The Drug War vs. the Constitution: 1928 Edition

Prof. Gerard Magliocca of Indiana University has been doing historical work on the Supreme Court’s “Four Horsemen”—the Justices who dug in to resist FDR’s constitutional revolution in the 1930s—and is coming up with many noteworthy tidbits. Among them is a dissenting opinion by arch-conservative James McReynolds in a 1928 case called Casey v. U.S. At issue was a man’s conviction under a federal statute providing that if an individual was found to possess morphine derivatives without official stamps, it would be prima facie evidence of having obtained them from unlawful sources. Five Justices, led by Holmes, upheld Casey’s conviction, while four (McReynolds, Brandeis, Butler, and Sanford) dissented on various grounds. Here’s McReynolds:

The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.

Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, the presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.

Probably most of those accelerated to prison under the present act will be unfortunate addicts and their abettors; but even they live under the Constitution. And where will the next step take us?

When the Harrison Anti-Narcotic Law became effective, probably some drug containing opium could have been found in a million or more households within the Union. Paregoric, laudanum, Dover’s Powders, were common remedies. Did every man and woman who possessed one of these instantly become a presumptive criminal and liable to imprisonment unless he could explain to the satisfaction of a jury when and where he got the stuff? Certainly, I cannot assent to any such notion, and it seems worthwhile to say so.

Ironic, or maybe not so, that cane-waving mossbacks like McReynolds often showed a stronger commitment to principles of civil liberty than much-hailed progressives like Holmes.