David Musto, “The Marihuana Tax Act of 1937,” Archives of General Psychiatry 26 (February 1972), pp. 101-8.

Cites: None to the previous Original MTA Historiographers. Musto’s article implicitly criticizes previous authors for failing to consult archival records or take account of historical context, labeling their interpretations as “scapegoating.”

Primary published sources utilized:

MTA House Hearings

FBN Annual Reports, 1931, 1938

National Conference of Commissioners on Uniform State Laws, Uniform Narcotic Drug Act (1932)

Archival sources utilized:

Anslinger Papers

RG 170 (reference to a single document in an FBN file)

Interview with Anslinger (but no transcripts available for other researchers to consult)

Musto took an undergraduate degree in classics, earned an MA in the history of science, and subsequently received an MD. Excepting Armstrong and Parascandola (see “The One that Got Away”), Musto is the only Original MTA Historiographer who possessed formal training in historical analysis. The difference is apparent; although still problematic in many respects, this article nevertheless presents a more sophisticated, historically-contextualized analysis than any previous work on the subject.

Musto’s critique of the previous writers discussed on this page is evident because he did not cite any of their works, though he was clearly aware of the existence of those publications. His final paragraph stated:

Why the marihuana law was so eagerly desired by some and, when enacted, so effectively placating are fundamental questions. From the evidence examined, the FBN does not appear to have created the marihuana scare of the early 1930s nor can the law be simply ascribed to the Commissioner’s determined will. Such scapegoating offers no more than it did in the era when marihuana was blamed for almost any vicious crime. When viewed from the narrow goal of placating fears about an “alien minority,” the Act was serviceable for more than a quarter of a century. For the broader significance of the marihuana law and an understanding of the dynamics involved in prohibitive legislation, the Tax Act must be placed in its cultural and institutional context.

For those unfamiliar with humane academic criticism, here’s a sentence-by-sentence translation:

Musto wrote: "Why the marihuana law was so eagerly desired by some and, when enacted, so effectively placating are fundamental questions."
Musto meant: The previous authors writing about this topic failed provide persuasive answers to those questions, largely because they did not consult relevant sources available to them—that’s why I don’t cite their works in this article.

Musto wrote: "From the evidence examined, the FBN does not appear to have created the marihuana scare of the early 1930s nor can the law be simply ascribed to the Commissioner’s determined will."
Musto meant: I utilized a larger array of evidence, including (a) some archival documents including at least a few FBN records, which were not available at the National Archives, (b) a more comprehensive reading of the contemporary published literature, not only from the 1930s but earlier decades in order to gauge change over time, and, (c) I interviewed Anslinger to gain a perspective not available from any document. That enhanced source base enabled me to consider a more comprehensive array of relevant factors to arrive at a better interpretation when compared to previous authors.

Musto wrote: "Such scapegoating offers no more than it did in the era when marihuana was blamed for almost any vicious crime."
Musto meant: Because they didn’t do sufficient homework and inserted their preconceived assumptions into the analysis, the accounts of previous MTA writers are just as incomplete and prejudiced as they claim Anslinger’s were at the time.

Musto wrote: "When viewed from the narrow goal of placating fears about an “alien minority,” the Act was serviceable for more than a quarter of a century."
Musto meant: The evidence I consulted indicates that MTA was all about optics—the intent was not to actually enforce the law but simply placate mainstream society in Southern and Southwestern states about “Mexicans” at a time when the Great Depression rendered them unpopular because they took jobs away from “Americans.” It worked (i.e. kept the locals from complaining too much) for 25+ years.

Musto wrote: "For the broader significance of the marihuana law and an understanding of the dynamics involved in prohibitive legislation, the Tax Act must be placed in its cultural and institutional context."
Musto meant: Because of their inadequate source base, previous authors didn’t comprehend the full cultural-institutional context. I even considered the international factors that impacted USG policy.

- Musto’s article correctly describes the federal government as reluctant to take any responsibility for marijuana regulation, and relatively accurately identifies the time frame of its policy reversal as “probably” 1935 (p. 102).

