Act first confronted the courts with the claim that Congress had assumed powers reserved for the states. Their challenges involved their prerogative to
63 Jin Fuey Moy, 241 U.S. at 398. For evidence that White, McKenna, Van Devanter, and McReynolds subscribed to a view of the federal government as sharply circumscribed in its powers, one need look no further than Chief Justice White’s dissent in United States v. Doremus, discussed in some detail below. Joined by the other three justices, White opined that the section of the Harrison Act challenged in that case had been “beyond the constitutional power of Congress to enact because … the statute was a mere attempt by Congress to exert a power not delegated, that is, the reserved police power of the States.” United States v. Doremus, 249 U.S. 86, 95 (1919).
64 For brief discussions of the Supreme Court’s narcotic-related jurisprudence during this period, see Musto, The American Disease, 128-32, 183-89; Joseph F. Spillane, “Building a Drug Control Regime, 1919-1930,” in Federal Drug Control: The Evolution of Policy and Practice, Jonathan Erlen and Joseph F. Spillane, eds. (New York:
Pharmaceutical Products Press, 2004): 25-59, 34-42.
distribute narcotics to habitués. Federal officers insisted that doctors could prescribe drugs to addicts only for a medical reason or to effect a cure of their addiction. Physicians contended that the Act allowed them to distribute narcotics to “maintain” habitués—to allow them to continue consuming narcotics at their present rate and thereby stave off the uncomfortable or even fatal effects of withdrawal.65 When Treasury agents pursued actions against doctors who helped maintain addicts, courts across the country heard Harrison Act challenges.66 In fighting their arrests, physicians argued that such regulation of medical practice had nothing whatsoever to do with revenue collection—that once doctors and dealers paid the taxes owed under the Act, any further restriction made the law a general police measure. And such a measure, they argued, Congress had no authority to pass.
Resolution of these cases turned on how far courts would allow Congress to extend its revenue power. When it began to look like a general police power under another name, would courts determine Congress had gone too far? Some courts that heard these challenges responded in the negative and applied a lenient standard to government action. Judge Learned Hand, who presided over one such trial, made expressly clear how little—in his view—the government had to demonstrate. “The statute must be sustained,” he wrote, “so long as any plausible support for it can be found.” Hand, like other judges who upheld the Act, saw the limits on physicians as drawing narcotic sales into the open, allowing federal officials to track sales more precisely, and
65 Inarguably, from the perspective of the habitués who depended on physicians for maintenance, the Court’s determination that such distribution fell outside the practices permitted under the Harrison Act proved the most important consequence of the law. For discussions of the Act as it concerned narcotics addicts, see Alfred R.
Lindesmith, The Addict and the Law (Bloomington: Indiana University Press, 1965); Jill Jonnes, Hep-Cats, Narcs, and Pipe Dreams: A History of America’s Romance with Illegal Drugs (New York: Scribner, 1996), 50-4.
66 Blunt v. United States, 255 F. 332 (7th Cir. 1918); Foreman v. United States, 255 F. 621 (4th Cir. 1918); Hughes v. United States, 253 F. 543 (8th Cir. 1918).
preventing habitués from securing supplies they could resell.67 Under Hand’s formulation, Congress’s ability to claim for itself something akin to the police power appeared unimpeded.
Not every lower court agreed. The well-publicized case of Arthur Blunt offered one court the opportunity to strike down the law’s control over physicians and throw a wrench in
Congress’s claim to police-like powers. In his sixties by the time he came to public attention, Blunt practiced in Chicago in a West Harrison Street office two blocks from Grant Park.
Assailed by the government as the mastermind of a profitable drug trade—prosecutors alleged he wrote 20,000 prescriptions in the six months before his arrest, and charged up to $1 for each—
Blunt saw himself as the protector of addicts who had lost access to narcotics. According to press reports, at his arraignment he claimed to have “saved 600 men from death and worse than death since” the Harrison Act took effect. When a jury found him guilty in October 1915, he became the first physician in Chicago convicted under the Act. While he appealed, prosecutors claimed, Blunt continued to distribute narcotics to known addicts, resulting in a second arrest and trial.68 He appealed that conviction, too.
