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Drug Law Exceptionalism?

Updated: Aug 30, 2023

One of the rewards of blogging is an instant boost to your awareness of what others are doing with the same sort of forum.  Among other places, it’s led me to Mexican Opium, a (short-term?) blog project by law student Mikelis Beitiks.  I’m sure my co-Managing Editor would be happy to learn that the blog is at least partly a forum for work that wasn’t published in traditional journal format.  For me, I’m happy to see more work being done on the legal foundations of our war on drugs.  Here’s why:

The enactments of drug laws have received a lot of attention.  Indeed, as I noted in an earlier post, I think they probably receive relatively more attention than they deserve.  It tends to divert our attention to the remarkably disturbing history of those laws in action, to say nothing of informal social dynamics around psychoactive substances.  But there’s an irony here.  Although modern drug law enactments and their treatment in the courts (and here I’m speaking from the vantage point of United States history) have been given a lot of time, they’ve too often been studied in isolation.  The more that happens, the more we drift into a kind of “drug law exceptionalism” in which everything is assumed to have a kind of weird uniqueness.

Back to Mikelis Beitiks for a moment.  Here’s his most recent post, “Drugs? Law? How?” in which he looks back at a really interesting 1890 court decision from Washington State (Territory v. Ah Lim).  Read this post.  Go back and read the case!  Terrific stuff, and I’m grateful to Beitiks for digging it up again.  The question he poses is a good one: why exactly do we talk about “government and personal  drug use in the same sentence?”  The answer he comes up with is that it had, at least in Territory v. Ah Lim, has a lot to do with the users–in this case, opium smoking Chinese.  So far, so good.  But how exceptional is that? I daresay there’s a whole lot of 19th (and 20th) century policy making and judging informed by dread/fear/suspicion of the racial/sexual/cultural “other”–what makes us think drugs would be any different?  Of course, that’s just another way of saying things are generally even worse than you’d imagine.  But there are greater problems with exceptionalism than just forgetting that things are bad everywhere.

One that I’d like to talk about is the danger of becoming unmoored from context.  Let me quote just a bit from Beitiks here, talking about the author of the Territory v. Ah Lim decision: “At the time, the idea of a law banning personal drug use would have been seen as a comically overextended stretch of government power. So, Dunbar finds himself in a position of defending a law that most 1890s Washingtonians would have found inexcusably invasive if it affected them, but support because it target the opium-smoking Chinese.”  Maybe.  But what was the state of alcohol prohibition in 1890?  There were already state-level prohibition laws in place by then.  Indeed, what of the use of the criminal law to police personal moral behavior more generally.  William J. Novak, writing in The People’s Welfare, argues that [p. 149] “of all the contests over public power in that period [the 19th century], morals regulation was the easy case.”  Later, he observes [p. 157] that “despite such sentimental attachment to houses as quintessentially private spheres, public realities intruded all the time.”  So to what extent would Dunbar’s opinion in this case really have been that shocking?  How much did it really depend on the force of anti-Chinese sentiment to make sense to those that read it at the time?  Indeed, do the existence of a whole range of controls on public morals suggest that the foundations of our drug laws are multiple, and hard to reduce to a single variable like hostility to particular groups of users?

Please note that I’m not in any way suggesting that anti-Chinese sentiment wasn’t a large part of the enactment of laws targeting smoking opium, and the subsequent enforcement of those laws.  That would almost go without saying, if it didn’t bear repeating so much. But, we simply cannot study drug laws in isolation, or we risk failing to understand all of the dimensions of this particular exercise of state power.

Final note: I want to stress that I’m delighted to have found Beitiks’ Mexican Opium. Good for him for re-plowing this particular field.  It is long overdue.  His posts are beautifully written, and I’ll keep reading.

UPDATE (January 26, 2011): Beitkis has produced a thoughtful reply to this post, which you can read here.

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