- Rather than privileging racism, Musto’s article stresses the economic Depression in explaining why police officials, mayors, and governors, primarily from Louisiana across the southern tier to California, agitated for federal regulation (pp. 103-104). He supports this analysis with greater array of newspaper, magazine, and journal articles than previous MTA authors. Nevertheless, given that the Readers’ Guide to Periodical Literature cited over 200,000 articles between 1934 and 1937 (see my additional comments about this under the "Becker" entry in this section), adding a few more examples of published concern about marijuana still does not constitute a groundswell. Musto also notes that the FBN devoted a few more paragraphs concerning marijuana to its annual reports over the course of the 1930s (p. 104), but the vast majority of each year’s report continued to focus on opiates and secondarily on cocaine. Doubtless “pressure from below” contributed to the FBN’s efforts to secure a law, but the evidence does not support a claim that racism or economic considerations constituted the primary factor in determining timing, configuration, or implementation of the MTA.

- Musto’s article was the first to utilize the January 14, 1937 FBN conference transcript that provides insight into the factors at play as federal officials considered how to fashion legislation (pp. 106-107). Musto highlights the FBN’s interest in securing the input of medical and research experts. Most participants in the conference and federal officials more generally favored control, as would be expected of public servants responsible for the common good; they are predisposed to act with caution and move to protect if they perceive even minor risk. Musto’s account here also provides important context missed by previous writers: the American Medical Association's opposition to FDR’s attempt to include health insurance in the Social Security Act degraded that organization’s credibility with the Democrat-majority congress when the AMA' s Woodard testified at the MTA hearings.

- Musto notes that Anslinger still promoted the UNDA as late as January 1937 (p. 104), but the Commissioner's position was not incommensurate with supporting passage of the MTA.

- Musto cites at several points “oral communication” with Anslinger, apparently a live interview or a phone conversation. If any transcripts of those discussions ever existed, apparently they are now extinct. Musto is not to blame for this; no professional protocol existed in the 1970s requiring historians to generate or maintain transcripts of interviews. Sadly, however, without such a written record, other scholars cannot access and assess that information. The extent to which Anslinger’s memory and his veracity can be relied upon—35 years after events transpired—remains open to interpretation.

- On page 105 Musto’s discussion of the 1936 anti-trafficking treaty negotiations is not inaccurate, but is in some respects incomplete (see my Drug Diplomacy, pp. 120-123).[1] The U.S. had already tried and failed to negotiate a tripartite North American pact to control marijuana. Anslinger and Fuller held out little hope that the 1936 negotiations would produce an agreement at all; they considered it even less likely any such agreement would be acceptable to the United States Senate. The 1936 treaty negotiations did not focus on marijuana. Rather, the meeting represented an attempt to create a worldwide common legal structure and extradition regime. Many governments did not want such a pact for a variety of understandable reasons. Moreover, a successful negotiation required devising stipulations that could be applied within differing national legal systems used over much of the world such as the French Civil Code and English common law. Although many other states represented at the conference signed the treaty upon conclusion of the negotiations, few ratified. The 1936 trafficking treaty entered into force between a few parties in October 1939, but World War II rendered the agreement moribund. The treaty stayed on the international books, dormant, until replaced by the 1988 Illicit Trafficking Convention.[2] The fact that it required an additional 52 years to add this element to the international control regime indicates that the issues impeding agreement in 1936 extended well beyond the specific (and minor at that time) case of marijuana.

- On page 105 Musto overstates the case and evinces incomplete grasp of the law’s provisions:

“It is significant that when marihuana was finally controlled by the federal government, almost all uses were outlawed, with the exception of its use in bird seed (and then only if sterilized). The regulations for its use by physicians were so complicated that possibly no general physician has legally prescribed it since 1937.”

The first statement is incorrect. See the Doughton Papers sub-page under “Images of Archival Documents” section. Moreover, within five years the federal government instituted a massive cannabis cultivation program to provide cordage as an essential war material. No facts have come to light that support the second sentence. Moreover, Armstrong and Parascandola (see “The One That Got Away”) highlight the relative boom in cannabis research in the decade after the MTA’s passage. Finally, Musto’s statements do not recognize the distinction between parts of the plant that are, and are not, considered “marihuana” under the law, which is essential to understanding the MTA’s intent and implementation.

[1] https://treaties.un.org/doc/Treaties/1936/06/19360626%2006-49%20AM/Ch_VI_12_ap.pdf

[2]https://www.unodc.org/documents/commissions/CND/Int_Drug_Control_Conventions/Ebook/The_International_Drug_Control_Conventions_E.pdf