While Hand hypothesized a relationship between the Act and revenue collection, the court that heard Blunt’s appeal saw the Act as endeavoring to do too much to be a mere revenue measure. It invalidated the law as outside the scope of Congress’s authority. Though it
acknowledged that, in passing legislation for the collection of revenues, Congress may lawfully have other motivations, the court claimed Congress’s effort to control intrastate sales bore no relation to its taxing power. Rather, the court saw it as “an attempt, in the guise of an incidental
67 Hughes, 253 F. at 544-5; Foreman, 255 F. at 623-4; United States v. Rosenberg, 251 F. 963 (S.D.N.Y. 1918).
Hand went further, adding what may well have been on other judges’ minds as they considered the issue: Addicts, he claimed, were “of greatly impaired will and of little sense of social obligation” and were “unlikely to observe any law which imposed upon them an excise as a condition of resale.”
68 Chicago Tribune, September 2, 1915; October 21, 1915; October 22, 1915; October 31, 1915; December 5, 1915;
December 5, 1917; December 7, 1917; December 8, 1917; January 3, 1918. Blunt had run-ins with the law prior to his trials in federal court. In 1911 and again in 1912, he was arrested and tried for violating state drug law. Chicago Tribune, January 14, 1915.
tax regulation, to exercise the police powers reserved to the states.”69 Before the issue reached the Supreme Court, then, the lower courts had come to different conclusions as to whether
Congress had the authority to regulate physicians’ practices. Jurists were not of one mind when it came to their review of the Harrison Act—at least some held the national legislature to a more exacting review and required it to prove a regulation’s relationship to revenue collection.
While a number of lawsuits worked their way through the lower courts, a pair of cases brought the issue of Congress and the states’ police power before the Supreme Court in 1919.
Both involved charges that a physician dispensed narcotics to known addicts for maintenance—
and made a good deal of profit in the process.70 In their trials and on appeal,71 the defendants challenged their arrests as made pursuant to a police act, rather than a revenue measure.72 Despite legislative history and popular consensus that suggested otherwise, the government argued the law’s “main purpose” was to serve as “a revenue measure.” Perhaps understanding the vulnerability of its claim, it did not rest on this contention. It also offered the Court a catalog of other instances in which Congress exercised its taxing power for purposes other “than mere revenue,” including protective tariffs, federal licenses to sell lottery tickets, and others. The
69 Blunt, 255 F. at 335-6.
70 Tr. of Record, United States v. Doremus, 249 U.S. 86 (1919), 1-6; Tr. of Record, United States v. Webb, 249 U.S.
96, 1-5.Webb also involved a pharmacist, Jacob Goldbaum. The trial court found that, “within a period of eleven months[,] Goldbaum purchased from wholesalers, in Memphis, thirty times as much morphine as was bought by the average retail druggist doing a much larger general business, and he sold narcotic drugs in 6,500 instances.” Webb
“regularly charged fifty cents for each so-called prescription, and within this period had furnished” over 4,000 such prescriptions.
71 The district court in which Doremus was indicted quashed his indictment, holding that the indictment did “not state an offense against the laws of the United States.” United States v. Doremus, 246 F. 958, 965 (W.D. Tex. 1918).
The Supreme Court had jurisdiction over the appeal pursuant to the Criminal Appeals Act, which gave it original appellate jurisdiction over indictments quashed for an underlying statue’s unconstitutionality. Webb and
Goldbaum’s case came before the Supreme Court as a result of the Sixth Circuit certifying questions concerning the Harrison Act’s meaning and constitutionality.
72 In his motion to quash the indictment in the District Court, for instance, Doremus asserted that Congress lacked the authority to pass the “pretended law” under which he was charged, except for those provisions having to do with taxing narcotics and those dealing with interstate traffic in narcotics. Tr. of Record, United States v. Doremus, 249 U.S. 86 (1919), 7. In their brief to the Supreme Court, Webb and Goldbaum contended the Harrison Act was not a revenue measure. Br. and Argument of W.S. Webb and Jacob Goldbaum, Webb v. United States, 249 U.S. 96, 2-6, 9-10.
