Allowing Hemp Cultivation: WWFD?

ONCE UPON A TIME, THE FEDERAL GOVERNMENT COULDN’T BAN A PRODUCT SIMPLY BECAUSE IT WANTED TO

A bill pre-filed in the South Carolina Senate will likely attract a lot of attention. The legislation – S.839  (more of our analysis on the bill here) – is indirectly related to one of the most discussed political issues of the day: governmental regulation of marijuana and, more broadly, of the cannabis plant. The proposal, however, is not an attempt to legalize marijuana. Rather it would legalize the production of industrial hemp – a fiber and oilseed product that is derived from certain variations of the cannabis plant. The bill also includes provisions that would make it a crime to grow marijuana in fields dedicated to cultivating industrial hemp.

While such a bill may receive a good deal of attention and be considered controversial in present day America, it would have been a non-issue in the founders’ time. The United States has come a far way from the eighteeenth and much of the nineteenth centuries – when regulation of drug use was largely left to the private sphere – to the current stringent federal prohibitions on a plethora of drugs. As the National Commission on Marijuana and Drug Abuse reported in 1973 in their second report, until the late nineteenth century, America’s drug policy consisted only in laws (largely at the state level) regulating alcohol distribution, pharmacies, smoking in certain places, and  the distribution of poison. It wouldn’t have crossed the minds of early Americans to ban cultivation of a plant like hemp (as the U.S. did in 1970) that could be turned into a large variety of useful products (rope, paper, fuel, foods, etc.) merely because it came from a plant related to that which produces marijuana. In fact, hemp was long considered a cash crop, and both Thomas Jefferson and George Washington grew hemp on their private estates.

This does not mean the founders were engaged in the production of marijuana, only that such action would not have been illegal at the time. Industrial hemp, while derived from a variation of the cannabis plant, has a THC content (the active compound in marijuana) of only .005 to 1 percent, in contrast to marijuana, which has a 3 to 20 percent THC content. Hemp is near useless as a narcotic.

Aside from practical questions about the banning of a harmless and useful product, the plain text of the U.S. Constitution reveals another problem with federal prohibition of any goods. In Article 1 Section 8, the Constitution enumerates the powers of Congress, none of which include issuing prohibitions against the manufacturing or cultivation of economic goods. Such a prohibition would require federal enforcement and punishment for violating the prohibition since the federal government cannot compel the states to enforce federal law. Further, the only crimes the Constitution does grant the national government the power to provide punishment for are counterfeiting and piracy/felonies on the high seas. Before a long period of judicial activism, the prohibition of any good other than counterfeit money would have been seen a state role, not a federal one (if indeed such a prohibition were considered at all, which is exceedingly doubtful).

During the late eighteenth and early nineteenth centuries, any proposed federal ban on industrial hemp would have met with incomprehension and opposition, on both practical and constitutional grounds. Further, the idea of states declining to assist in the enforcement of an unconstitutional federal ban would not have been seen as particularly radical. These attitudes may be returning, however: ten states have already taken steps towards allowing the cultivation of hemp.

For the Founders, the only thing controversial about S.839 would have been the need to pass it in the first place.