Court’s treatment of these laws, the government claimed, demonstrated its reluctance to overturn a measure “because it is claimed to interfere with the reserved powers of the States” or to have been motivated by other purposes. It also argued that, even if the Harrison Act’s main purpose had been to promote a moral or social end, that intent would be insufficient “to render it unconstitutional.”73
In votes much more in keeping with his reputation at the time, Holmes joined 5-4 majorities to uphold the Act in both of these cases. Justice William Day wrote both decisions.74 He acknowledged Congress’s broad discretion over revenue in language that suggested approval of the capacious view of the power that many members of Congress espoused. Echoing Judge Hand, he wrote that, so long as a piece of legislation bore some “reasonable relation to the exercise of the taxing authority,” that alone was “sufficient to sustain it.” That other motivations may have impelled its passage did not “authorize the courts to inquire into that subject.” In upholding the Harrison Act, in other words, the Court gave Congress a broad license to seize on its taxing authority to increase its power over domestic affairs.75 Challenges to congressional power that suggested the national government had claimed a general police power had failed to move the Court.
Day’s opinions in Doremus and Webb reopened the question of how broadly Congress may use its enumerated powers, much debated among the justices only the previous summer. In
73 Pl.’s Br., United States v. Doremus, 249 U.S. 86 (1919), 8-16; Br. on Behalf of the United States, Webb v. United States, 249 U.S. 96, 8-9.
74 The Court explained its reasoning in Doremus. In Webb, it pointed to Doremus to answer two of the Sixth Circuit Court’s questions. As to its third question—whether a physician may lawfully maintain a habitué in “his customary use”—the Court claimed that to call Webb’s orders “for the use of morphine a physician’s prescription would be so plain a perversion of meaning that” word that “no discussion of the subject [was] required.” Webb et al. v United States, 249 U.S. 96, 99-100 (1919).
75 United States v. Doremus, 249 U.S. at 93-4. The popular press appears not to have reported Doremus or Webb widely. A couple of the accounts that did make the newspapers, though, reported on the question of the national legislature’s taxing power involved in the cases. They also ensured readers that the Harrison Act had been found constitutional and explained that the decisions confirmed both that retailers could not sell drugs without a prescription and that physicians could not prescribe drugs to maintain an addict in his or her habit. Wall Street Journal, January 9 1919; March 4, 1919; Atlanta Constitution, March 4, 1919.
September 1916, Congress, acting under its power over interstate commerce, passed a law that made it unlawful to transport across state lines goods manufactured by any business that employed children as laborers. A father with two sons, all employees at a cotton mill in Charlotte, North Carolina, challenged the law as beyond Congress’s power, and Justice Day authored the majority opinion in the case, Hammer v. Dagenhart, that struck down the child labor law on those grounds. He concluded that Congress’s power to regulate interstate commerce did not include the “authority to control the states in their exercise of the police power over local trade and manufacture.” Holmes dissented, arguing that the Court should uphold any act of Congress that lay within its enumerated powers, regardless of the law’s likely effects and Congress’s motivation in passing the law.76
Day’s opinions in the two Harrison Act cases greatly amused Holmes, who saw in them a validation of the view of federal power he had advanced in his Hammer dissent. The opinions certainly offered Holmes a solid basis to accuse Day of an about-face. Day wrote in Doremus, for one example, that, if an act of Congress “has some reasonable relation to the exercise of the taxing authority conferred by the Constitution, it cannot be invalidated because of the supposed motives which induced it.” Holmes read the opinion as adopting his perspective on congressional power. In a letter written to Hand shortly after the Court announced its decisions in the two cases, Holmes claimed:
76 Hammer v. Dagenhart, 247 U.S. 251, 273-74, 277 (1918). Political scientist Samuel Konefsky, who authored studies of several Supreme Court justices, identified Holmes’ dissent in Hammer as driven not by humanitarian concerns—in private correspondence, Holmes had expressed no small degree of skepticism about other labor legislation, including maximum hours laws—but by his insistence on the proper roles of legislator and judge.
Through such dissents, though, Konefsky claims the “social conservative” became the “liberal judge.” In a eulogy of Holmes published in the Columbia Law Review, Karl Llewellyn made a similar point. He noted that the public came to view the socially conservative Holmes as a radical because “he had the detachment to refuse to substitute his judgment for that of the legislature.” Samuel J. Konefsky, The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas (New York: MacMillan, 1956): 111-17; Karl Llewellyn, “Holmes,” Columbia Law Review 35, no.
4 (April 1935): 485-92, 485.
As to the Harrison Drug Act, (between ourselves) I am tickled at every case of that sort as they seem to me to confirm the ground of my dissent in the Child Labor case last term. … Also I think the drug act cases rightly decided. In my opinion Congress may have what ulterior motives they please if the act passed in the immediate aspect is within their powers—though personally, were I a
legislator, I might think it dishonest to use powers in that way.
At least as Holmes read Day’s decision, the Court appeared ready and willing to allow Congress much more assertive uses of its enumerated powers.77
If Congress emerged from Doremus and Webb with judicial approval of its claim to new power, it also found the seeds of more vocal resistance to its presence in the drug control arena.
Chief Justice White, along with Justices McKenna, Van Devanter, and McReynolds, thought the issue simple. Reserving opinion as to the constitutionality of the Act as a whole, he claimed that its application in these actions fell “beyond the constitutional power of Congress” and
characterized the statute as an attempt to exercise the states’ police power.78 McReynolds, especially, would prove a vocal opponent of Congress’s moves to police narcotics, consistently complaining that Congress lacked authority to pass much of the anti-drug legislation it had approved.
McReynolds’ name has long been tied to Lochner-era laissez-faire constitutionalism, and contemporaries, historians, and legal scholars have all charged him with inventing doctrine to serve the wealthy. While his commitment to limited government had already become clear by the
77 United States v. Doremus, 249 U.S. at 93-4. Letter from Oliver Wendell Holmes to Learned Hand, dated April 3, 1919, Oliver Wendell Holmes Jr. Addenda, 1818-1978, Photocopied items and miscellany: Box 8, Folder 8, Hand, Learned, Correspondent, 1918-1919, Historical & Special Collections, Harvard Law School Library. Hand had written to Holmes only a couple of days earlier, in which letter he claimed to have been “amused at the Harrison Law decisions.” In what may be a reference to Day’s efforts to emphasize those portions of the Harrison Act that appeared to most directly relate to revenue collection, Hand joked that the two decisions demonstrated the importance of what he called “importation,” or “being able to infer to Congress purposes you know they didn’t have.” Letter from Learned Hand to Oliver Wendell Holmes, dated April 1, 1919, Oliver Wendell Holmes Jr.
Addenda, 1818-1978, Photocopied items and miscellany: Box 8, Folder 8, Hand, Learned, Correspondent, 1918- 1919, Historical & Special Collections, Harvard Law School Library.
78 United States v. Doremus, 249 U.S. at 94. The same four judges dissented in Webb by referencing White’s four- line dissent in Doremus. United States v. Webb, 249 U.S. at 100.
time the Court heard Doremus and Linder, that intellectual position would receive nationwide publicity in the 1930s. Widely known as the self-styled leader of the “four horsemen,” the group of justices who voted to invalidate many pieces of New Deal legislation, he regularly hosted the other three at his Washington apartment. His hatred of Franklin Roosevelt was well known, as was the President’s hatred of him, and Roosevelt at one point labeled McReynolds the “living antithesis of all that the New Deal represented.” Roosevelt was not alone in his dislike of McReynolds. He earned the enmity of many of his fellow justices, to whom he was famously hostile, reportedly writing comments meant to offend on circulated draft opinions. His anti- Semitism led him to treat Justices Brandeis and Cardozo particularly badly: He turned his back when the former spoke in conference and lobbied against the latter as Hoover considered his nomination. He was, in short, cantankerous, a bigot, and widely detested.79
The descriptions of McReynolds’ jurisprudence contain some truth. He indeed felt strongly that the Constitution protected freedom of contract, and he voted in support of that belief. A recent biographer notes, though, that the justice felt a “deep and abiding commitment to those individual rights which he believed were guaranteed by the Constitution”—a list that included many more personal freedoms than the right to contract, and many of them not expressly in the Constitution.80 His belief that the Constitution guaranteed a litany of unenumerated rights, coupled with a distrust of the administrative state and a concern with federal government overreaching, led McReynolds to spend a decade opposing federal narcotics control in most respects. Aside from his view that only a general police power could fully legitimate the Harrison Act, his concerns over government encroachment on individual rights
79 James E. Bond, I Dissent: The Legacy of Chief Justice James Clark McReynolds (Fairfax: George Mason University Press, 1992), viii-ix, 53-6, 72, 84-5; Dennis J. Hutchinson and David J. Garrow, eds., The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR’s Washington (Chicago: University of Chicago Press, 2002), 36-7.
80 Bond, I Dissent, 72